Correction Notice: This review by Patrick Webb appeared in CJCCJ 58.4 with an error. The reviewer’s affiliation was incorrect and should have read Saint Augustine’s University. The CJCCJ apologizes to the reviewer for this error.
Facts Matter: A Study into the Casuistry of Substantive International Criminal Law
By Marjolein Cupido
The Hague: Netherlands. Eleven International Publishing. 2015.
In Facts Matter, A Study into the Casuistry of Substantive International Criminal Law author Marjolein Cupido provides a concise and reflective argument for the efficacy of considering the role of context in the study and application of international criminal law. By examining the functions, processes and impact of ad hoc Tribunals and the International Criminal Courts, the text offers a thorough and insightful description of a legal process that fosters the need for critical thinking and exploratory inquiry.
In Chapter 1, Prologue: A Plea for a Casuistic Approach to International Criminal Law, the author initiates a discussion regarding the philosophical basis of justice by emphasizing the application of law within the context of case-by-case circumstances; referred to as casuistry. This serves as the basis of the text as well as the premise for the development of international criminal law which encompasses several key aspects including creativity, appraisal, and judicial reasoning. The concept of casuistry is further explored by identifying its process of legal development and judicial reasoning through the venue of collaborative aspects among practitioners (i.e., legislator, judiciary, etc.). The chapter concludes by pointing out the methods, applications, strengths and deficiencies of casuistry within the context of domestic and international law.
Chapter 2, entitled The Policy Underlying Crimes Against Humanity: Practical Reflections on a Theoretical Debate, delves into the whether the existence of policy serves as evidence of crime against humanity. The details of this debate are manifested by identifying arguments on both sides of the topic. This includes the need for establishing distinctive aspects which separate such offenses from other crimes (i.e., domestic) as well as the redundant nature of the legal requirement. To underscore these assumptions, two examples of case law are provided which identifies the complexities, reservations, and implications of policy application. The chapter concludes by discussing the process of judicial reasoning using contextual evidence, factor-based deduction, and the use of legal precedent.
Chapter 3, Pluralism in Theories on Liability: Joint Criminal Enterprise versus Joint Perpetration, explores the process of seeking theories that explain international crimes. This includes an emphasis related to the basis of criminal behavior which involves the act or commission of a crime as well as intent. Through a series of observations (i.e., case laws, examples, etc.) both objective and subjective illustrations are identified. The chapter concludes with an analysis which highlights the use of theories that explain international criminal behavior which includes a variety of components such as context, the nature of crime, and the interactive dynamics of governing bodies.
Chapter 4, The Contextual Embedding of Genocide: A Casuistic Analysis of the Interplay between Law and Facts, examines the definition of the term genocide for the purpose of demonstrating the efficacy of casuistic reasoning. This approach is initiated by a scholarly debate regarding the conceptual meaning of the term which includes the notion of intent and the manifestation of collective activity. Examples related to the contextual application of the term are provided through Ad hoc Tribunals and the International Criminal Courts. The chapter concludes by emphasizing the need for balance between judicial creativity and consistency in relation to the study of genocide within international law.
In Chapter 5, Epilogue: Developing a Casuistic Framework of Judicial Reasoning, the author summarizes the need for a contextual understanding in the application of international criminal law. This is followed by a reflective and critical assessment of ad hoc Tribunals and the International Criminal Courts which leads to series of remedial recommendations (i.e., models of legal reasoning). The chapter concludes with a summary of observations which will advance the study and development of international criminal law.
Saint Augustine’s University