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Cosmopolitan Subjects: Critical Reflections on Dualism, International Criminal Law and Sovereignty

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Lessons for the African Union from the Yugoslavia Tribunal

Is contemporary international criminal law (icl) compatible with sovereignty and traditional international law (il) as it is comprehended by the doctrine of Dualism, as understood by the great majority of international jurists, scholars, government representatives and those working at the tribunals? What the literature has entirely missed is that three most important figures in the initial creation and institutionalization of ilc for the Yugoslavia Tribunal in 1994 – Antonio Cassese, Cherif Bassiouni and Theodor Meron – all shared a commitment to a monistic view based on expansive and radical interpretation of icl in which international criminal jurisdiction (iicj) – because it makes individuals its sole legal subject – as radically legally, politically and even ontologically incompatible with – and inherently to superior – sovereignty, as well as all those institutions based on traditional sovereign il (e.g., international humanitarian law, the un Charter system, and human rights). Normatively, they call for “the humanization” or individualization of international law marked by direct and unmediated relationships between iicj institutions and the individual. Practically, they acknowledge icl’s basis in modern statist domestic criminal law and Security Council power means that it is necessarily a unitary, top-down and subjecting power, incompatible with the claims of both dualists and pluralists. If the monists are correct, the African Union (au) must be very careful not to presume that what one likes about international courts (African, treaty- or sovereignty based tribunals) can be easily separated from what one does not like (unsc power, icc), because it was icl itself, not the tribunals, which is fundamentally anti-sovereign. As a result, this article concludes that icl itself is now too closely ground in iicj to think that it could be separated in an African court.

Affiliations: 1: Department of Anthropology, Center for African Studies, Stanford UniversityStanford,


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