Person: Aksenova, Marina
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Marina
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Aksenova
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IE University
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IE Law School
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Public Law and Global Governance
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Publication The Future of the International Criminal Court: A Non-human Rights Body?(Cambridge University Press, 2018-10-11) Aksenova, Marina; De Hert, Paul; Smis, Stefaan; Holvoet, Mathias; https://ror.org/02jjdwm75Discussion about the interaction between human rights law (HRL) and international criminal law (ICL) is gaining momentum in scholarly circles. This is not unexpected. Human rights issues are continuously lurking in the background of international criminal trials. It is difficult to imagine international criminal justice without its HRL component – legal guarantees afforded to different parties in the process as well as principles underlying substantive offences in international law. The Rome Statute of the International Criminal Court (ICC) expressly requires that the legal sources used by the Court must be interpreted consistently with internationally recognised human rights standards. The relevance of HRL for international criminal trials seems to be implicitly acknowledged, but is rarely studied or analysed systematically. However, can one equate the ICC to a human rights body? To what extent does its mission converge with the mandate of its regional human rights counterparts – the European Court of Human Rights (ECtHR) and the Inter- American Court of Human Rights (IACtHR) – in upholding and reinforcing human rights? Vasiliev has argued that there exists a strong normative pull to ensure the tribunals’ (and presumably the ICC's) conformity with HRL. It results in an informal hierarchy, in which deference to human rights courts is seen as an aspect of good judging. This tendency stems from a concern shared by both sets of courts to protect human rights from abuses as well as to ensure fair administration of criminal justice. Informal supremacy of human rights case law – or ‘the asymmetry of influence’ – is the result of the uneven mutual substantive relevance of the two disciplines reinforced by the expectation that the ad hoc tribunals would treat human rights jurisprudence with deference – a belief internalised by international judges. Vasiliev has acknowledged the links between ICL and IHRL, but has argued against the normative rhetoric of ‘cross-fertilisation’ – widely accepted in scholarly circles – as it misconstrues the tribunals’ engagement with the regional human rights courts and is incapable of enhancing human rights compliance by the ad hoc tribunals. This chapter continues this line of discourse by invoking an empirical example evidencing the limitations that the ICC faces when incorporating human rights norms in its judicial reasoning.Publication The Emerging Right to Justice in International Criminal Law: A Case Study of Colombia(Cambridge University Press, 2019-06) Aksenova, Marina; Scheinin, Martin; https://ror.org/02jjdwm75This chapter uses the case study of Colombia to argue that there is an emerging right to justice born out of the aspirations of international criminal law. This right comprises several elements, each finding its own unique realisation in the context of Colombia’s transition to peace. More specifically, the chapter discusses the right to see perpetrators of mass atrocities held accountable, the right to peace and reconciliation, the right not to face repetition of collective violence, victims’ right to justice, the right to truth, and, finally, the right to local administration of justice. The International Criminal Court (ICC) plays a role in enforcing these various elements of the overarching right to justice but with clear limitations dictated by the nature of international criminal law as a discipline relying on State cooperation and its own moral appeal. Such process is best understood if one sees the ICC as the enforcer at the domestic level of the generic right to justice.Publication Reinventing or rediscovering international law? The Russian Constitutional Court’s uneasy dialogue with the European Court of Human Rights(Oxford University Press, 2019-01-21) Aksenova, Marina; Marchuk, Iryna; https://ror.org/02jjdwm75This article discusses interactions between the Constitutional Court of the Russian Federation and the European Court of Human Rights. More specifically, it critically examines evolving legal reasoning of the CC with respect to its interpretation of international law. Furthermore, it reflects on broader implications of the CC’s recent rulings that reaffirm the primacy of the Constitution of the Russian Federation over the ECtHR judgments in part where they appear to be contrary to the constitutional law provisions. These rulings are anticipated to have a long-lasting effect on the Russian legal system. They reflect a changing relationship between international and domestic law and signal a shift in Russia toward a more autonomous understanding of international law rooted in the principle of sovereignty that differs from the Western narrative of the discipline. Even more broadly, these emerging new interpretations support the idea of fragmentation of international law not only from a strictly legal perspective—as a plethora of conflicting sources of law—but also from a socio-legal perspective as a discipline harboring conflicting narratives.Publication Introduction: Breaking the Cycle of Mass Atrocities: Criminological and Socio-Legal Approaches to International Criminal Law.(Bloomsbury, 2020-12-17) Aksenova, Marina; https://ror.org/02jjdwm75It is evident from the on-going debates on whether state policy is an element of crimes against humanity that this category of core international crimes still struggles with establishing its own identity. Originally conceived at Nuremberg as an extension of war crimes, it grew into an independent and ambitious legal category, which seeks to address gross human rights abuses committed on a massive scale in peace- and wartime alike. At the same time, this group of offences breeds a lot of ambiguity because of its over reliance on customary international law. With all the fluidity engendered by the weak legal foundation, where to find justification for international prosecution of crimes against humanity? This paper invokes criminologically related work of Emile Durkheim to support the claim that moral legitimacy of crimes against humanity as a group of offences flows from the feelings collectively shared by individuals across state borders. Repulsion towards certain acts is ingrained in the consciousness of people worldwide.Publication Setting the scene: The use of art to promote reconciliation in international criminal justice(Cambridge University Press, 2020-02-18) Aksenova, Marina; Rieff, Amber; https://ror.org/02jjdwm75This article maps out the landscape holding and connecting three interrelated phenomena: art, international criminal justice, and reconciliation. We argue that reconciliation, viewed as a restoration process, is one of the goals of international criminal justice. Yet, its attainment through law is challenging because international criminal justice, strictly construed, is outcome oriented. Art can serve as a ‘bridge’ linking normative legal standards with their reconciliatory aspirations. The key argument is therefore that art has the clear ability to mediate and amplify the law’s restorative potential through three key features. Firstly, art reflects the complexity of the human condition and reserves a place for emotional processing. Secondly, it is a useful relational tool in opening the space for dialogue, the latter being essential for reconciliation. Lastly, art has the capacity to translate legalistic findings into a language accessible to a wider audience.Publication Symbolic Expression at the International Criminal Tribunal for the Former Yugoslavia(Oxford Academic, 2020-06-11) Aksenova, Marina; Stahn, Carsten; Agius, Carmel; Brammertz, Serge; Rohan, Colleen; https://ror.org/02jjdwm75The chapter argues that, at the creation of International Criminal Tribunal for the former Yugoslavia (ICTY), conditions were ripe for establishing this kind of forum. The ICTY was instituted with one overarching aim: condemnation of evil deemed universal. The language of the UN Security Council resolutions demonstrates an intensifying concern over offences committed in the Balkan war. The overarching purpose of the tribunal was symbolic—to uphold the value of human dignity through the ritual of criminal prosecutions in the light of the inability of local actors to prevent further escalation of atrocities. The chapter relies on two theoretical frameworks to support its claim: the theory of discourse analysis developed by Michel Foucault, projecting the ICTY’s power outwards focusing on the content of its input, and an anthropological exploration of the symbolic nature of rituals by Maurice Bloch, identifying the structure within which this content is generated.Publication Global Citizenship and the Right of Access to Justice: Adapting T.H. Marshall’s Ideas to the Interconnected World(Project MUSE, 2023) Aksenova, Marina; https://ror.org/02jjdwm75The right of access to justice is both procedural and substantive in nature. It is procedural because it guarantees availability of certain recourse mechanisms, not necessarily limited to a purely judicial route. It is also a substantive entitlement allowing for the enforcement of the idea of justice as fairness in each unique factual context. The right of access to justice as an attribute of the emerging global citizenship denotes our shared understanding that accountability comes in many forms and shapes, which are becoming gradually available to individuals and grassroots organizations on a global scale. This trend is powered by the technological advancements and the evolution of institutions tasked with ensuring world-wide interconnectedness. This paper critically engages with Thomas Marshall's essay on citizenship published in 1950, arguing that despite several limitations that became apparent in recent decades, this work is an important signpost on the road to building a comprehensive account of global citizenship as a status belonging to all of humanity.Publication Corporate Complicity in International Criminal Law: Potential Responsibility of European Arms Dealers for Crimes Committed in Yemen(Washington University, 2021-04-13) Aksenova, Marina; https://ror.org/02jjdwm75This article examines the question of corporate complicity within the framework of international criminal law and, more specifically, at the International Criminal Court (ICC). It does so by referencing a communication to the ICC filed by several non-governmental organizations, inviting the prosecutor to examine potential criminal responsibility of several European corporate officials who are knowingly supplying weapons to the United Arab Emirates/Saudi-led coalition currently engaged in a military offensive in Yemen. This submission raises an important legal question of whether the ICC’s Rome Statute provides for the possibility to hold corporate officials accountable in cases of complicity in gross human rights and humanitarian law violations. This article purports to answer this question by scrutinizing two specific provisions of the Rome Statute: Article 25(3)(c), which discusses aiding and abetting for the purpose of facilitating the commission of a crime, and Article 25(3)(d), which criminalizes contributions to the commission of a crime by a group of persons acting with a common purpose.Publication Creative Potential of Reparations at the Inter-American Court of Human Rights and the International Criminal Court(Suffolk University, 2020) Aksenova, Marina; https://ror.org/02jjdwm75This article critically reflects on the practice of symbolic reparations with artistic value at the Inter-American Court of Human Rights (IACtHR). The IACtHR is more "experienced" than the International Criminal Court (ICC) in ordering reparations in general and symbolic reparations with creative potential, in particular. This article examines several distinctive features of such reparations in the practice of the IACtHR and assesses their relevance to the nascent practice of reparations at the ICC. It is argued that this type of remedy has capacity to embrace multiple narratives, address collective interests, fill in the gap between responsibility in a strictly legal sense and a broader acknowledgement of a violation, and finally 'fix' the event in time for the purposes of the preservation of memoryPublication Conclusion: Universality, dignity, and the five great elements(Edward Elgard, 2023-05-18) Aksenova, Marina; Gantheret, Fiana; Guibert, Nolwenn; Stolk, Sofia; https://ror.org/02jjdwm75The concluding chapter builds bridges between the notions of art and aesthetics, human rights, universality, and dignity. The fields of aesthetics and human rights strive towards universality that transcends identities. Our ability to appreciate beauty is universal even if individual tastes differ with respect to the specific artistic object. Human rights discourse embraces universality in the form of human dignity - an irreducible core uniting all people and rendering them worthy of rights and duties simply by virtue of existing. The second part of the chapter draws on Indian philosophy in exploring the idea of universality through the five great elements - earth, water, fire, air, and space. Each element corresponds to a set of principles governing all of life, including solidity, fluidity, and transformation. Each chapter in this volume is then brought under this classification based on intuitive insight.