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2018 Journal of International Criminal Justice Prize – Blog Post by Talita de Souza Dias

I am humbled and honoured to be the recipient of the 2018 Journal of International Criminal Justice (JICJ) Prize. I am also thankful to the Cassese Foundation and the Editors of the Journal for this award. From my early studies on international criminal law to this very day, my work has always been inspired by Cassese’s legacy, which both the JICJ and the Foundation have helped keep alive. I remember that the very first textbook of international criminal law which I bought some 10 years ago was Cassese’s and, although its pages are a little worn out today, I still take it off my shelf on a regular basis. But it’s not just his books, articles and separate opinions that have helped me become the international criminal lawyer that I am today. It is Cassese’s determination to transform international criminal justice that motivates me to at least try to do the same.

The prize will assist me in concluding the research which has led to the prize-winning article ‘The retroactive application of the Rome Statute in cases of Security Council referrals and ad hoc declarations: An appraisal of the existing solutions to an under-discussed problem’. This article stems from my doctoral studies at the University of Oxford, which look more broadly at the principles of legality and fair labelling in international criminal law. I am particularly interested in a phenomenon which has been referred to as ‘retroactive recharacterisation’ or ‘reclassification’ of crimes. This occurs when the crimes or other rules of substantive criminal law binding on the accused at the time of the conduct (the ‘applicable law’) are subsequently replaced by different rules which did not previously apply to them. For instance, although crimes against humanity did not exist as such before 1945, they were applied to the defendants in the Nuremberg trial on the basis that the same acts either amounted to war crimes or ordinary crimes.

This phenomenon permeates the history of international criminal law, from Nuremberg and Tokyo, to the International Criminal Tribunal for the Former Yugoslavia (ICTY) and, more recently, the International Criminal Court (ICC). And yet there is very little discussion of the fairness of this process or the specific legal challenges it raises in respect of the accused’s rights. Of particular relevance are the principles of legality and fair labelling. The first protects individuals from the retroactive application of more severe rules of substantive criminal law. The second requires that criminal labels be representative of the accused’s moral blameworthiness. In my thesis, the questions that I am trying to answer include: What are the exact elements of both principles in international law today, and what do they have to say about retroactive recharacterisation of crimes?

Upon completion of this project, I am hoping to move to different areas of research in international criminal law. My idea is to conduct a study on the legal effect of final criminal judgements and decisions rendered by the ICC and other international criminal tribunals on domestic civil claims for reparation of harm caused to victims. Knowing this is important for two main reasons. First, even if some of those tribunals can award reparations, their proceedings cannot accommodate all victims of international crimes or compensate for all the harm caused to them. Second, these tribunals can only issue a reparations order if there is conviction, even if they find in an acquittal that victims suffered harm as a result of international crimes. This is a big project and I hope I can get the necessary funding to be able to conduct it. It will help clarify not only how victims can presently obtain reparations for international crimes domestically, but also propose the most effective legal avenue through which they can do this. I strongly believe that the 2018 JICJ Prize will open the doors which will lead me to this project, and will help me play my small part in Cassese’s bigger plan to transform international criminal justice for future generations.

 Talita de Souza Dias, DPhil Candidate & Tutor in Public International Law and International Criminal Law, Balliol College, University of Oxford; Teaching Fellow in Public International Law at Royal Holloway, University of London.