Barrie Sander
Assistant Professor of International Justice at Leiden University - Faculty of Governance and Global Affairs. Research interests include: international criminal law, international human rights law, and digital technology and international law.
less
Related Authors
InterestsView All (70)
Uploads
Books by Barrie Sander
The book argues that international criminal courts are host to struggles for historical justice, discursive contests between different actors vying for judicial acknowledgement of their interpretations of the past. By examining these struggles within different institutional settings, the book uncovers the legitimating qualities of international criminal judgments. In particular, it illuminates what tends to be foregrounded and included within, as well as marginalised and excluded from, the narratives of international criminal courts in practice. What emerges from this account is a sense of the significance of thinking about the emancipatory limits and possibilities of international criminal courts in terms of the historical narratives that are constructed and contested within and beyond the courtroom.
Papers by Barrie Sander
This article develops a unique typology of expressivist perspectives within the field of international criminal justice, distinguishing between: instrumental expressivism, which concerns the justification of different practices of international criminal courts in terms of the instrumental value of their expressive qualities; interpretive expressivism, which concerns the identification of expressive avenues for improving the sociological legitimacy of international criminal courts; and critical expressivism, which concerns the illumination of the expressive limits of international criminal courts, as well as unveiling the configurations of power that underpin the messages and narratives constructed within such courts in different institutional contexts.
Reflecting on the limitations of these perspectives, the article elaborates a nascent strand of expressivism – strategic expressivism – which examines whether and how different actors in the field may harness the expressive power of international criminal justice in line with their strategic social and political agendas.
Taking these concerns as its point of departure, this paper argues for greater specificity in evaluating the silence of States in the cyber context by distinguishing between three distinct types of peacetime security threats: cyber attacks, cyber espionage, and cyber information operations. Cyber attacks and cyber espionage are technical security threats which involve breaking into and targeting information and communications technologies. The primary distinction between the two is in the nature of the payload to be executed while a cyber attacks payload is destructive, a cyber espionage payload acuires information non-destructively. Cyber information operations are content-based security threats which involve harnessing the power of online information to cognitively target human intelligence.
Relying on this typology, this paper highlights how State silences concerning the application of international law to peacetime cyber operations are not uniform, but vary in terms of their targets, scope and rationale depending on the particular security threat under examination. It is suggested that these variations not only reveal an important dimension of the politics of international law, but are also salient to how the silence of States in different cyber contexts may be evaluated. Contrary to the tendency to automatically cast State silences in a negative light, this paper reveals that silences can perform different and sometimes constructive functions that are yet to be fully acknowledged or appreciated.
Adopting a critical perspective, the chapter begins by unveiling and questioning the assumptions that underlie the dominant justificatory theories of international criminal punishment – namely, retributivism, utilitarianism, and expressivism. By probing these assumptions, the chapter reveals how incarcerative punishment for international crimes may be inappropriate in certain contexts. To raise this prospect is not to imply that it is appropriate to ignore the commission of international crimes, but rather to argue in favour of an openness to pluralise how local and international communities respond to mass atrocity situations in practice.
In this spirit, the chapter examines two alternative visions of post-conflict justice, which would mark a shift away from the model of incarcerative punishment that currently dominates the field. One alternative vision would be reformist in nature, retaining the core tenets of international criminal justice in its present form, but relying on non-incarcerative measures to communicate and redress the wrongfulness of an individual’s acts and omissions. A more radical vision for post-conflict justice would entail a more fundamental shift away from criminal justice towards political and social justice.
The underlying ambition of the chapter is to demonstrate that the choices facing post-conflict societies are not binary – namely, either to implement the received wisdom of incarcerative punishment, on the one hand, or the vacuum of impunity, on the other. Rather, it is possible to imagine a more plural set of visions of post-conflict justice, stretching far beyond the imposition of incarceration to include diverse conceptions of criminal, political and social justice.
Against this background, this paper seeks to map the different modalities by which international lawyers have attempted to promote and preserve cybersecurity to date. The paper begins by identifying two of the most common modalities of engagement: first, as law-articulators, international lawyers have sought to identify the extent to which existing international legal frameworks already apply to cyber activities; and second, as law-entrepreneurs, international lawyers have sought to devise new international rules to respond to the unique challenges posed by cybersecurity. Bearing in mind the limits of these forms of engagement, the post identifies the emergence of a third modality: as norm-articulators and norm-entrepreneurs, international lawyers are beginning to broaden their perspective beyond international cyber law towards a concern for global cyber norms.
Ultimately, the paper aims to shed light on the politics of these different modalities of engagement – where “politics” is understood to refer to the choices confronted by international lawyers in their attempts to respond to perceived problems of the world with a view to managing them. In this vein, the paper seeks to offer a clear illustration of how the engagement of international lawyers in a particular context constitutes an expression of the political.
The book argues that international criminal courts are host to struggles for historical justice, discursive contests between different actors vying for judicial acknowledgement of their interpretations of the past. By examining these struggles within different institutional settings, the book uncovers the legitimating qualities of international criminal judgments. In particular, it illuminates what tends to be foregrounded and included within, as well as marginalised and excluded from, the narratives of international criminal courts in practice. What emerges from this account is a sense of the significance of thinking about the emancipatory limits and possibilities of international criminal courts in terms of the historical narratives that are constructed and contested within and beyond the courtroom.
This article develops a unique typology of expressivist perspectives within the field of international criminal justice, distinguishing between: instrumental expressivism, which concerns the justification of different practices of international criminal courts in terms of the instrumental value of their expressive qualities; interpretive expressivism, which concerns the identification of expressive avenues for improving the sociological legitimacy of international criminal courts; and critical expressivism, which concerns the illumination of the expressive limits of international criminal courts, as well as unveiling the configurations of power that underpin the messages and narratives constructed within such courts in different institutional contexts.
Reflecting on the limitations of these perspectives, the article elaborates a nascent strand of expressivism – strategic expressivism – which examines whether and how different actors in the field may harness the expressive power of international criminal justice in line with their strategic social and political agendas.
Taking these concerns as its point of departure, this paper argues for greater specificity in evaluating the silence of States in the cyber context by distinguishing between three distinct types of peacetime security threats: cyber attacks, cyber espionage, and cyber information operations. Cyber attacks and cyber espionage are technical security threats which involve breaking into and targeting information and communications technologies. The primary distinction between the two is in the nature of the payload to be executed while a cyber attacks payload is destructive, a cyber espionage payload acuires information non-destructively. Cyber information operations are content-based security threats which involve harnessing the power of online information to cognitively target human intelligence.
Relying on this typology, this paper highlights how State silences concerning the application of international law to peacetime cyber operations are not uniform, but vary in terms of their targets, scope and rationale depending on the particular security threat under examination. It is suggested that these variations not only reveal an important dimension of the politics of international law, but are also salient to how the silence of States in different cyber contexts may be evaluated. Contrary to the tendency to automatically cast State silences in a negative light, this paper reveals that silences can perform different and sometimes constructive functions that are yet to be fully acknowledged or appreciated.
Adopting a critical perspective, the chapter begins by unveiling and questioning the assumptions that underlie the dominant justificatory theories of international criminal punishment – namely, retributivism, utilitarianism, and expressivism. By probing these assumptions, the chapter reveals how incarcerative punishment for international crimes may be inappropriate in certain contexts. To raise this prospect is not to imply that it is appropriate to ignore the commission of international crimes, but rather to argue in favour of an openness to pluralise how local and international communities respond to mass atrocity situations in practice.
In this spirit, the chapter examines two alternative visions of post-conflict justice, which would mark a shift away from the model of incarcerative punishment that currently dominates the field. One alternative vision would be reformist in nature, retaining the core tenets of international criminal justice in its present form, but relying on non-incarcerative measures to communicate and redress the wrongfulness of an individual’s acts and omissions. A more radical vision for post-conflict justice would entail a more fundamental shift away from criminal justice towards political and social justice.
The underlying ambition of the chapter is to demonstrate that the choices facing post-conflict societies are not binary – namely, either to implement the received wisdom of incarcerative punishment, on the one hand, or the vacuum of impunity, on the other. Rather, it is possible to imagine a more plural set of visions of post-conflict justice, stretching far beyond the imposition of incarceration to include diverse conceptions of criminal, political and social justice.
Against this background, this paper seeks to map the different modalities by which international lawyers have attempted to promote and preserve cybersecurity to date. The paper begins by identifying two of the most common modalities of engagement: first, as law-articulators, international lawyers have sought to identify the extent to which existing international legal frameworks already apply to cyber activities; and second, as law-entrepreneurs, international lawyers have sought to devise new international rules to respond to the unique challenges posed by cybersecurity. Bearing in mind the limits of these forms of engagement, the post identifies the emergence of a third modality: as norm-articulators and norm-entrepreneurs, international lawyers are beginning to broaden their perspective beyond international cyber law towards a concern for global cyber norms.
Ultimately, the paper aims to shed light on the politics of these different modalities of engagement – where “politics” is understood to refer to the choices confronted by international lawyers in their attempts to respond to perceived problems of the world with a view to managing them. In this vein, the paper seeks to offer a clear illustration of how the engagement of international lawyers in a particular context constitutes an expression of the political.
Taking these progress claims as its point of departure, this chapter examines how the association between international criminal courts and progress has been subject to increasing contestation within international criminal scholarship and what such contestation may signify for the future orientation of the field.
The chapter concludes by advocating the adoption of a mindset that strives to temper enthusiasm for over-exuberant progress claims with a critical inquisitiveness for the darker sides of the interventions of international criminal courts, all the while maintaining a willingness to be inspired and imagine what can be created in the face of such critiques.
Now, almost two decades into the twenty-first century, the correspondence between criminal prosecution and human rights has become so entrenched that to be anti-criminal prosecution is increasingly viewed as anti-human rights.
It is this turn towards an anti-impunity norm that forms the focus of a stimulating new collection co-edited by Karen Engle, Zinaida Miller and D.M. Davis: Anti-Impunity and the Human Rights Agenda. Arriving at a time when the international criminal justice project is increasingly under scrutiny and a surge in divisive and isolationist populism has put many in the human rights community on the defensive, this collection offers a timely problematization of the anti-impunity agenda that has come to dominate human rights thinking over the past two decades.
international law is understood, contested, critiqued, and practised
around the world. This course invites participants to engage with
international law from a range of observational viewpoints by
introducing different theories (e.g., Third World Approaches to
International Law, queer, and Marxist), frames (e.g., counter-
narratives, counterfactuals, and cognitive biases), and everyday
dimensions of international law(yers) (e.g., objects, portraits, and
backstage practices). Relying on case studies from a diversity of
fields of international law (e.g., international criminal law,
international humanitarian law, law on the use of force, international
economic law, international environmental law, international
migration law, transitional justice, international human rights law, and
digital technology and international law), the course seeks to engage
participants in a process of reflexivity, with the hope of generating
greater (self-)awareness and critical (self-)reflection on the
importance of thinking about how and from where we think when
engaging with questions of international law.