Journal of International Criminal Justice - Advance Access

National Legislation for Prosecution of International Crimes in Kenya

Okuta, A. — Fri, 20 Nov 2009 05:05:54 PST

The rapid development of international criminal law and the demand to put an end to the culture of impunity has led to an increase in the prosecution of international crimes. In recent times, while prosecutions have often been carried out by ad hoc tribunals, special courts and the International Criminal Court, some countries have carried out prosecutions through their national courts. In the latter case, the successful prosecution of international crimes will depend on the country's legal framework and judicial capacity to handle such prosecutions. Kenya is a country that is currently grappling with accusations of international crimes, following the alleged offences committed during the violence that followed the 2007 election. This article discusses the Kenyan criminal justice system against the background of implementation of international criminal law in domestic courts, and assesses Kenya's ability to deal with these allegations.

Fostering a Better Understanding of Universal Jurisdiction: A Comment on the AU-EU Expert Report on the Principle of Universal Jurisdiction

Geneuss, J. — Thu, 29 Oct 2009 02:51:18 PDT

The recent issuance of arrest warrants by European judges against African officials on the basis of universal jurisdiction has led to diplomatic tensions between African and European states. For this reason, at the 11th AU–EU Ministerial Troika Meeting the Ministers agreed to set up a technical ad hoc expert group to provide a description of the legal notion of the principle of universal jurisdiction and to outline its respective understandings on the African and the European side. On 16 April 2009, the final AU–EU Expert Report on the Principle of Universal Jurisdiction was issued. This comment examines the concerns expressed and the legal arguments and recommendations made in the Report. The author describes where those arguments may be located within the complex concept of universal jurisdiction under international law, stressing the distinction between universal jurisdiction to prescribe and universal jurisdiction to adjudicate. According to the Report, both customary and conventional international law allow for universal jurisdiction. The exercise of universal jurisdiction is, moreover, restricted neither by a requirement that the suspect be present on the territory of the prosecuting state, nor by considerations of subsidiarity. However, the vagueness of international law relative to the legal parameters of universal jurisdiction as well as its difficult relationship with long-established ‘ordinary’ national procedural regimes may provoke criticism.

Conflicting International Obligations and the Risk of Torture and Unfair Trial: Critical Comments on R (Al-Saadoon and Mufdhi) v. Secretary of State for Defence and Al-Saadoon and Mufdhi v. United Kingdom

Bhuta, N. C. — Thu, 29 Oct 2009 02:51:18 PDT

This article reviews the decisions of UK courts in a case concerning two Iraqi detainees in British military custody who sought to restrain their transfer to Iraqi custody. The detainees claimed that the transfer would violate certain obligations owed to them by the UK under the European Convention on Human Rights (ECHR), including the prohibition on torture and the right to a fair trial. The article argues that the case presented novel and complex legal questions for resolution, including whether there was a conflict between the UK's obligations under the ECHR and its obligation to respect Iraqi sovereign jurisdiction over its own nationals on its own territory. It is concluded that important elements of the UK courts’ reasoning were less than satisfactory.

Procedural Tools for Ensuring Cooperation of States with the Special Tribunal for Lebanon

Korecki, L. — Thu, 29 Oct 2009 02:51:17 PDT

The Security Council endowed the Special Tribunal for Lebanon (‘STL’) with the ability to request assistance from all states. At the same time, however, it did not institute a corresponding universal duty to comply with such requests. Without having much room to force states to cooperate, the drafters of the STL Rules of Procedure and Evidence sought to introduce mechanisms that encouraged states to do so. This is why the STL Rules give unprecedented confidentiality guarantees to information providers. Although the combined construction of ‘counterbalancing measures’ and the introduction of a ‘Special Counsel’ can be seen as an important novum in the practice of international tribunals, the lack of meaningful judicial control over its use leaves some room for concern.

The Special Tribunal for Lebanon Swiftly Adopts Its Rules of Procedure and Evidence

Gillett, M., Schuster, M. — Thu, 29 Oct 2009 02:51:17 PDT

The Judges of the Special Tribunal for Lebanon (STL) recently adopted the Rules of Procedure and Evidence to guide the work of the court in bringing to justice those responsible for the attack of 14 February 2005 that resulted in the death of then-Lebanese Prime Minister Rafiq Hariri (‘the Hariri Attack’) as well as related attacks. These provisions draw heavily on analogous instruments of the International Criminal Court and the International Criminal Tribunals for the former Yugoslavia and Rwanda. However, they also contain a number of innovations, including the enhanced role of the Pre-Trial Judge, the establishment of an independent and empowered Defence Office and the possibility of trials in absentia. The review carried out in this article is not a comprehensive analysis of every provision of the Rules of Procedure and Evidence. Instead, the purpose is to describe the key features of this instrument and, in doing so, to highlight points of interest, intersection and divergence in comparison with the analogous instruments of other International Criminal Tribunals. As such, the exegesis is intended to provide an overview of the procedural framework of the STL that will be of use to scholars and practitioners alike.

A New Model of International Criminal Procedure?: The Progress of the Duch Trial at the ECCC

Gibson, K., Rudy, D. — Tue, 27 Oct 2009 09:43:57 PDT

Much has been written about the trial procedure at the Extraordinary Chambers in the Courts of Cambodia (ECCC), particularly its civil law orientation and its novel aspects when compared to the relatively consistent procedural approach adopted by the ad hoc Tribunals and the Special Court for Sierra Leone. Several months into the first ECCC trial, many of the procedural innovations, which attracted the attention of commentators, are now being put into practice. Moreover, as the original end-date for the trial has come and gone, despite the numerous admissions of the accused, the Chamber has developed procedural restrictions in an attempt to speed up the trial proceedings. Although a definitive assessment of the ECCC's procedural approach will only become possible at the end of this first trial, a mid-term review is warranted. This is particularly so in light of the evolution of the role of civil parties in the proceedings, given that the participation of victims in international criminal proceedings remains in its early stages.

Rethinking the Powers of Truth Commissions in Light of the ICC Statute

Bisset, A. — Tue, 27 Oct 2009 09:43:56 PDT

The Rome Statute of the International Criminal Court (ICC) is silent on the issue of national truth commissions. How the ICC might treat these bodies and the information they may hold is uncertain. The overlapping nature of the investigations likely to be carried out by the ICC and future truth-seeking bodies may, however, give rise to areas of tension, particularly where truth commissions hold confidential or self-incriminating information. This article questions whether the traditional truth-seeking powers to grant confidentiality and compel the provision of self-incriminating statements are compatible with the prosecutorial framework of the ICC. It considers how such information is likely to be dealt with by the ICC and analyses whether effective truth seeking can be carried out in the absence of such powers.

On Stretching the Boundaries of Responsible Command

Bantekas, I. — Tue, 27 Oct 2009 09:43:54 PDT

Current Developments at the Ad Hoc International Criminal Tribunals

Margetts, K., Hayden, P. — Tue, 27 Oct 2009 09:43:53 PDT

The Internationalization of Domestic Jurisdictions by International Tribunals: The Special Tribunal for Lebanon Renders Its First Decisions

Mettraux, G. — Tue, 27 Oct 2009 09:43:52 PDT

After a few months of operation, the Special Tribunal for Lebanon has already rendered a number of important orders. They provide the outline of some of the new challenges, which the Court is set to confront, but also offer clear insight into the general legal philosophy that underpins this new institution.