Journal of International Criminal Justice - recent issues

Editorial

Zappala, S. — 2009-04-16

Violence and Massacres -- Towards a Criminal Law of Inhumanity?

Delmas-Marty, M. — 2009-04-16

The law's responses to massacres seem to vacillate between two models: (i) the model of the ‘criminal law of the enemy’ inspired by the national criminal law and rendered topical again by the attacks of September 11; (ii) the model of the ‘criminal law of inhumanity’ symbolized by the paradigm of crimes against humanity. The latter model is better suited to take account of the qualitative dimension of massacres, i.e. the fact that they, besides being mass offences (quantitative criterion), also offend against humanity. To establish a ‘criminal law of inhumanity’ as a model with a universal, or universalizable, dimension, three conditions are necessary, which concern (i) the definition of the crimes, (ii) the assignment of responsibility and (iii) the nature of the punishment. As for the definition of the crime, one could implicitly deduce from the list of acts constituting crimes against humanity (Article 7 of the International Criminal Court Statute) that humanity so protected has two inseparable components: the individuality of each human being, not reducible to membership in a group, and the equal membership of each in the human community as a whole. With regard to the second condition, it is not sufficient to hold responsible the de jure or de facto leaders; intermediaries and perpetrators, at all levels of hierarchy, must also be held accountable. As for the third condition, it is not sufficient to content oneself with the watchword of the fight against impunity without bringing up the nature and functions of the punishment; hence the necessity not only to rethink the role ‘criminal’ law can play in a policy of punishment, but also to focus on prevention, reparation and reconciliation. Finally, the author suggests that the proposed model of a ‘criminal law of inhumanity’ must be built through the interplay between municipal law and international law. On the one hand, the wealth of national legal systems — also with regard to penalties and responsibility — should be better integrated into international criminal justice; on the other, national criminal systems should be better adapted to conditions of international law, through the introduction into domestic law of the definitions of the crimes and also the rules for assigning criminal responsibility.

Finding the Best Epistemic Fit for International Criminal Tribunals: Beyond the Adversarial-Inquisitorial Dichotomy

Jackson, J. — 2009-04-16

This article considers how well evidentiary processes within the international criminal tribunals match up to the challenge to provide fair and reliable verdicts. Rather than using the adversarial–inquisitorial dichotomy as the basis for exploring this question, the article takes as its reference point the well recognized norms of equality of arms and the right to adversarial procedure. It is argued that although the tribunals have met the minimum standards of fairness required by these norms, the combination of adversarial party presentation and free admission of evidence, within an evidentiary context in which it is difficult for the defence to make their own inquiries, has restricted defence access to information and its ability to challenge evidence. The article goes on to argue that some of these shortcomings have been addressed within the International Criminal Court by the establishment of a Pre-Trial Chamber but that the Chamber needs to be developed further to promote a truly participative approach to fact-finding between the parties.

Foreword

Zappala, S. — 2009-04-16

Following Historical Precedent: An Argument for the Continued Use of Military Professionals as Triers of Fact in Some Humanitarian Law Tribunals

Meyer, R. V. — 2009-04-16

The military commissions at Guantánamo Bay have properly been the subject of much legal scrutiny and criticism. Their use of military officers as triers of fact, however, merits further consideration. Salim Hamdan may have benefited from having military officers decide his case. His panel was composed of highly educated military professionals who have dedicated their lives in service of the law. Despite their enmity towards the accused, these officers were actually in a better position to be sympathetic and understanding to the Hamdan defence than a civilian jury. The unique aspects of military service and combat experience will also make them excellent partners with professional jurists in future humanitarian law tribunals.

The Hamdan Case and the Application of a Municipal Offence: The Common Law Origins of 'Murder in Violation of the Law of War'

Dehn, J. C. — 2009-04-16

This article examines the legal origins of ‘murder in violation of the law of war’, an offence defined in the US Military Commissions Act (MCA) and resorted to in the case against Salim Ahmed Hamdan. Hamdan was acquitted of conspiring to commit this offence based in part on a questionable legal instruction. The acquittal may have been proper under a correct view of the law. Nevertheless, the specific context in which this offence was alleged, combined with the judge's instruction, highlights key aspects of the US approach to the prosecution of unprivileged fighters for a ‘law of war violation’. This approach, which is substantially represented by the US Supreme Court's judgment in ex parte Quirin, has been criticized by International Humanitarian Law (IHL) scholars as an erroneous view of customary IHL. However, close analysis of the legal and historical context in which this approach developed reveals that ‘murder in violation of the law of war’ is a municipal US offence that represents an English common law implementation of the law of nations. This article explains why reading this offence to incorporate IHL war crimes, as Hamdan's judge did, is inappropriate in the context of the MCA and Hamdan's case. It then demonstrates that the authorities relied upon by the Quirin Court, the Lieber Code and a treatise by authoritative US military law commentator, William Winthrop, understood punishment for law of war violations to be permitted by the law of nations but imposed under municipal law. Thus, ‘murder in violation of the law of war’ is properly viewed as a municipal, common law offence punishing unprivileged fighters. In future studies the author will address the appropriateness of prescribing and enforcing this municipal offence in extraterritorial armed conflict.

International Criminal Tribunals and the Media

Simons, M. — 2009-04-16

The media are widely different in outlook and level of interest when the subject is international criminal justice. Newspapers and television stations have widely divergent needs. Similarly, there are marked discrepancies between media in countries directly affected by the atrocities that are probed during international trials, and media elsewhere. In reporting war crimes trials for public opinion at large (in this case in the United States and in Europe), one must take into account the difficulty of capturing the interest of readers. The crimes in Bosnia or in Rwanda were in the headlines more than a decade ago. Today attention has moved to other countries. Ideally, the trials should be presented through captivating narratives, but the complexity and length of criminal proceedings often make this difficult. Although the arrests of senior officials get much attention, interest in the legal aspects of their case wanes quickly. Moreover, the impression that international criminal justice is selective, and seems to wield double standards as to which cases are prosecuted, and which are not, continues to produce scepticism.

The Impact of the ICTY Trials on Public Opinion in the Former Yugoslavia

Klarin, M. — 2009-04-16

If the impact of the ICTY in the countries of the former Yugoslavia were to be measured exclusively by the poor public perception of the Tribunal that prevails, perhaps the best course of action would be to shut its doors without waiting for the end of its mandate. The author tries, however, to show the more complex and multifaceted nature of the perception of the Tribunal at different levels, in the different countries of the former Yugoslavia, as well as at different moments in time. His conclusion is that the ICTY should have done more to improve its image in the region, thereby making it more difficult for the local elites to distort and manipulate its message.

Discussion

2009-04-16

Foreword

Cassese, A. — 2009-04-16

Lemkin on Genocide of Nations

Serbyn, R. — 2009-04-16

Modes of Participation in Crimes Against Humanity: The Hechingen and Haigerloch Case

2009-04-16

Whose 'Conduct Unbecoming'?: The Shooting of a Handcuffed, Blindfolded Palestinian Demonstrator

Ben-Naftali, O., Zamir, N. — 2009-04-16

The article focuses on the decision of the Israeli Military Advocate General (MAG) to charge an officer who ordered the shooting of a handcuffed, blindfolded Palestinian demonstrator, and the soldier who executed the order, for ‘conduct unbecoming’. It advances the following propositions: (i) from the perspective of the applicable international law, the facts of the case qualify the shooting as a war crime; (ii) said decision of the Israeli MAG is indicative of a policy of tolerance towards violence against non-violent civilian protest against the construction of the Separation Wall; (iii) the implication of such policy is twofold: first, it might transform ‘conduct unbecoming’ — which as a matter of law is a war crime — into a crime against humanity; second, it may well be construed as an invitation to the international community to intervene through the exercise of universal jurisdiction.

The Court-martial of Corporal Payne and Others and the Future Landscape of International Criminal Justice

Rasiah, N. — 2009-04-16

The court-martial of Corporal Payne and others involved the first charges brought under the International Criminal Court (ICC) Act in the United Kingdom, and led to the first British soldier ever to be convicted for a war crime under international law. But the significance of the case extends far beyond its national implications; it represents an important illustration of the national-level accountability heralded by the ICC regime. This article critically examines the court-martial of Corporal Payne and others, and uses this analysis as the basis of a broader exploration of the contrast between domestic courts-martial and international courts as fora for trying international crimes. The final part of the article explores the potential significance of that dichotomy for the future landscape of international criminal justice.

Corporate Liability for International Crimes under Canada's Crimes Against Humanity and War Crimes Act

Wanless, W. C. — 2009-04-16

Given that the Rome Statute does not provide jurisdiction to try corporations for breaches of international criminal law, it has been suggested that national jurisdictions might be used to fill this impunity gap. The author presents several arguments. First, the international criminal law system, including the Rome Statute — and particularly the principles of universal jurisdiction and complementarity — provides the theoretical grounding for states to assert jurisdiction over international crimes wider than the International Criminal Court (ICC). Second, Canada, owing to interactions between its domestic legislation implementing the ICC Statute and existing national criminal law, is now able to prosecute corporations for breaches of international criminal law. Finally, this increased jurisdiction of Canadian courts is consistent with the current status of corporations under international criminal law. What is really interesting about Canada's approach, however, is not so much that it has created a new legal principle, but rather that it is one of the first countries to establish jurisdiction over international crimes committed by corporate entities which were previously committed with impunity.

By stating that I could not guarantee that the army is not using forced labour, I certainly imply that they might, (and they might) but I am saying that we do not have to monitor the army's behaviour: we have our responsibilities; they have their responsibilities; and we refuse to be pushed in to assuming more than what we can really guarantee. About forced labour used by troops assigned to provide security on our pipeline project, let us admit between Unocal and Total that we might be in a grey zone.¹

JICJ-Giorgio La Pira Prize Announcement

2009-04-16

Antonio Cassese Prize for International Criminal Law Studies Announcement

2009-04-16

Antonio Cassese Prize for International Criminal Law Studies Regulations

2009-04-16

Editorial

2009-02-02

The Prosecutor's Strategy in Seeking the Arrest of Sudanese President Al Bashir on Charges of Genocide

Cayley, A. T. — 2009-02-02

The Prosecutor's application for the issuance of an arrest warrant against President Al Bashir contains three charges of genocide, five charges of crimes against humanity and two charges of war crimes allegedly committed against the Fur, Masalit and Zaghawa peoples since March 2003. The author discusses the appropriateness of the legal characterization of crimes in Darfur as ‘genocide’.

The Request for an Arrest Warrant in Al Bashir: Idealistic Posturing or Calculated Plan?

Gosnell, C. — 2009-02-02

The decision to seek President Al Bashir's arrest, assuming that the evidence substantiates the request, can be viewed as part of a longer term pragmatic strategy. By going public, rather than obtaining a sealed warrant, the ICC Prosecutor ensured that Al Bashir would only be surrendered on a voluntary basis. The arrest warrant can be soft-pedaled or used as a bargaining chip by political actors until such time as the moment is propitious for his surrender. The author argues that, in the meantime, the Prosecutor should immediately seek as many sealed arrest warrants as possible of lower level perpetrators, with the aim of bringing one or more of them into custody and starting judicial proceedings related to crimes in Darfur as soon as possible. Public judicial proceedings are essential to enhancing the credibility of the ICC in general, and the charges against Al Bashir in particular.

On the Application of a Theory of Indirect Perpetration in Al Bashir: German Doctrine at The Hague?

Jessberger, F., Geneuss, J. — 2009-02-02

In his application for the issuance of an arrest warrant against the President of Sudan, Omar Hassan Ahmad Al Bashir, the Prosecutor of the International Criminal Court argued that Al Bashir did not physically or directly carry out genocide, crimes against humanity and war crimes but committed these crimes through members of the state apparatus, the army and the militia. It is the first time that a prosecutor before an international tribunal exclusively bases the charges on the concept of perpetration-by-means. This comment discusses the Prosecutor's application, explores the appearance of the theory of indirect perpetration in international law, and tracks down the roots of the theory of perpetration-by-means of a hierarchical organization in German criminal law. The authors find that charging Al Bashir as an indirect perpetrator appears to be an appropriate description of his involvement in the alleged crimes indeed, given the explicit inclusion of perpetration-by-means in Article 25(3)(a) ICC Statute and the interpretation of Article 25(3) by the Pre-Trial Chamber in Lubanga as well as, most recently, in Katanga and Chui. They further submit that the concept of indirect perpetration could possibly become a key mode of liability in international criminal law.

Obtaining Cooperation from Sudan -- Where is the Law?

Sluiter, G. — 2009-02-02

While much indignation has been expressed in respect of Sudan's almost total lack of cooperation with the International Criminal Court (ICC) in the Darfur prosecution, a legal analysis has yet to be conducted. It is submitted that both the procedural and substantive aspects of the cooperation law pertaining to Sudan are problematic. The ICC Prosecutor has waited too long with the application for a judicial finding of non-compliance and has thereby unnecessarily jeopardized the enforcement process. Regarding the substantive cooperation law, to date, neither the Prosecutor nor any other ICC organ has shed light on three vital issues for the determination that Sudan has violated its cooperation duties. First, what is the applicable cooperation law? Second, does Security Council Resolution 1593 (2005) amount to an unacceptable discriminatory investigation and prosecution, invalidating the referral? Third, if one applies the ICC Statute to Sudan, how effective is this instrument in relation to an uncooperative state non-party?

The Proceedings against President Al Bashir and the Prospects of their Suspension under Article 16 ICC Statute

Ciampi, A. — 2009-02-02

The announcement by the Prosecutor of his submission to the Judges of the International Criminal Court (ICC) of an application for the issuance of a warrant of arrest against the President of Sudan, Omar Hassan Ahmad Al Bashir, for genocide, crimes against humanity and war crimes, has triggered diverse reactions from states, international organizations and other international actors. The article discusses the possibility of a request by the United Nations (UN) Security Council that the prosecution against Al Bashir be deferred, in the light of the background, timing and context of the Prosecutor's application.

Extending International Criminal Law beyond the Individual to Corporations and Armed Opposition Groups

Clapham, A. — 2009-02-02

This article argues that corporations and armed opposition groups have obligations under international law. It is suggested that the scope of the obligations turns on the capacity of the entities in question. While there may be no international court to hear complaints against such entities, understanding their legal obligations under international law is important in situations where national courts have jurisdiction over violations of international law committed by non-state actors. Furthermore, it is vital to realizing the potential of claims of corporate complicity in international crimes and the impact such claims may have in the field of ethical investment.

Societas delinquere non potest ?: A German Perspective

Weigend, T. — 2009-02-02

The concept of corporate criminal responsibility has long been accepted in common law jurisdictions and has more recently spread to several other national criminal law systems. Germany is one of a few hold-outs limiting criminal responsibility to natural persons, although financial sanctions can be imposed on a corporation when one of its officers has acted criminally on behalf of the corporation. Corporate criminal responsibility can be based on transferring the corporate officer's responsibility to the corporation, or alternatively, on finding fault with the legal person's internal organization. Neither approach is completely convincing in theoretical terms. More importantly, introducing full corporate criminal responsibility requires a re-definition of what constitutes a criminal act as well as the concept of criminal culpability. The author cautions against taking this step too quickly because it might well change the specific nature of criminal law.

Discussion

2009-02-02

Can Rwandan President Kagame be held Responsible at the ICTR for the Killing of President Habyarimana?

Robinson, P., Ghahraman, G. — 2009-02-02

In 2006, a French investigating judge suggested that Rwandan President Paul Kagame be prosecuted at the International Criminal Tribunal for Rwanda (ICTR) for the 1994 shooting down of the plane of President Juvenal Habyarimana which triggered that country's genocide. This article examines the evidence against President Kagame and the myriad of legal issues involved. Those issues include the applicability of the personal, temporal, and subject matter jurisdiction of the ICTR, the status of President Habyarimana as a combatant and principles of perfidy and proportionality. The authors conclude that while the shooting down of the plane may have been a war crime, the law on the matter is sufficiently unclear and therefore a prosecution of President Kagame would not be prudent.

French Justice's Endeavours to Substitute for the ICTR

Thalmann, V. — 2009-02-02

In 2006, a French investigating judge issued international arrest warrants against nine Rwandan officials closely allied to current Rwandan President Kagame. They are accused of premeditated murder and terrorism, for having planned and ordered the April 1994 attack on the airplane in which former Rwandan President Habyarimana and others were killed. This article discusses the legal qualification of the offences charged in Judge Bruguière's order and the likely consequences of this French judicial action from the point of view of French criminal procedure. It also analyses why French national justice intervened and whether the ICTR would have jurisdiction over the nine suspects if the case were to be brought before it. It concludes that although it appears that the ICTR is unlikely to try the persons allegedly responsible for the 1994 attack, the recent arrest by German authorities of one of the nine suspects targeted in Judge Bruguière's order is likely to shed some light on the origins of this attack.

The Spanish Indictment of High-ranking Rwandan Officials

Commentator — 2009-02-02

On 6 February 2008, the Spanish Investigative Judge Andreu Merelles issued an indictment charging 40 current or former high-ranking Rwandan military officials with serious crimes including genocide, crimes against humanity, war crimes and terrorism, perpetrated over a period of 12 years, from 1990 to 2002, against the civilian population, and primarily against members of the Hutu ethnic group. While the investigations were initially based on complaints from families of nine Spaniards who were killed, harmed or disappeared during the period at issue, the indictment was subsequently expanded to include crimes committed against Rwandan and Congolese victims, based on the universal jurisdiction doctrine. The indictment rules out the prosecution of Paul Kagame, arguing that he may not be prosecuted as long as he holds the position of President of Rwanda.

Forced Marriage as a Crime against Humanity: Problems of Definition and Prosecution

Jain, N. — 2009-02-02

Forced marriages are a pervasive feature of armed conflicts around the world, such as in Sierra Leone, Cambodia, Rwanda and Uganda. Despite forced marriage having been charged and recently affirmed as an international crime before the Special Court for Sierra Leone (SCSL), courts and commentators have paid little attention to examining its viability as a distinct category of crime in international law. This article analyses the SCSL's characterization of forced marriage as conduct subsumed within the category of other inhumane acts. It isolates the constituent elements of the crime of forced marriage through comparative case studies of Sierra Leone and Cambodia under the Khmer Rouge. The author addresses the issue of whether forced marriage can be distinguished from arranged marriages on the one hand, and sexual slavery on the other, to justify its prosecution as an ‘other inhumane act’ as part of crimes against humanity.

Advancing International Criminal Law: The Special Court for Sierra Leone Recognizes Forced Marriage as a 'New' Crime against Humanity

Frulli, M. — 2009-02-02

The Appeals Chamber of the Special Court for Sierra Leone (SCSL) in Brima, Kamara and Kanu recognized that forced marriages may amount to crimes against humanity, falling under the sub-heading of ‘other inhumane acts’. This decision is to be welcomed because the practice of forced marriage is not adequately described by existing categories of sexual crimes. As forced conjugality results in particular psychological and moral suffering for the victims, it is argued that this heinous practice may be more appropriately pursued as a separate crime, under a definition that describes the entirety and complexity of the criminal conduct. The SCSL decision may also be important for its impact on the activities of the International Criminal Court (ICC). The widespread practice of forced marriage presently features in all the situations being investigated by the ICC and the inclusion in the ICC Statute of the offence of forced marriage as a separate crime against humanity could be discussed during the Review Conference in 2009.

The European Court of Human Rights' Incidental Application of International Criminal Law and Humanitarian Law: A Critical Discussion of Kononov v. Latvia

Pinzauti, G. — 2009-02-02

The European Court of Human Rights has the inherent jurisdiction to incidentally apply provisions pertaining to the domestic systems of the contracting states or belonging to other branches of international law (such as international criminal law and humanitarian law) whenever the Convention contains a renvoi to such bodies of law. Practice shows that the Court does apply these ‘external’ provisions, though not always accurately. For instance in the Kononov case, due to a misapprehension of the rules of humanitarian law on civilian immunity (and, as a consequence, of the secondary rules of international criminal law), the Court wrongly held that the respondent state breached Article 7 of the Convention in convicting the applicant of war crimes. As the Court declared itself competent to apply municipal law on the strength of the renvoi enshrined in the relevant provisions of the Convention, this article argues it should also have applied humanitarian law incidentally when dealing with human rights violations committed in time of armed conflict.

Using International Law to By-pass Domestic Legal Hurdles: On the Applicability of the Statute of Limitations in the Menendez et al. Case

ChavezTafur, G. — 2009-02-02

Thirty-one years after committing their crimes, General Menéndez and seven other represores were sentenced by an Argentinean Federal Tribunal to prison terms ranging from 18 years to life in prison for the kidnapping, torture and murder of four members of a political opposition group. The crimes were committed as part of a widespread and systematic attack against those opposed to the military regime that ruled Argentina from 1976 to 1983. According to national legislation, however, they should have been shielded from prosecution by the statute of limitations found in Article 62 of the Penal Code. To circumvent this procedural hurdle in domestic law, the Tribunal relied upon international criminal law, describing the offences as crimes against humanity, maintaining that the statute of limitations did not apply to such crimes, and then proceeded to sentence the accused exclusively for domestic crimes. After a concise summary of the facts of the case, the following paper shall, first, review the use of international law by the Tribunal, pointing out certain inaccuracies in the application of international criminal law notions to handle domestic offences. This will be followed by a comment on the Tribunal's arguments regarding the non-applicability of the statute of limitations, in particular concerning its approach to jus cogens norms. Finally, this article presents the Tribunal's use of domestic law to reach its verdict, and questions whether using international law as a tool to by-pass domestic procedural hurdles could ultimately hinder the international struggle to end impunity.

The Italian Court of Cassation Misapprehends the Notion of War Crimes: The Lozano Case

Cassese, A. — 2009-02-02

In July 2008, the Italian Court of Cassation held that Italian courts lacked jurisdiction over the 2005 killing in Baghdad by a US serviceman of an Italian intelligence officer in civilian clothes and the wounding of another officer and a reporter. The Court asserted that the action was accomplished by the serviceman while fulfilling his official duties, and that he therefore enjoyed functional immunity from foreign courts. According to the Court, this immunity was not removed by the fact that the killing allegedly amounted to a war crime. The Court took the view that war crimes are ‘grave breaches’ of international humanitarian law, and must be large-scale, odious and inhuman, as well as intentional acts, whereas the killing at issue was not. The author argues that the Court premised its reasoning on a clearly erroneous definition of war crimes.

Current Developments at the Ad Hoc International Criminal Tribunals

Gustafson, K., Janisiewicz, N. — 2009-02-02

Editorial

2008-11-11

Karadzic on Trial: Two Procedural Problems

Sluiter, G. — 2008-11-11

With Radovan Karadzic on trial in The Hague, the International Criminal Tribunal for the former Yugoslavia (ICTY) is offered another opportunity to demonstrate it is capable of delivering expeditious and fair justice in high profile and highly complex cases. It is submitted here that the ICTY can only achieve this objective if it succeeds in satisfactorily dealing with two procedural problems. First, the ICTY has tremendous difficulty in finding appropriate response to accused conducting their own defence. Second, the question arises of how to ensure protection of the right of the accused to be presumed innocent and to be tried by an impartial tribunal, in light of the ICTY's legacy over the years, dealing with many of the crimes set out in the Karadzic indictment. This contribution argues that a solution is still far away for the first procedural problem and as regards the second, the ICTY has made an unfortunate start.

Permissible Perfidy?: Analysing the Colombian Hostage Rescue, the Capture of Rebel Leaders and the World's Reaction

Dehn, J. C. — 2008-11-11

On 2 July 2008, Colombian forces disguised as an international humanitarian mission rescued 15 hostages from the Fuerzas Armadas Revolucionarias de Colombia guerilla group, its opponent in a decades-long conflict. Those forces also captured two guerrillas, including the commander who had been responsible for the hostages. The world's reaction, including those of humanitarian and human rights organizations, was universally positive in spite of reports that Colombian commandos and intelligence agents posed as aid workers and journalists — non-combatants protected by international humanitarian law (IHL) — in effecting the rescue and capture. Criticism of the operation later arose only when it was discovered that at least one of the Colombian soldiers participating in the operation wore the emblem of the International Committee of the Red Cross. Even that criticism focused solely on the misuse of the emblem, not the feigning of non-combatant status resulting in capture. The author examines the rescue operation to determine whether and how it might have violated IHL prohibitions regarding perfidious capture, recently asserted to apply in both international and non-international armed conflict. He reviews the perfidy prohibition, its scope and applicability, and possible interpretations that might explain the world's uncritical reaction to the operation. He also examines doctrines that might preclude or negate potential criminal responsibility for individual participants or decision-makers, as well as those that might apply at a collective level. The author argues that the lack of the clear applicability of any doctrine precluding criminal responsibility for this supposed violation of IHL might confirm either that perfidious capture is permissible in non-international armed conflict or that it is a non-criminal and inconsequential violation of IHL. Alternatively, he suggests that uncritical acceptance of this operation might reveal that the applicable law no longer reflects our intuitive notions of justice.

Completion or Continuation Strategy?: Appraising Problems and Possible Developments in Building the Legacy of the ICTY

Pocar, F. — 2008-11-11

Since 2000, the International Criminal Tribunal for the former Yugoslavia (ICTY) has been devising a ‘Completion Strategy’, commonly understood as a plan to wind down its trial and appellate activities. Crucial to this comprehensive plan is, however, that the winding down of the Tribunal's activities should be accomplished while simultaneously upholding the international rule of law, preventing impunity and widely sharing the Tribunal's institutional knowledge and jurisprudence. The author, President of the ICTY, explains that the Tribunal, from its inception, was established to exercise primacy only for a short period and because of the inability of local judiciaries to deliver justice or ensure a future of peace to the region. In view of the principle of complementarity, which fully applies to the ICTY, the Tribunal is therefore transferring cases and investigative material to local institutions. Moreover, the Tribunal has amended its Rules of Procedure and Evidence to allow direct petition by local actors to modify protective measures and thereby receive confidential material from the Tribunal's archives. Through these and other measures, the ICTY has adopted a strategy of ‘continued legacy building’ in the region of the former Yugoslavia that will faciliate the growth of local institutional capacity to handle the numerous cases that remain to be prosecuted and tried effectively. Thus, in its essence, the ‘Completion Strategy’ is an unprecedented attempt to contribute to the development of the rule of law, both in the region of the former Yugoslavia and beyond.

The ICTR's Completion Strategy -- Challenges and Possible Solutions

Mose, E. — 2008-11-11

In conformity with previous projections, the ICTR will have completed cases of almost 70 accused in leadership positions by the end of 2008. Judgment writing in some trials will spill over into 2009. The remaining challenges are to complete on-going trials, commence the last cases, and arrest indictees at large. The recent arrest of three indictees means that their trials can only be completed in 2009. The Security Council has therefore extended the mandate of Trial Chamber judges from 2008 to 2009. The time needed to complete all work depends on whether some cases will be transferred to Rwanda and whether other indictees at large will be arrested. In parallel with the downsizing of the ICTR it is important to maintain some degree of continuity and ensure residual functions in the future.

Discussion

2008-11-11

Achievements and Problems of the International Criminal Court: A View From Within

Blattmann, R., Bowman, K. — 2008-11-11

In order to analyse both the achievements and the challenges faced by the International Criminal Court (ICC) it is important to recall the sui generis character of the Rome Statute, and to situate the Court within the institutional framework of both past and present international justice mechanisms. Among the many achievements of the Court to date are the ones that have come from the office of the Registry. These include the unique mechanisms for providing support to victims and witnesses, the establishment of vital Court infrastructure in situation countries and the growing outreach programme. The judiciary has also had many marked successes in dealing with the situations in the Democratic Republic of Congo, Uganda, Darfur and the Central African Republic. Despite these positive developments, the Court nevertheless faces a number of significant challenges. These include the issue of state cooperation with the Court and security and safety issues faced by investigators. The expediency of proceedings is also a matter of concern where interlocutory appeals and the participation of victims threaten the right of the accused to be tried without undue delay. From the perspective of a current member of the ICC judiciary, these challenges are surmountable if efforts to improve the functioning of the Court are sustained to ensure the continued success of the ICC in the future.

Prosecutorial Discretion v. Judicial Activism at the International Criminal Court

Schabas, W. A. — 2008-11-11

The Prosecutor of the International Criminal Court has exercised broad prosecutorial discretion in the selection of situations and cases to be heard by the Court. It is difficult to explain the exercise of this discretion by reference to the criteria purportedly used by the Prosecutor of ‘gravity’ and ‘interests of justice’ under Articles 17 and 53 of the ICC Statute, respectively. Unlike the ad hoc international criminal tribunals, it appears more the norm that the Prosecutor of the International Criminal Court acts in accordance with the wishes of the State parties, and with respect to the availability of an individual to be prosecuted. For its part, the Court has encountered difficulties in reviewing the Prosecutor's exercise of discretion as it has been unable to effectively access the criteria of ‘gravity’ and ‘interests of justice’. In relation to the charges faced by an accused, the Court has been more active, and has even been willing to add the criterion of ‘inactive’ to Article 17 ICC Statute. The Court's impatience with the slow pace of prosecutions in Darfur has created tension with the Prosecutor.

Discussion

2008-11-11

Stretching the Boundaries of Commission Liability: The ICTR Appeal Judgment in Seromba

Zorzi Giustiniani, F. — 2008-11-11

In March 2008, the International Criminal Tribunal for Rwanda (ICTR) Appeals Chamber advocated in Seromba the general applicability of an approach, already propounded in previous judgments, which considerably broadens the notion of commission. It held that ‘committing’ is not limited to physical perpetration, thus implying that customary international law recognizes other forms of commission liability, which are distinct from joint criminal enterprise. As a result, the Appeals Chamber reversed the Trial Chamber's decision and held that Father Athanase Seromba's role in the massacre of April 1994 in the Nyange parish was not that of an aider and abetter, but rather of a principal perpetrator. While clearly motivated by the intent to impose an exemplary sentence on Seromba, the Appeals Chamber's reasoning lends itself to a number of objections.

The ICC's Possible Deferral of the LRA Case to Uganda

Apuuli, K. P. — 2008-11-11

The signing of the Final Peace Agreement (FPA) between the leaders of the Lords’ Resistance Army (LRA) and the government of Uganda (GoU) has been delayed, partly because the LRA leader Joseph Kony wants assurances concerning the (non)execution of the International Criminal Court (ICC) arrest warrants against him and other LRA senior officials. The GoU has assured him that once he signs the agreement, it will ask the ICC to defer the LRA case to the jurisdiction of Ugandan authorities. This note addresses the prospect of the ICC deferring the prosecution of the LRA leaders to Uganda and the measures that Uganda should undertake to make it possible.

M. Cherif Bassiouni, The Legislative History of the International Criminal Court

Gaynor, F., Morris, L. K. — 2008-11-11

Cyril Laucci (ed.), The Annotated Digest of the International Criminal Court. Volume I: 2004-2006

Van den hole, L. — 2008-11-11

Michael Bohlander, Roman Boed and Richard J. Wilson, Defense in International Criminal Proceedings: Cases, Materials and Commentary

Saini, J. — 2008-11-11

Ruth Wedgwood, 'The Present State of Research Carried Out by the English-speaking Section of the Centre for Study and Research', in The Hague Academy of International Law, Centre for Studies and Research in International Law and International Relations, 2002: International Criminal Justice

Yarwood, L. — 2008-11-11

Council of Europe, Guantanamo: violation of human rights and international law?

McBride, J. — 2008-11-11

Ruth Kok, Statutory Limitations in International Criminal Law

Sayapin, S. — 2008-11-11

Faustin Z. Ntoubandi, Amnesty for Crimes against Humanity under International Law

Guilfoyle, D. — 2008-11-11