Journal of International Criminal Justice - recent issues

Introduction

Ohlin, J. D., Fletcher, G. P. — 2008-05-15

Torture in the Jurisprudence of the Ad Hoc Tribunals: A Critical Assessment

Burchard, C. — 2008-05-15

Today's definition of torture is radically different from torture as understood in medieval times. The jurisprudence of the ad hoc tribunals has furthered our understanding of ‘modern torture’ as it confronts unique contemporary challenges: non-state and even private actors committing seemingly random acts of violence, often unconnected to their old venues: criminal proceedings, corporal punishment and forced confessions. In the first part the author systematizes the various elements of torture (from the actus reus, to the requisite mens rea, to cumulative convictions and sentencing) under international criminal law. In part two the author reviews two developments in the definition of torture. While the article's analysis supports the expansion of the list of prohibited purposes (because torture is a crime which grossly violates the autonomy of human beings), the author criticizes the deletion of the official sanction requirement, because in his view, international criminal justice deals not with torture as a discrete crime, but rather with torture as a war crime and crime against humanity.

When is the Involvement of State Officials a Requirement for the Crime of Torture?

Gaeta, P. — 2008-05-15

Torture is prohibited by a certain number of international instruments — a demonstration of the willingness of the international community to outlaw torture in all its manifestations. Yet this set of legal rules seems to have generated confusion as regards the definition of torture. One controversial aspect concerns the requirement that for torture proper to be committed, it must be carried out by state officials or with their involvement. The author argues that the notion of torture depends upon the particular context in which it is used. In the field of international criminal law, the notion of torture as a crime per se, i.e. as a crime which is punishable as such, even if perpetrated sporadically and regardless of whether it is perpetrated in time of peace or war, requires the involvement of a state official. This is so because it is necessary not to ‘trivialize’ the interference of the international community into the realm of criminal law by imposing the criminalization of every single instance of wicked conduct of an entirely private nature. By contrast, the requirement of state official is not needed anymore for torture as a war crime or a crime against humanity. In both cases the quid pluris that turns the infliction of severe pain and suffering into a crime of international concern is the contextual element, i.e. the particular context of violence surrounding the criminal act, coupled with the need to protect the mental and physical integrity of human beings when they are systematically disregarded by deviant behaviours, or when a situation of armed conflict put them at great risk. On the other hand, the notion of torture is wider in non-criminal law contexts. Under human rights treaties, a state can be held responsible for every single instance of torture, including pain and suffering inflicted by a private individual against another private individual under his custody. The reason is that under such treaties states are obliged not only not to violate themselves the protected rights, but also to act as their ultimate defenders when the full enjoyment of those rights is jeopardized by private individuals. The legal definition of torture is a sort of chameleon that — while always embracing the notion that the infliction of acute pain and suffering upon a person under the control of another is required — by necessity changes the colour of its skin as far as additional elements are concerned, depending on the context in which it is situated.

Implementing the UN Convention Definition of Torture in National Criminal Law (with Reference to the Special Case of Italy)

Marchesi, A. — 2008-05-15

The UN Committee against Torture considers the introduction of a distinct offence of torture in domestic law to be the most effective way of implementing Article 4 of the Convention against Torture. States parties which have introduced or are in the process of introducing a separately defined offence of torture have nonetheless frequently adopted definitions which are not entirely adequate in the light of the Convention. Problematic areas include ‘mental’ torture, torture for the purpose of discrimination, the role of state agents in the practice of torture and exceptions which are different from the ‘lawful sanctions’ exception provided for in the Convention itself. The case of Italy is a good illustration of the kind of obstacles which frequently arise when states are invited to introduce an ad hoc offence of torture. While maintaining that enacting a specific prohibition is not required by the Convention, the Italian Government has apparently accepted the idea that its introduction in Italian law would represent an improvement — without, in fact, doing much to achieve this result. As for the definitions of torture, the debate on the numerous bills providing for a specific offence of torture which have been tabled in the Italian Parliament during the last three parliamentary terms has focused on two main aspects. First, according to the majority of the members of Parliament (MP), in order to comply with the Constitutional principle of determinacy, the offence must be defined with reference to the conduct amounting to torture, i.e. to the type of act by which pain or suffering is inflicted on the victim. Some of the bills which define the act of torture do so in restrictive terms and are clearly not in conformity with Article 1 of the Convention. Second, opinions are divided with respect to the role of public officials (or other persons acting in an official capacity) in committing the crime of torture: while some MPs are in favour of introducing a reato proprio, i.e. a crime that only a public official can commit, others have proposed a common crime of torture. This, however, may be too similar to certain generic offences under Italian law that do not catch the essence of torture or insufficiently take into account its grave nature.

Just Short of Torture: Abusive Treatment and the Limits of International Criminal Justice

Roth, B. R. — 2008-05-15

Few juridical tasks are more distasteful than specifying the distinction between torture and ‘mere’ cruel, inhuman and degrading treatment. Although the distinction itself may seem morally obtuse, it is a line, not between prohibited and permissible conduct, but between categories of prohibited conduct that are subject to distinct implementation regimes. The Torture Convention combines a narrow exposure of individual state officials to prosecutions in foreign courts for the international crime of torture with a broad state responsibility for the decent treatment of all detainees under all circumstances. To ignore or blur the distinction would not necessarily strengthen real accountability; to the contrary, allowing extraterritorial prosecutions for acts short of the torture threshold would unduly jeopardize agents of politically unpopular governments, would furnish a tool for political actors bent on undermining peaceful and respectful international relations, and would, paradoxically, risk producing a perverse downward pressure on the standards for detainee treatment.

What is Really Wrong with Torture?

Harel, A., Sharon, A. — 2008-05-15

How can deontologists reconcile the stringency of the moral prohibition on torture with the recognition that it may sometimes be the only means to prevent catastrophe? This article proposes a conception of deontology that allows for the resolution of this dilemma. Casting deontology in terms of the distinction between categorical and conditional obligations, we articulate a theoretical distinction between principles and exceptions. Torture can never be permitted or authorized by a rule or principle. Whenever it is justifiably performed it is performed under urgent and exceptional circumstances. On this basis the practical necessity of torture may be acknowledged, while the categorical nature of the prohibition on torture is maintained. This explains how torture might be categorically prohibited by international law, yet at the same time be subject to a defence of necessity or duress under international criminal law.

May a State Torture Suspects to Save the Life of Innocents?

Ambos, K. — 2008-05-15

The old debate on the (Israeli) ticking bomb cases must be revisited in the light of the increasing threat by terrorist bombers and a recent German kidnapping case. Both cases may be combined as one ‘model case’ to test whether the claim of a truly absolute prohibition of torture can really stand in extreme situations where the use of torture may be the only means to obtain the necessary information to prevent great(er) harm for innocents. Even in these situations the absolute prohibition against torture must not be relaxed ex ante and in abstracto — given the unequivocal situation in international law and the negative policy implications a flexible approach would have. However, this does not necessarily entail the individual investigator's criminal responsibility ex post and in concreto given the conflicting duties — to respect the (terrorist) suspect's human dignity and at the same time (actively) protect potential victims of this suspect's action — he has to face. A just solution to this dilemma can only be found by distinguishing between, on the one hand, the state and the individual level, and on the other hand, between (non-) justification (wrongfulness) of the act of torture and excuse (personal blameworthiness) of the torturer. Thus, the investigator may be excused, but his conduct not justified, since this would convert the torture into something lawful or even socially acceptable and thus undermine the absoluteness of the conduct rule not to torture. This result is developed in the last part of this article taking into account the relevant provisions of the Israeli and German Penal Codes and the ICC Statute (Part 4). Before the Israeli and German cases can be compared (Part 1), some clarifications as to the status and rationale of the international prohibition of torture must be made (Part 2) and a ‘model case’, where preventive torture may be necessary should be considered (Part 3).

The Bounds of Necessity

Ohlin, J. D. — 2008-05-15

The current controversy surrounding the legality of torture can only be understood through an analysis of the distinction between justified necessity and excused necessity. Although there may be strong prudential reasons for international criminal courts to declare torture unlawful under any circumstance, this would not necessarily prevent a court from recognizing that an excuse may apply. However, the hallmark of the necessity excuse should not be understood, as it is in German law, as an exception that only applies when a defendant breaks the law to save someone close to him. Rather, the basic principle of the excuse ought to be that the impending harm so weighs on the conscience of the defendant that his autonomy is impermissibly infringed by the necessity of the situation. Given that the prospect of massive casualties might compel a police or military official to engage in torture, the relationship between the defendant and the potential victims is irrelevant. All that matters is that the defendant is torn between, on the one hand, a deontological commitment to treat all suspects humanely, and on the other, a consequentialist concern with the deaths of many innocent victims. Commentators have wrongly assumed that these consequentialist concerns are only relevant for justified necessity. But if a court finds that the pull of the latter is so strong that to resist it would require an act of extreme moral courage, the culpability of the defendant is negated and the defence of excused necessity could be applied.

Torture v. the Basic Principles of the US Military

Wallace, D. A. — 2008-05-15

It has already been noted that the recent legal justifications for torture provided by Bush Administration officials contravene human rights law, international criminal law and international humanitarian law as expressed in treaties and customary rules. However, the author provides a legal and policy analysis informed by military law to demonstrate that the use of torture or ill-treatment of detainees also contravenes the stated policy of the US military and is inconsistent with the basic principles of lawful warfare. More importantly, torture and the ill-treatment of prisoners are both ineffective as an interrogation tool and also hamper military effectiveness by destroying discipline. These reasons, in addition to the obvious moral considerations, demonstrate why modern armies have consistently adhered to customary and treaty rules prohibiting torture and the ill-treatment of prisoners. The author concludes that the basic principles of warfare demand that this prohibition constitutes a bright-line rule that applies to all prisoners regardless of legal status.

Guantanamo Torture Litigation

Menon, J. A. — 2008-05-15

Question: What happens when former Guantánamo detainees sue the US Secretary of Defense, raising claims of torture? Answer: A thicket of immunity defences bars their claims. But in the process, a US appeals court finds that torture of the detainees is ‘foreseeable,’ that it is ‘incidental’ to conduct authorized, and that detainees under the sole control of the US government have no constitutional rights. This language may ultimately prove more provocative than the dismissal itself.

Can Victims Sue State Officials for Torture?: Reflections on Rasul v. Myers from the Perspective of International Law

Fassbender, B. — 2008-05-15

In Rasul v. Myers the US Court of Appeals for the District of Columbia Circuit dismissed on 11 January 2008 appeals against decisions of the US District Court for the District of Columbia of 6 February 2006 and 8 May 2006, respectively. The original lawsuit was brought on behalf of four former Guantánamo detainees, citizens and residents of the United Kingdom, against the then Secretary of Defense, Donald Rumsfeld, the Chairmen of the Joint Chiefs of Staff and other senior military officers. The plaintiffs sought damages for their alleged maltreatment and torture at the US Naval Base at Guantánamo Bay in violation of international law and US constitutional and statutory law. The case raises important questions of international law which are addressed in this article. It puts to the test the assumption that post-World War II international law is characterized by a steady increase in the status and role of the individual. But is today an individual entitled to get his or her international human rights recognized by a foreign domestic court, and to be awarded damages if those rights have been violated? After briefly recalling those facts of the case and the arguments of the Court which are important for its evaluation from the perspective of international law, the article first examines the issue of a civil liability of a state, or state officials individually, for violations of human rights law and humanitarian law. The author then turns to the issue of enforcement of such a liability by a right of a victim to have access to the judicial system of the respective state. Thirdly, the article draws attention to the similarity of criminal punishment and punitive damages, arguing that a general exclusion of individual civil liability for acts of torture runs counter to the obligation of states to prosecute and punish individuals responsible for acts of torture. Subsequently, the issue of a personal immunity of state officials in civil proceedings is discussed. As a last important question of international law raised by the case, the author identifies the debatable compliance of the United States with Article 14(1) of the Convention against Torture, which obliges states parties to ensure in their legal systems that the victim of an act of torture obtains redress and has an enforceable right to fair and adequate compensation. The author concludes that, although the advanced process of a ‘humanization’ of international law suggests civil liability of state officials for violations of international law, so far states have not been ready to agree on it.

Why Article 5 Status Determinations are not 'Required' at Guantanamo

Dehn, J. C. — 2008-05-15

On 17 December 2007 the Military Commission convened to try Salim Ahmed Hamdan ruled that, as part of Hamdan's challenge to its jurisdiction, Article 5 of the Geneva Convention Relative to the Treatment of Prisoners of War (GPW) required the Commission to entertain Hamdan's claims of entitlement to prisoner of war status. The Commission rejected those claims and found Hamdan to be an unlawful combatant subject to its jurisdiction two days later. The author concludes that the Commission's decision to grant an Article 5 status determination was consistent with international humanitarian law. He further argues, however, that the Commission's decisions to conduct the status determination and to consider all-claimed prisoner of war categories under the GPW were inconsistent with the Military Commission Act, specifically its definition of lawful and unlawful combatants and, hence, inconsistent with the US national law governing the Commission.

Under What Conditions May Belligerents be Acquitted of the Crime of Attacking an Ambulance?

Cassese, A. — 2008-05-15

The author discusses a decision handed down in 2007 by an Italian military court concerning the firing by Italian troops on an Iraqi ambulance in 2004, at Nassiriyah, resulting in the killing of four civilians. The court held that the action was covered by the defence of putative ‘special military necessity’ and consequently acquitted the two defendants. The author argues that the accurate basis on which to exclude criminal culpability, both under Italian law and international criminal law, could be the excuse of putative self-defence. He also raises the issue of whether in that case the servicemen behaved negligently in acting in the belief that the ambulance was likely to be a car-bomb. The author then discusses the question of compensation to civilians for violations of international humanitarian law, regardless of whether such violations entail the criminal liability of the perpetrators.

Ronald C. Slye and Beth Van Schaack, International Criminal Law and Its Enforcement - Cases and Materials

Sloane, R. D. — 2008-05-15

Noelle N.R. Quenivet, Sexual Offenses in Armed Conflict & International Law

Gurd, T. — 2008-05-15

Gideon Boas, The Milosevic Trial: Lessons for the Conduct of Complex International Criminal Proceedings

Wilson, P. — 2008-05-15

Thilo Marauhn (ed.), Bausteine eines europaischen Beweisrechts

Schuttpelz, O. — 2008-05-15

Donatella della Porta, Abby Peterson and Herbert Reiter (eds), The Policing of Transnational Protest

Smith, F. C. — 2008-05-15

Geert-Jan Alexander Knoops, Redressing Miscarriages of Justice: Practice and Procedure in National and International Criminal Law Cases

Carrier-Desjardins, L. — 2008-05-15

Editorial

2008-03-19

Liberal Values in International Criminal Law: A Critique of Erdemovic

Fichtelberg, A. — 2008-03-19

Using the Erdemovic decision as its starting point, the article examines the philosophical foundations of international criminal law. It asserts that international criminal law, properly understood, represents a liberal legal system, emphasizing the rights of the accused over the interests of the prosecution or the goals of international peace and security. Using the work of Ronald Dworkin, it argues that international jurists should apply principles that invoke a respect for human rights and individual autonomy over ‘policy’. Thus, it argues that the reasoning of the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia was flawed when it determined that duress did not constitute a complete defence in Erdemovic.

Reconciling Crimes Against Humanity with the Laws of War: Human Rights, Armed Conflict, and the Limits of Progressive Jurisprudence

Akhavan, P. — 2008-03-19

If conduct is consistent with the laws of war, may it nonetheless constitute crimes against humanity during an armed conflict? Crimes against humanity initially emerged during the World Wars, in order to extend the protection of the laws of war to a perpetrator's co-nationals. This new category initially required a nexus with international armed conflict, but is now an autonomous concept based on human rights law that criminalizes large-scale atrocities in both war and peacetime. Crimes against humanity committed in armed conflict continue to be shaped by the laws of war. There is substantial convergence between the normative core of ‘non-derogable’ human rights and the minimum humane treatment standards in the Geneva Law. However, there is considerable divergence with respect to combat operations where the Hague Law applies as lex specialis, displacing certain human rights norms. ICTY jurisprudence demonstrates some of the instinctive tensions inherent in reconciling human rights with armed conflict. A notable instance is the Gotovina case, in which the Trial Chamber held that the laws of war do not apply to ‘deportation’ qua crimes against humanity such that there is no distinction between forcible displacement of civilians in occupied territories as opposed to combat operations. The temptation to dilute the laws of war through reclassification of conduct as crimes against humanity should be resisted because it does not necessarily result in increased protection for civilians in times of armed conflict. Utopian jurisprudence that disregards humanitarian law's realistic code of conduct in the name of progress risks making the law irrelevant to military commanders.

Fatal Errors: The Trial and Appeal Judgments in the Dujail Case

Bhuta, N. — 2008-03-19

This commentary reviews the written judgments of both the First Trial Chamber and the Appeals Chamber of the Iraqi High Tribunal (IHT) in the Dujail case. The article considers the key substantive and procedural findings by the Trial Chamber and Appeals Chamber and evaluates the decisions’ consistency with international criminal law. It concludes that the decisions made serious errors in their application of international criminal law principles governing the knowledge and intent of the defendants, and also in respect of findings of fact concerning the knowledge and intent of the defendants. These errors appear closely connected to the failure of the investigative judge and prosecution to present evidence which was essential to establish knowledge and intent in the manner required by international criminal law. The article concludes that many aspects of the convictions were unsustainable as a matter of fact and law. It ends by reflecting on some of the factors which contributed to the failure of the IHT to produce a credible verdict.

Foreword

Swart, B. — 2008-03-19

Some Considerations on Faces of Justice by a 'Non-Specialist'

Chiavario, M. — 2008-03-19

The author examines the well-known book by Mirjan Damaska as well as other more recent books and writings of the distinguished author against the specific background of the Italian experience in reforming its system of criminal procedure with a view to commenting upon sensitive issues in current international criminal proceedings. Three key factors in assessing the ‘real’ nature of a procedural system are examined: (i) the role of judges in the proceedings; (ii) the rules on evidence and (iii) the duty to render reasoned decisions. Subsequently, the author tackles the issue of self-representation in international criminal justice, in light of Damaska's categories (conflict-solving v. policy-implementing) and of the difficulties in transposing them to the international level. Finally, the author warns that the analysis of international criminal justice should not be confined in over-rigid models. The overriding concern must be to harmonize the ‘fair trial’ model with sensitivity to certain objectives of justice that cannot be possible objects of compromise (as they may be where judicial authority operates purely as arbiter of a dispute).

Damaska and the Faces of International Criminal Justice

Swart, B. — 2008-03-19

Mirjan Damaska 's scholarly publications provide important insights for the analysis of systems of criminal justice at the international level. This is particularly true for his major book: The Faces of Justice and State Authority – A Comparative Approach to the Legal Process. The book develops ideal types, or models, of the structure and the function of government. As far as the structure of government, the ideal types of hierarchical and coordinate officialdom are contrasted with one another. With regard to the function of government in society, two other mutually exclusive ideal types are developed: the ideal type of the purely reactive state and that of the purely activist state. In the purely reactive state all state activities are essentially a form of dispute resolution between individual citizens. Consequently, all proceedings take the shape of a contest between two parties. In the reactive state, on the other hand, all law is an expression of state policies. This entails that all proceedings are essentially an official inquiry enabling the state to implement its policies. The four ideal types call for several observations, one of them being that, at the international level, there is no authority that can be compared to a state.

Setting up international criminal courts requires choices with regard to the structure and function of authority. International human rights instruments provide no guidance as to the nature of the choices to be made. In particular, they do not indicate whether the legal process should be structured as a contest between two parties or as an official inquiry. The same is true for empirical evidence.

An analysis of the structures of authority in international criminal courts reveal that they represent hybrids of the hierarchical and the coordinate ideal types of officialdom. The fact that these courts are unitary courts has a profound effect on evidentiary arrangements.

The most important issue raised by the exposition of ideal types of The Faces of Justice concerns the relationship between the goals of international criminal justice and the appropriate legal process to serve their realization. Goals of a conflict-solving nature are best served by a legal process structured as a contest between two parties and goals related to the implementation of policies by a legal process structured as an official inquiry. It is therefore essential to determine what goals are being pursed by international criminal courts. One may distinguish here between goals that international systems of justice may or may not have in common with national systems of criminal justice. The pursuit of the traditional goals of criminal justice common to international and national systems of justice does not provide compelling reasons to prefer either a contest model or an inquest model of the legal process. This is different, however, for the idiosyncratic goals of international criminal justice that set apart international systems of criminal justice from national systems. The pursuit of these goals makes it desirable that historical facts are established as accurately as is possible in the given circumstances. They are, therefore, best served by a legal process that takes the shape of an official inquiry. In the hybrid type of procedure adopted by the ICTY there is insufficient clarity about the procedural status of the peculiar goals of international criminal justice as well as about the use of procedural means to pursue them. This entails that it is not really possible to determine whether this hybrid represents a success. Hybrid types of procedure cannot truly exist without adopting a view with regard to the impartiality of judges that is inspired by standards enshrined in international human rights instrument rather than those that are characteristic for the legal process shaped as a contest between two parties.

The ECHR in Iraq: The Judgment of the House of Lords in R (Al-Skeini) v. Secretary of State for Defence

Thienel, T. — 2008-03-19

The House of Lords has held that the ECHR does not apply to the acts of the UK armed forces in Iraq, except in their military prisons. More generally, the House has endorsed the position that the ECHR cannot apply to areas controlled by a state party outside the territories of the Council of Europe. The author disputes the treatment of the European cases that led the House to this position, and criticizes the suggestions that the introduction of European human rights law was culturally inappropriate and even unlawful under the regime of belligerent occupation.

New Paths in International Criminal Justice?: The Internal Rules of the Cambodian Extraordinary Chambers

Acquaviva, G. — 2008-03-19

The Internal Rules of the Cambodian Extraordinary Chambers adopted in June 2007 provide some insight into how a non-adversarial system might work in the context of a hybrid tribunal with jurisdiction over both domestic and international crimes. This approach presents various novelties, especially with respect to the pre-trial and trial stages of the proceedings, and provides an example of integration into a domestic non-adversarial system of principles derived from international criminal procedure.

Richard Vogler, A World View of Criminal Justice

Yarwood, L. — 2008-03-19

Cyril Laucci, Digest of Jurisprudence of the Special Court for Sierra Leone 2003-2005

Le Diraison, F. — 2008-03-19

Frank Neubacher, Kriminologische Grundlagen einer Internationalen Strafgerichtsbarkeit. Politische Ideen- und Dogmengeschichte, Kriminalwissenschaftliche Legitimation, Strafrechtliche Perspektiven

Nimaga, S. — 2008-03-19

JICJ-Giorgio La Pira Prize Announcement

2008-03-19

Editorial

2007-11-05

The UN Commission of Inquiry on Lebanon: A Legal Appraisal

Stewart, J. G. — 2007-11-05

In the wake of the Second Lebanon conflict, the UN Human Rights Council established an independent body of experts to investigate alleged violations of international humanitarian law (IHL) perpetrated by Israeli forces. The Commission's report suffers from one serious and conspicuous flaw — the Commission was not charged with simultaneously considering Hezbollah's violations of the same body of law. In some instances, this one-sided focus was not only politically unbalanced, but substantively inadequate since a full understanding of Hezbollah's command structure, strategic objectives and military operations was essential in determining whether targets destroyed by Israel were legitimate military objectives and whether consequences for civilians were disproportionate to the military advantage gained. Be that as it may, the Commission's final report testified to the excessive, indiscriminate and disproportionate use of force by Israeli forces and an overall lack of respect for the cardinal principles regulating the conduct of armed conflict. The Commission's findings are particularly disquieting, given the independent nature of the investigation and, ultimately, the compatibility of much of the Commission's legal reasoning with orthodox interpretations of IHL. The legal issues raised by the Inquiry are therefore of ongoing importance, most notably for the Israeli-appointed Winograd Committee.

Foreword

Cockayne, J. — 2007-11-05

In this Foreword to a Symposium on the newly established Special Tribunal for Lebanon (STL), the editor of the Symposium highlights innovations the STL offers, and challenges it may face to become a viable institution. He queries whether the STL was intended to be a cripple from birth. Acknowledging that the ICTY earlier proved expectations of its impotence wrong, the author nonetheless argues that the STL not only lacks some of the tools the ICTY enjoyed, but also faces two additional constraining social conditions: more highly attuned and wary potential defendants; and the very doctrine that the ICTY and its peer tribunals have elaborated. The author argues that there is a danger that, in their zeal to bring the perpetrators of the Hariri assassination to justice, the STL and its backers in the Security Council may damage that very doctrine, and damage the credibility of the enterprise of international criminal justice. On the other hand, a cautious, professional STL could contribute significantly to that enterprise, by demonstrating the feasibility of a more streamlined criminal procedure, by extending the technologies of international criminal justice to crimes of terrorism, and by taking a small step towards ending the culture of impunity and violent dispute resolution that prevails in Lebanon.

Early Reflections on Local Perceptions, Legitimacy and Legacy of the Special Tribunal for Lebanon

Wierda, M., Nassar, H., Maalouf, L. — 2007-11-05

Resolution 1757 (2007) has come into force in challenging circumstances in terms of Lebanese politics. At the time of writing, Lebanon's government is at a deadlock between two political alliances known as March 8 and March 14. While the latter has welcomed the Resolution, the former has expressed reservations about the impact of the Resolution's passage on Lebanese sovereignty. Further challenges to the legitimacy of the Special Tribunal for Lebanon (‘STL’) are posed by (1) Lebanon's historical context including its 15-year war followed by selective impunity; (2) the highly selective nature of the jurisdiction of the STL and (3) the political context and fears that the STL itself will act as an instrument for foreign powers. This article suggests that the UN and STL can address some of these legitimacy challenges through their operations, including the transparent selection of judges and senior officials; attracting funding from a variety of states; and effective outreach. Above all, the STL should be differentiated from the other Tribunals. It should be seen as the logical next step to the International Independent Investigative Commission. In addition, the STL should strive to leave a lasting legacy in Lebanon and in the field of international criminal law.

A Lebanese Perspective on the Special Tribunal for Lebanon: Hopes and Disillusions

Sader, C. — 2007-11-05

The author, a Lebanese judge and member of the Lebanese delegation that negotiated the Statute of the Special Tribunal, affirms the constitutionality of the Special Tribunal and discusses its promise, innovations and shortcomings.

Reflections on the International Legality of the Special Tribunal for Lebanon

Fassbender, B. — 2007-11-05

This article addresses legal problems posed by Security Council Resolution 1757 of 30 May 2007, establishing the Special Tribunal for Lebanon (‘STL’). After describing the historical background of the resolution (section 1) and the plan to establish the STL as a treaty-based institution (section 2), the paper turns to an analysis of Resolution 1757 (section 3). The author questions whether the Council intended to bring the Lebanon-UN agreement into force as an international treaty, and holds that the UN Charter does not give the Council a power to unilaterally impose on a member state an obligation in the form of a treaty. The author argues that in Resolution 1757 the Council did not substitute a Chapter VII decision for the missing ratification of the agreement by Lebanon, but instead established the STL by making the provisions of the agreement negotiated with Lebanon an integral part of a Chapter VII resolution. Section 4 then questions whether the Council was entitled to procure Lebanon's consent to be bound by a treaty by threatening unilaterally to put those provisions into effect through a Chapter VII resolution. After discussing certain rules of the law of treaties concerning the coercion of a state, the author concludes that it is not that law but the UN Charter itself that prohibits the Council from exerting pressure on a member state in order to make that state ratify a treaty.

Some Innovations in the Statute of the Special Tribunal for Lebanon

Aptel, C. — 2007-11-05

The Statute of the Special Tribunal for Lebanon contains several remarkable innovations. One major novelty is its mandate. While its subject matter jurisdiction includes terrorism, this is defined solely on the basis of Lebanese law. It does not cover any international crime, but exclusively offences defined under the Lebanese Penal Code. Unusually for a court of international character, its activities could be limited to a single case: the attack of 14 February 2005 which killed Rafiq Hariri and 22 others; the Special Tribunal will try other cases only if they are found to be connected to this attack. As its jurisdiction mirrors the mandate of the UN International Independent Investigation Commission, the Statute of the Special Tribunal contains original provisions regulating its relationship with this body, as well as with the Lebanese judicial authorities, which enjoy concurrent competence. Other important innovations concern the applicable procedural law, which includes provisions concerning a pre-trial judge, the role of the judges in conducting the hearings, the participation of victims in proceedings, and the possibility of holding trials in absentia. These latter aspects are all characteristic of Romano Germanic criminal systems, and reflect the intention of the drafters to draw up a more efficient international criminal procedure.

The Subject-Matter Jurisdiction of the Special Tribunal for Lebanon

Jurdi, N. N. — 2007-11-05

The Special Tribunal for Lebanon (STL) represents a sui generis international tribunal on various levels. It is the first time a treaty-based Tribunal has been established through a resolution of the Security Council adopted under Chapter VII. A further unique feature is its sole dependence on domestic substantive crimes. The attempt to include crimes against humanity in the Statute did not succeed, despite the fact that the elements of a crime against humanity seem to be discernable in the conduct that falls within the jurisdiction of the STL. References to international and regional terrorism instruments, such as the Arab Convention for the Suppression of Terrorism, were also abandoned. The Tribunal will rely on Lebanese criminal provisions regarding terrorism, illicit associations, crimes and offences against life and personal integrity. Lebanese law provides an old but concrete definition of terrorism. This raises the question of whether the Lebanese definition, with its strengths and weaknesses, could assist in the evolution of a well-structured definition of international terrorism. The possibility of ‘internationalizing’ the Lebanese definition will depend on two factors: the judges’ approach in adopting the Tribunal's rules of evidence and procedure, and then more importantly their creativity in developing the jurisprudence of the Tribunal.

An Odd Couple: Domestic Crimes and International Responsibility in the Special Tribunal for Lebanon

Milanovic, M. — 2007-11-05

This article examines one of the most serious flaws of the Statute of the Special Tribunal for Lebanon (‘STL’): while it provides that Lebanese domestic law is the sole source of crimes over which the STL will have jurisdiction, it at the same time applies to these domestic crimes uniquely international forms of criminal responsibility, namely joint criminal enterprise and command responsibility. By doing so, the Statute is in violation of the nullum crime sine lege principle, since it would allow for the conviction of persons who could not be held responsible under Lebanese law. The purpose of this article is to highlight some ways out of this problem.

Cooperation Challenges for the Special Tribunal for Lebanon

Swart, B. — 2007-11-05

While the Agreement between the United Nations and Lebanon provides a solid framework for cooperation between the Special Tribunal and Lebanon, Security Council Resolution 1757 (2007) is silent on the duty of third states to assist the Tribunal. As a result, the Special Tribunal will be confronted with a variety of obstacles and problems in obtaining their cooperation, which may seriously hamper its functioning.

To Be (Present) or Not To Be (Present): Trials In Absentia before the Special Tribunal for Lebanon

Gaeta, P. — 2007-11-05

One feature of the Special Tribunal for Lebanon (‘STL’) differentiating it from other international criminal tribunals (except for the Nuremberg International Military Tribunal) is that its Statute allows for trials in absentia. The Statute permits such trials when an accused failed to appear in court or even to appoint a defence lawyer, but only on the condition that, where the indictment could not be served or notified to the accused, it was duly publicized through the media or communicated to the state of residence or nationality of the accused. Following the case law of the European Court of Human Rights, Article 22(3) of the STL Statute allows for retrial, except where an absent defendant was represented at trial by counsel of his or her own choosing. The author argues this right to retrial should not be applied either where (i) the accused expressly waived in writing his right to be present, but then failed to appoint counsel of his choosing; or (ii) a state's failure to hand the accused over to the STL does not cure the accused's refusal to voluntarily surrender to the STL. She also argues that the right of retrial following trials in absentia ought to accrue to Lebanese courts, notwithstanding Article 5(1) of the Statute, which seems to prohibit Lebanese courts retrying individuals convicted by the STL. Finally, she takes into account the position of states that prohibit trials in absentia, but are requested to surrender a person convicted in absentia by the STL for the purpose of executing his sentence, suggesting an ad hoc agreement between the state in question and the STL may be required as a remedy.

Current Developments at the Ad Hoc International Criminal Tribunals

Gaynor, F., Goy, B. — 2007-11-05

Mark Drumbl, Atrocity, Punishment and International Law

Parmentier, S. — 2007-11-05

Shane Darcy, Collective Responsibility and Accountability Under International Law

Nissel, A. — 2007-11-05

Olaoluwa Olusanya (ed.), Rethinking International Criminal Law: The Substantive Part

Batros, B. — 2007-11-05

Olaoluwa Olusanya, Sentencing War Crimes and Crimes against Humanity under the International Criminal Tribunal for the Former Yugoslavia

Gaynor, F. — 2007-11-05

Cumulative Table of Contents

2007-11-05