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An Insider's Guide to the International Tribunal for the Former Yugoslavia: A Documentary History and Analysis.
... armed movements. 46,47 Th e rest of the secondary actors are related to the 'arms-diamonds-violence' triangle. At local level it is important to highlight the Lebanese and local traders (mainly Temne and Mende) who enriched themselves during the war. ...
... It is vital to appreciate the complexity of post-confl ict transitions, the mismatch between expectations for rapid recovery and the processes that his- torically have taken considerably longer, and the crucial issues of state-society rela- tions, as well as the type of state institutions needed to sustain peace, especially in fragile states, weak and failed states in Africa where most armed confl icts occur. 46 ...
... 45 In Harare, the mobs hacked a ZAPU candidate to death with axes and killed many others, including two preg- nant women. 46 In this orgy of violence, the police stood aside and watched. It appears they were under strict instructions not to intervene. ...
This publication was made possible through funding provided by the Governments of Denmark, the Netherlands, Norway and Sweden. Th is monograph is a collection of papers that were presented at the African Human Security Initiative conference that was held in Addis Ababa in February 2008. It discusses the changing methodologies used to analyse and map violent confl icts, confl ict resolution and peace building approaches in Africa by moving away from western-focused socio-political lenses that have defi ned the diff erent policy reactions to confl ict in the region. It is thus an attempt to apply a more holistic, multidisciplinary approach to understanding causes of violent confl ict and, perhaps more importantly, how to diff use them in a way that allows for the total disengagement of the military from the political control of the state by positioning the former in a manner that allows them to safeguard the territorial integrity of the states they serve, as this guarantees democratic stability by protecting and defending legitimate democratic institutions. Th e monograph's chapters off er distinctive and harmonising approaches to the way in which peace is, and can be, achieved in sub-Saharan Africa. A propos de la monographie Il s'agit d'une collection d'articles présentés lors de la conférence sur l'Initiative de Sécurité Humaine en Afrique qui s'est tenue à Addis-Abeba en février 2008. Y est abordée la question des changements survenus dans les méthodologies utilisées pour l'analyse et la projection détaillée des confl its violents, de la résolution de ces confl its, des approches visant à la consolidation de la paix en Afrique, dès lors que l'on s'est détaché de cette focalisation socio-politique proprement occidentale à travers laquelle avaient jusqu'alors été déterminées les diff érentes politiques de réaction aux confl its dans la région. Cette monographie présente donc la volonté d'appliquer une approche plus holistique et multidisciplinaire permettant de comprendre les causes des confl its violents, et peut-être, par-dessus tout, la façon de les atténuer de manière à permettre un désengagement total de l'armée du contrôle politique du gouvernement en lui donnant une position lui permettant de sauvegarder l'intégrité territoriale des Etats au service desquels elle se trouve, car c'est cela qui garantit la stabilité démocratique, en protégeant et en défendant les institutions démocratiques légitimes. Tout en ayant leurs propres caractéristiques, les diff érents chapitres de la monographie fusionnent et présentent une approche harmonisée de la façon dont la paix est et peut être établie en Afrique sub-saharienne.
... We aim to describe what, according to different observers and participants, it was supposed to produce in terms of socio-political outcomes. The factual story of precisely how the International Criminal Tribunal for the former Yugoslavia came to be established, and how it functioned in its first decade, has been described in great detail elsewhere (Scharf, 1997;Morris and Scharf, 1995;Bass, 2000;Hagan, 2003). For the purposes of this chapter we will focus on just a few elements of this story which we believe to be pertinent to our inquiry concerning expectations of the Tribunal. ...
... Two influential volumes of the mid-1990s (Morris and Scharf, 1995;Clark and Sann, 1996) demonstrate how after the Tribunal's shaky start, the measure of its success was largely reduced to one single question: can any big fish be caught? Peter Burns saw this as depending on political and financial support, and held that "the signs are not encouraging" (Burns, 1996, 158). ...
... We aim to describe what, according to different observers and participants, it was supposed to produce in terms of socio-political outcomes. The factual story of precisely how the International Criminal Tribunal for the former Yugoslavia came to be established, and how it functioned in its first decade, has been described in great detail elsewhere (Scharf, 1997;Morris and Scharf, 1995;Bass, 2000;Hagan, 2003). For the purposes of this chapter we will focus on just a few elements of this story which we believe to be pertinent to our inquiry concerning expectations of the Tribunal. ...
... Two influential volumes of the mid-1990s (Morris and Scharf, 1995;Clark and Sann, 1996) demonstrate how after the Tribunal's shaky start, the measure of its success was largely reduced to one single question: can any big fish be caught? Peter Burns saw this as depending on political and financial support, and held that "the signs are not encouraging" (Burns, 1996, 158). ...
To speak about socialist Yugoslavia in the present-day Slovenia governed by nationalist and neo-liberal ideologies is controversial because of both terms, socialist and Yugoslavia. Judging exclusively by dominant discourses and from afar, one could get the impression that everything about Slovenia’s transition is clear, binary and evolutionary: Slovenia eventually gained independence and escaped the Balkan quagmire; it turned its thousand-year-old dream into reality by becoming part of Europe — where it always belonged.1 By contrast, the former political system was simply a bloody dictatorship, Yugoslavia was exploiting the Slovenes, its leaders were tyrants, the Partisan fighters’ struggle during World War II was nothing less than the Bolshevik revolution, and other south Slavic nations are seen through the prism of the stock Balkan stereotypes. Put briefly, it seems that everything related to the term “Yugo” suggests an unstoppable civilizational decline and moral disaster. These obstinate ideological constructs could lead one to conclude that the less the Slovenes have to do with their Yugoslav and socialist past, the better for them. And yet, a closer look suggests a much more complex situation.
... In the example of former Yugoslavia and Rwanda, the publication of documentary evidence did not initiate international political action or local demonstration. 82 There is political criticism of the testimony evidence claiming it as top-down expert arbitration of testimony. 83 They learn that there is unequal power between the interpretation of the expert testimony in one hand, and on the other hand, people whose narrative is used as evidence. ...
... scholarship have been written about the work of the ICTY, its establishment, laws and procedures, sentencing, victims and witnesses testifying before the court, or its contributions to history writing or effect on reconciliation in the postconflict societies (cf. D'Ascoli, 2011;Kutnjak Ivković & Hagan, 2011;Morris & Scharf, 1995;Orentlicher, 2008;Stover, 2005;Wilson, 2011). As the Tribunal's mandate came to an end in December 2017, the ICTY's legacies in all these different areas are being discussed and evaluated. ...
Based on all publicly available International Criminal Tribunal for the Former Yugoslavia (ICTY) early release decisions as of May 31, 2017, this explorative article empirically analyzes, systematizes, and evaluates how ICTY convicts reflected on their past crimes during early release proceedings and how this affected decision-making of the ICTY President regarding their level of rehabilitation and early release. For this purpose, we developed an analytical framework distinguishing between acknowledgement of responsibility and remorse, as two forms of reflection on the past crimes, and their general and personal dimensions. Our analysis demonstrates that of all 53 individuals early released at the ICTY, 36% were considered sufficiently rehabilitated and a part of their sentence pardoned without any information regarding their outlook on the crimes they had been convicted of. Only 19% of the early released prisoners acknowledged their personal responsibility and expressed remorse for the crimes they committed. Others denied, only partially accepted responsibility and/or showed remorse on a general level, which, however, did not bar their early release. The article argues that this haphazard practice brings into question the ICTY legacy with respect to its goal of offender rehabilitation and its potential effects on reconciliation in the Former Yugoslavia.
... Whatever the practical achievements of the ICTY may prove to be, the UN Security Council has recognized the first truly international criminal for the prosecution of persons responsible for serious violations of international humanitarian law [25]. " The Tribunal" means the International Tribunal for the Prosecution of persons Responsible for serious violation of International humanitarian law committed in the territory of the Former Yugoslavia since 1991, established by the SC ( Security Council) pursuant to its resolutions 808(1993) and 827(1993) [26]. The establishment of the ICTY under Chapter VII was a measure not concerning the use of force and, thus, fell squarely within the influence of Art. ...
The ICC (International Criminal Court) is the last great international institution of the twentieth century. In July 17, 1998, 120 states voted to adopt the Rome statute of the ICC at headquarters of the FAO (Food and Agriculture Organization of the United Nations) in Rome. The elaborate and complex negotiated instrument, a framework for an international criminal justice system, represented the highest point of a process that began in the wake of the Nuremberg Judgement, when the first time United Nations considered the establishment of an international criminal jurisdiction. In future, the ICC resolve more increasingly be capable of show, by way of powerful judgements resulting from fair and efficient trials, that it sets legal and moral standards that will contribute to the expansion of International Justice. The ICC is based on a treaty, joined by 123 countries. The mechanism of Art.21(3), which is more precise than that of the ICTs, could encourage them to give greater weight to International human rights instruments.
... 65 The Tribunal was formally entitled the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991. On this subject, see: Aldrich, 1996;Brien, 1993;Lattanzi, 1995;Meron, 1993 andWarreport Special Issue 1995a;Morris & Scharf, 1995;Owen, 1995b;Shraga & Zacklin, 1994;Vierucci, 1995. Of useful consultation is the UN Secretary-General's report on the UN Tribunal's dispositions as previewed by paragraph 2 of UN Resolution 808 (UN doc. ...
... It was the first truly international criminal court since Nuremberg. (5) In 1992 half-a-million men, women and children were butchered in genocidal slaughter by rival tribes in Rwanda. By 1994, the Security Council had created another ad hoc tribunal to bring responsible leaders to trial. ...
Ever since the Judgment at Nuremberg, it has been universally binding law that aggressive war is not a national right but an international crime. The most fundamental human right is to be able to live in peace. Yet, since 1945, an estimated 170 million people have been killed in armed conflicts but no one has been held criminally accountable for their deaths. It is high time for the world community to get aggressive about deterring, punishing and suppressing aggression.
... Security Council Resolution 827, passed on 25 May 1993, defined the ICTY's legal and administrative parameters, and thus governed the work and scope of the Tribunal. Key among these parameters was that, one, the Security Council had direct control over the choice of Prosecutor and, two, the Tribunal could obtain direct support from any government and private (IO and NGO) organization in the form of 'funds, equipment and services' (Morris and Scharf, 1995: 177–178). Put together, these provisions permitted space for state influence over the ICTY through an adept combination of astute prosecutorial appointments and 'private' judicial financing. ...
This article challenges the optimism common to liberal IR and IL scholarship on the ‘rule of law’ in global governance. It argues that the concept of the ‘rule of law’ is often employed with sparse inquiry into the politics of its practical meaning. Specifically, the article focuses on liberal research that advocates the emergence of a ‘global’ judiciary, and the claim that judicial governance will marginalize state power and authority. Rather than employ a zero-sum conception of power, this article regards a prospective global legal system less as a constraint on state power and more as a rationale for rule ‘through’ law by vested actors. To make the argument, Michel Foucault’s concept of ‘governmentality’ is combined with Barnett and Duvall’s notion of ‘productive power’ to denote how legal techniques of power are integral to the construction of social ‘truth’ and consequently the governance of conduct. This is further associated with Koskenniemi’s critical scholarship on the power of law’s perceived objectivity and universality. In this vein, the article questions how liberal scholars use the American judicial model (the Marbury ideal) to claim that an institutionalization of ‘global’ judicial authority can deliver the rule of ‘no one’ in global governance. A governmentality perspective is then applied which suggests that the lack of supreme constitutional rules at the global level makes judicial governance less a check than a means to propagate normative standards conducive to dominant state power.
... [39] Acknowledging some of the benefits of plea bargaining the then President Antonio Cassese declared that the crimes before this tribunal were too abhorrent to be part of a negotiation with the defendant. [40] The situation changed dramatically, however, when the international community employed financial incentives to encourage the Balkan authorities to transfer indictees to the Tribunal and NATO agreed to arrest indictees. [41] Both developments meant that the caseload of the court was growing rapidly and that to hold full blown trials for each defendant became more and more difficult. ...
One of the most important functions of the international criminal trial is to create an accurate and accessible historical record. This paper analyses to what extent plea bargaining can hinder or facilitate the establishment of the historical record. Drawing on the experience of the ICTY and the ICTR the author makes a number of proposals as to what how and to extent plea bargaining should be used at the ICC to advance rather than to obstruct the historical record.
The 1948 Genocide Convention is a vital legal tool in the international campaign against impunity. Its provisions, including its enigmatic definition of the crime and its pledge both to punish and to prevent the 'crime of crimes', have now been considered in important judgments by the International Court of Justice, the international criminal tribunals and domestic courts. Since the second edition appeared in 2009, there have been important new judgments as well as attempts to apply the concept of genocide to a range of conflicts. Attention is given to the concept of protected groups, to problems of criminal prosecution and to issues of international judicial cooperation, such as extradition. The duty to prevent genocide and its relationship with the doctrine of the 'responsibility to protect' are also explored.
What is the function of the modes of responsibility? They aim to determine the rules under which criminal responsibility might be effectively imposed on two or more persons who contributed to the same crime. They need to extend the scope of responsibility to the one who materially contributed to the criminal act, supported and encouraged the crime. Such rules need to be sufficiently capacious to cover various forms of contribution to the crime and ensure that those culpable of the crime can be brought to justice. However, at the same time, the modes of responsibility need to be clear and nuanced in order to avoid the impression that different and incomparable forms of participation in crime will be lumped together. There are several routes to these general goals. This chapter discusses how different normative concepts (for example co-perpetration or aiding and abetting) may be used by the legislator to resolve exactly the same problems and how some very complicated scenarios might be approached by the adoption of various modes of criminal responsibility. This part of the book presents alternative theoretical approaches concerning forms of participation in crime, enhanced by the remarks based on the concept of interconnected norms.
https://www.tandfonline.com/eprint/JNPMMWIXCXBIWKPEZH5Q/full?target=10.1080/21681392.2024.2339246
By critically examining atrocity reports as a ‘genocide genre’, the authors seek to demonstrate how the combination of political, legal, historical, and other narratives enables these reports to become an important advocacy tool for international human rights organisations. Employing critical discourse analysis, and qualitative and quantitative content-analysis, the article proceeds with the examination of atrocity reports on Rwandan genocide, in order to uncover the representation of such categories as victim/perpetrator/international community, as well as ‘the colonial question’. We also look into the topics not properly explored by the reports’ authors, namely, social and economic inequalities that enable genocide. Contrary to the assumption that NGO reports are objective, politically impartial, and emotionally neutral, our conclusions point to the strategies of politicisation, sensationalism, and emotivity to manipulate a broad (international) audience. By drawing these conclusions, we seek to contribute to the emerging field of critical research that re-examines the role of ‘international norm entrepreneurs’ in African conflicts, and in world politics more generally.
Combining interdisciplinary techniques with original ethnographic fieldwork, Christoph Sperfeldt examines the first attempts of international criminal courts to provide reparations to victims of mass atrocities. The observations focus on two case studies: the Extraordinary Chambers in the Courts of Cambodia, where Sperfeldt spent over ten years working at and around, and the International Criminal Court's interventions in the Democratic Republic of Congo. Enriched with first-hand observations and an awareness of contextual dynamics, this book directs attention to the 'social life of reparations' that too often get lost in formal accounts of law and its institutions. Sperfeldt shows that reparations are constituted and contested through a range of practices that produce, change, and give meaning to reparations. Appreciating the nature and effects of these practices provides us with a deeper understanding of the discrepancies that exist between the reparations ideal and how it functions imperfectly in different contexts.
Individuals can assume—and be assigned—multiple roles throughout a conflict: perpetrators can be victims, and vice versa; heroes can be reassessed as complicit and compromised. However, accepting this more accurate representation of the narrativized identities of violence presents a conundrum for accountability and justice mechanisms premised on clear roles. This book considers these complex, sometimes overlapping roles, as people respond to mass violence in various contexts, from international tribunals to NGO-based social movements. Bringing the literature on perpetration in conversation with the more recent field of victim studies, it suggests a new, more effective, and reflexive approach to engagement in post-conflict contexts. Long-term positive peace requires understanding the narrative dynamics within and between groups, demonstrating that the blurring of victim-perpetrator boundaries, and acknowledging their overlapping roles, is a crucial part of peacebuilding processes. This title is also available as Open Access on Cambridge Core.
The armed conflict in former Yugoslavia has been the result of a multifunctional process between politics, ideology and the interaction of international actors. The gradual transition from communism to nationalism was accompanied by a particular surge of violence and hatred in the context of the creation of a Greater Serbia. The War in Yugoslavia was the bloodiest war in modern European history since World War II. From Slovenia to Bosnia, the dispersal of the armed conflict was heinous and had similar effects. The commission of crimes that constituted ethnic cleansing and the creation, for the first time, of the International Criminal Tribunal for former Yugoslavia proved the wide range of crimes that took place and set up the basis of the strengthening of International Humanitarian Law, as well as International Criminal Law.KeywordsFederal Republic of YugoslaviaBosnia-HerzegovinaCroatiaSlovenianationalismdisintegrationethnic cleansingSrebrenicaDaytonICTYself-determinationsecession
Procedures at the International Criminal Court (ICC) and ad hoc international criminal tribunals are based on the adversarial system in which live testimony and cross-examination at trial by contesting parties have significant meaning and the role of judges remains comparatively modest. Meanwhile, these judicial organs that are entrusted with objective truth seeking have also demonstrated some inquisitorial characteristics from the very outset. The necessity to expedite proceedings on large-scale international crimes became obvious through actual judicial practice at these forums, and procedural rules of inquisitorial characteristics have been further introduced. However, the introduction of such inquisitorial attributes as a wide recognition of written evidence, which is apparently necessary for efficient proceedings on large-scale international crimes, must be effectuated in a deliberate manner so as not to bring about injustice due to the inappropriate mixing of two different systems.
The interaction between domestic law and international law is a topic of perennial interest for international lawyers. Domestic law has long been recognised as a source of international law, an inspiration for legal developments, or the benchmark against which a legal system is to be assessed. More often than not, it is simply treated as mere fact, indicative of the legality of a state’s actions. Academic commentary invariably re-traces these well-trodden paths, leaving one with the impression that the interaction between domestic and international law has been thoroughly mapped, unworthy of further enquiry. However, a different – and surprisingly pervasive – nexus between the two spheres has been largely overlooked: the use of domestic law in the interpretation of international law. The present thesis fills this gap in the literature. This thesis aims to answer two questions: first, is domestic law used in the interpretation of international law by international courts and tribunals; and, second, is it permissible for courts and tribunals to use domestic law in this way? Despite their deceptively simple appearance, these questions raise issues that go to the very heart of interpretation itself. On what basis, for example, can we say that an interpretation is permissible in a certain context? Do the provisions of the Vienna Convention on the Law of Treaties (VCLT) constrain the choice of interpretive methods, and do they provide a framework within which interpretation can – or must – be evaluated? Are there other frameworks for evaluation that more accurately describe when and why a particular interpretation will be accepted by its addressees and others within the legal regime? Only after adequately addressing these questions will it be possible to properly examine the use of domestic law by international courts and tribunals. This thesis is hence not a doctrinal exegesis of the place of domestic law within the Vienna Convention articles, nor does it provide an exhaustive typology of the uses of domestic law by international courts. Rather, it examines the use of domestic law in order to challenge the conventional views regarding the centrality of the Vienna Convention provisions to interpretation, whilst also providing a fresh perspective on the interaction between international and domestic law. It is only when we break free from the ‘conceptual straightjacket’ of Article 31 that we can truly understand whether domestic law has a place in the interpretation of international law.
On July 17, 1998, the world community voted on the Rome Statute for the International Criminal Court (ICC,) which, if ratified by 60 countries, would establish for the first time in history, a permanent international criminal tribunal. The outcome was an overwhelmingly favorable vote, with 120 countries voting in favor, 21 abstentions, and 7 countries, including the United States, against. The idea of an international criminal court appeared to be in the making.
Straipsnyje, skirtame tarptautinės baudžiamosios išimtinės ir konkuruojančios pirminės jurisdikcijos analizei, aptariami praktiniai jų įtvirtinimo pavyzdžiai, nagrinėjamos nustatymo ir veikimo problemos.
The publication deals with exclusive and concurrent primary international criminal jurisdictions. International experience in determining exclusive and concurrent primary jurisdiction also their practical application is analysed.
Given the spread terror and the abuses perpetrated in the Balkan region, many victims and witnesses of atrocities were deterred from testifying. The International Criminal Tribunal for the former Yugoslavia (ICTY or Tribunal) facilitated the appearance of witnesses and protected them in case of intimidation including by taking measures against those who would violate the confidentiality of the proceedings. This article aims to introduce some of the witness protective measures before the Tribunal, and particularly threats and risks they have faced in the context of the cases dealt with by the Tribunal. It reflects also upon groundbreaking measures of protection decided by the Tribunal and the challenges it has faced over the last two decades. It finally discusses the impact of such challenges on the right to a fair trial and how they were addressed.
This article explores the usefulness of the Pinochet case (particularly the final judgment of the House of Lords) as precedent for domestic courts when they apply international criminal law. The first half of the article argues against the usefulness of the ‘Pinochet precedent’, identifying instances of inconsistent and sometimes incoherent reasoning in the Law Lords' treatment of international law. Close analysis of the final judgment demonstrates that the House of Lords ultimately jettisoned customary international law and fell back on UK domestic, statutory law to make its finding. The second half of the article explores the reasons behind the Law Lords' weak treatment of international law. This part of the article advances the theory that the orthodox construction of customary international law is necessarily indeterminate and explores the internal contradictions that follow when the voluntarist construction of international law is juxtaposed to the inherently nonconsensual body of criminal law. The article nonetheless argues that international law can and should be applied by domestic tribunals and suggests an approach that will facilitate a more rigorous application of international criminal law.
Modern armed conflict has changed the way in which we understand the fighting of wars and the breakdown of diplomatic discourse. The Rome Statute, which was created to enforce the provisions of the law of war and international criminal law on a complementary basis, already appears dated because it deals with war crimes in a very traditional manner. At the same time, the Rome Statute has introduced a number of new ideas and new approaches. One such is the area of defences, which are now codified by the Rome Statute. This approach, of clarification through codification, is novel as the previous international criminal tribunals and domestic war crimes tribunals have dealt with the concept of defences on an ad hoc basis, or by excluding certain defences. The provisions in the Rome Statute codify six defences in total, one of which is duress. The defence of duress has not been accepted previously as a defence for serious crimes in international law and thus makes an interesting topic for discussion, particularly at this juncture where more and more cases are being heard by the International Criminal Court. This work examines the use of the defence of duress in international law and explores the problems of the current approach to defences in general, and duress in particular, in the Rome Statute.
The human suffering caused by the political ideology of apartheid in South Africa during the Apartheid era (1948-1994) prompted worldwide condemnation and a variety of diplomatic and legal responses. Amongst these responses was the attempt to have apartheid recognised both as a crime against humanity in the 1973 Apartheid Convention as well as a war crime in Article 85(4) (c) of Additional Protocol I. This article examin'es the origins, nature and current status of the practices of apartheid as a war crime and its possible application to the Israeli-Palestinian conflict.
All nations are linked to each other by a mutual connection and their cultures make mutual heritage; nonetheless, this elegant combination will separate in a moment. Millions children women, and men are sacrificed for unimaginable disasters that human spirit has stunned suddenly during this century. In spite of obstacles facing with constituting international system based on justice, humans’ fundamental rights were mentioned greatly during the World War I and II. Therefore, great determination was made to accomplish international security and peace in light of legal laws. Making United Nations, publishing human rights declaration, assigning convections such as preventing punishment of genocide and Geneva fourth conventions 1949 as complementation regulations and war rights indicate serious determination to shape international law system.
The human suffering caused by the political ideology of apartheid in South Africa during the Apartheid era (1948–1994) prompted worldwide condemnation and a variety of diplomatic and legal responses. Amongst these responses was the attempt to have apartheid recognised both as a crime against humanity in the 1973 Apartheid Convention as well as a war crime in Article 85(4)(c) of Additional Protocol I. This article examines the origins, nature and current status of the practices of apartheid as a war crime and its possible application to the Israeli-Palestinian conflict.
This chapter shows an outline of the process in which the accusation model before the ICC was created as the result of a discussion between representatives of the continental and the common law systems. This discussion was aimed at finding how to build a criminal procedure model that would meet the major objectives set by the ICC, taking advantage of the experiences of various legal systems in order to prevent the impunity of perpetrators of the most severe crimes of international significance, simultaneously ensuring compensation for victims of crimes and a fair trial for the accused. This discussion started with the creation of the first international criminal tribunals and the adoption of the first set of procedural rules for the operation of international criminal (military) tribunals: in Nuremberg and Tokyo, and continued during the operation of the ad hoc tribunals. The finally adopted accusation model before the ICC is presented by using a set of basic components that were selected on the basis of the fact that they cover the framework of the entire course of proceedings before the ICC, and they are regulated in both the common law and the continental law systems in a manner that is both distinct and different. They were also selected in a way that demonstrates to the fullest extent why certain solutions are consistent with the common law approach while others are based on the continental tradition.
The prosecutor’s impact on the outcome of the proceedings is most visible when he has the power to enter into an agreement with the defendant, on the basis of which in exchange for a specific conduct of the defendant (usually pleading guilty), the outcome of the proceedings becomes more favourable for him compared to the one that could have been expected otherwise. The power to terminate proceedings in a consensual way can be regarded as the prosecutor’s impact on the intensity of criminal prosecution and on the severity of the penal response. The key issue here is finding what significant concessions the prosecutor may offer to the defendant. Taking into consideration the functions of international criminal tribunals and the role they are intended to play, as well as the type of offences falling under their jurisdiction, we have to ask a question: is “bargaining over criminal responsibility” the right way to proceed? As we will see, the model of accusation before the ICC does not provide for an option for a consensual termination of proceedings pursuant to an agreement concluded between the ICC Prosecutor and the defendant, nor it envisages any basis for the guilty plea to have procedural effects such as elimination of a trial or reduction of a sentence.
In this chapter, we discuss the trajectory of the Yugoslavia Tribunal, not in terms of its legal output or even its political context, but primarily in terms of the perceptions and expectations people within or close to it, as well as academic observers, have had of it. We aim to describe what, according to different observers and participants, it was supposed to produce in terms of socio-political outcomes.
Due to its “ex novo” character and the lack of a definition provided by a treaty, crimes against humanity have been evolutionarily defined by different international norms and by the jurisdictional activity of the International criminal tribunals that have been established throughout recent history up until the creation of the International Criminal Court. Thus, both positive and customary International criminal law have represented a competent judicial cooperative way to face these acts, first and foremost, by developing its gradual conceptualization and final codification and, secondly, through enabling the prosecution and the punishment of those responsible for these crimes. Accordingly, the evolution of the crimes against humanity’s definition is an outstanding legal element, which has contributed to the further consolidation of international criminal law.
The International Criminal Tribunal for Rwanda (ICTR) was established for the prosecution of persons responsible for genocide and other serious violations of international humanitarian law committed in the territory of Rwanda between 1 January 1994 and 31 December 1994. It has had under its mandate the prosecution of Rwandan citizens responsible for genocide and other such violations of international law committed in the territory of neighbouring States during the same period. Since its creation, the ICTR has come a long way from its humble beginnings and has demonstrated the application of international criminal justice and the willingness of the international community to subject the perpetrators of genocide, war crimes, crimes against humanity, etc. to be accountable to their actions. However, it has also been recognized that the ICTR had serious failings which lead many commentators to be skeptical of the role of the court in addressing the concerns of victims of the Rwandan genocide who questioned the efficacy of international criminal justice in provide a swift delivery of justice. This paper attempts to provide a comprehensive review of the truth-telling/truth-seeking mechanisms, as forming part of the practical solutions to the unique Rwandan experience, as not distinct from the work of the ICTR but as a complementary process, accompanying and reinforcing the decisions of the Court. The author argues that restorative justice, as forming part of the wider concept of international criminal justice, should be at the heart of solving humanitarian crises of such a scale and scope as that of the Rwandan genocide. Restorative justice initiatives and processes implemented at grass-root level, and engaging the community as a whole, provide a holistic approach in leading to long-term peace processes.
The Statutes of the ad hoc Tribunals grant prosecutorial staff functional immunity, which aims to protect them against undue interference by states. Defence counsel, however, is not mentioned. As a result, it is unclear if counsel enjoy any such protection, and if so, what shape or form this may take. While the ad hoc Tribunals’ Statutes are silent on this matter, the arrests of defence counsel in Croatia and Rwanda have forced the ICTY and ICTR to address this omission, which has generated a body of case law that will provide the starting point for this article. Th e different decisions can be classified into three distinct approaches, which will accordingly be scrutinized. This article will advocate a principled approach to defence counsel immunity, consisting of functional and personal immunity, as well as a principled approach to the waiver thereof. This will both ensure the necessary protection of an effective defence, while preventing these immunity arrangements to result in impunity.
This paper argues that the ICC’s jurisdiction over war crimes in internal armed conflicts does not pose real difficulty for China if it wishes to join the ICC. Although the Taiwan issue is potentially the most fatal conflict between China and the ICC, the Chinese government is being over-cautious on the Taiwan issue vis-à-vis possible reaches by the ICC for war crimes purposes. This paper also briefly analyzes China’s other four major official reasons for not joining the ICC and forwards many positive reasons for China to join the ICC. What really explains China’s current reluctance to join the ICC is the political reluctance of a rising power, who still confronts thorny domestic issues that are susceptible to mass violence, to be fettered by yet another multilateral restrictive mechanism.
Why do states create enforceable international human rights norms that empower third parties to prevent and sanction domestic human rights abuses? Recent theories suggest that international institutions are shaped not only by power and interests but also by the content of arguments during intensive communication and argumentation processes. Moving beyond the simple notion that “communication matters,” I argue that states are likely to be persuaded by arguments that draw on widespread taken-for-granted norms, in particular, prohibitions on bodily harm, the importance of precedent in decision making, and the link between cooperation and progress. This model extends previous theories by specifying mechanisms and scope conditions for international change through persuasion. I illustrate the argument by examining the convention against torture, a costly international institution that allows domestic courts to prosecute crimes that occur in the territory of other states (universal jurisdiction). Because of its enforcement mechanisms, the torture convention poses a difficult case for theories explaining international institutions. If persuasion models can explain even costly institutions, they should be more widely considered as explanations for all kinds of international institutions.
Images of destruction are often incomprehensible. Describing theaftermath of ethnic violence in Rwanda in the spring of 1994, onereporter wrote,Blood flowed down the aisles of churches where manysought refuge; five priests and twelve women hiding out in a Jesuitcenter were slaughtered.A Red Cross ambulance was stopped at acheck-point, the six wounded patients dragged out and bayoneted todeath. Toddlers lay sliced in half, and mothers with babies strapped totheir backs sprawled dead on the streets of Kigali. The fighting washand to hand, intimate and unspeakable, a kind of bloodlust that leftthose who managed to escape it hollow-eyed and mute.
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