Punishing for Humanity

2020 ◽  
pp. 391-404
Author(s):  
Margaret M. deGuzman
Keyword(s):  
Former Yugoslavia ◽  
Foreseeable Future ◽  
International Courts ◽  
Harsh Punishment ◽  
National Courts ◽  
Global Norms

In determining sentences, the ICTY chose to develop global norms rather than adhere to, or even be strongly guided by, the sentencing norms of the former Yugoslavia. Although the ICTY Statute required the judges to consult national practices in determining sentences, they interpreted this requirement loosely, reserving to themselves a wide discretion that enabled them to identify a range of global sentencing objectives and factors to apply in pursuit of those objectives. The global norms the ICTY developed included norms rejecting harsh punishment, applying consequentialist punishment rationales, privileging gravity as the central sentencing factor, and endorsing broad judicial sentencing discretion. In developing these norms, the ICTY helped to build a foundation that other international courts, and perhaps some national courts, are likely to rely on for the foreseeable future.

Responsibility for war crimes before national courts in Croatia

2006 ◽  
Vol 88 (861) ◽  
pp. 145-168 ◽  
Author(s):  
Ivo Josipović
Keyword(s):  
European Union ◽  
International Criminal Tribunal ◽  
War Crimes ◽  
Former Yugoslavia ◽  
Ethical Standards ◽  
The European Union ◽  
National Courts ◽  
Domestic Courts ◽  
The Republic ◽  
Historical Truth

This article analyses problems with which the Republic of Croatia, as a country in transition, has to contend during war crimes proceedings. A major characteristic of the recent wars waged on the territory of the former Yugoslavia is that war crimes were committed, though on a different scale, by all parties involved, irrespective of the political and other motives that prompted them to engage in armed conflict. Political unwillingness is the principal reason why national courts, including those in the Republic of Croatia, did not prosecute war crimes in accordance with internationally acceptable standards. The international community responded by setting up the International Criminal Tribunal for the former Yugoslavia (ICTY), the main objectives of which are to establish justice, render justice to victims and determine the historical truth. Implicitly, despite political and other opposition to its work, the ICTY is helping to define legal and ethical standards appropriate for a democratic society in the countries established on the territory of the former Yugoslavia. This is particularly important for the reason that all these countries aspire to membership of the European Union. The work of the ICTY, as well as proceedings before domestic courts, is therefore an important legal, political and moral catalyst on their way towards accession to the European Union. This is fully confirmed by the example of the Republic of Croatia.

Making Complementarity a Reality

2020 ◽  
pp. 31-47
Author(s):  
Serge Brammertz
Keyword(s):  
International Criminal ◽  
International Criminal Tribunal ◽  
Essential Element ◽  
War Crimes ◽  
Former Yugoslavia ◽  
New Techniques ◽  
New Model ◽  
International Crimes ◽  
National Courts ◽  
Domestic Courts

This chapter presents a prosecutorial perspective on the International Criminal Tribunal for the former Yugoslavia’s (ICTY) legacies. It traces the evolution of the Office of the Prosecutor from a service that is grounded in primacy of jurisdiction into a more complementarity-oriented actor, in which interaction with domestic systems is an essential element to achieving justice for serious international crimes. The author argues that the support provided to national justice sectors in the countries of the former Yugoslavia is one of the most important legacies of the ICTY. The Office of the Prosecutor (OTP) started to engage with new techniques—including establishing the Transition Team—when the ICTY Completion Strategy was put into force. The OTP referred cases to national judiciaries, which improved in their capacities to process war crimes cases. The chapter concludes that the OTP’s cooperation with national courts establishes a new model of collaboration between international and domestic courts.

Knockin’ on heaven’s door: The burden of proof before international courts

2021 ◽  
Vol 11 (2) ◽  
pp. 111-133
Author(s):  
Ekaterina Diyachenko
Keyword(s):  
Burden Of Proof ◽  
The European Union ◽  
Legal Doctrine ◽  
International Courts ◽  
National Courts ◽  
Court Of Justice ◽  
European Court ◽  
Separate Object ◽  
Object Of Study ◽  
Onus Probandi

The issues of proof and determining the party upon which the corresponding burden rests are key to the administration of justice as the determination of the facts of the case is a compulsory stage prior the application of the legal norm. In the Russian legal doctrine the issue of proof has been extensively developed with regard to proceedings before national courts, but not enough in relation to the activity of international courts, except for the European court of human rights. This article explores the theoretical aspects of proof in international courts, analyses the approaches of the International Court of Justice and the Court of Justice of the European Union regarding the distribution of the burden of proof. A separate object of study is the legal findings of the Court of the Eurasian Economic Union with regard to the issue of proof. The findings of the study show that the universal rule onus probandi actori incumbit has evolved with the development of the international courts’ case law in the direction of a cooperation between the courts and the parties in the collection of evidence and the placement of the burden of proving the validity of acts, actions (failure to act) on the institutions vested with the corresponding powers.

INTEGRATION AND NATIONAL JUSTICE IN THE EURASIAN ECONOMIC UNION

2017 ◽  
pp. 0-0
Author(s):  
Александр Федорцов ◽  
Aleksandr Fedortsov
Keyword(s):  
European Union ◽  
Recent Time ◽  
Judicial System ◽  
The European Union ◽  
International Courts ◽  
National Courts ◽  
Eurasian Economic Union ◽  
Economic Union

Integration processes in Eurasia in recent time are developing rapidly, cooperation between countries is becoming more closer, including in the framework of the Eurasian Economic Union. In the article the author discloses the various aspects of the activities of the Court of the Eurasian Economic Union. Due to the fact that the Eurasian Economic Union (EEU) is only two years old, and a practice of it is not very extensive. And in this context the author draws the analogy with various international courts, including the Court of the European Union, the issues of the functioning — can the existing expertise be applied in the Eurasian Economic Union or not? The author makes a conclusion that currently there is a duality of dimensions of justice in the national courts and international judicial organ in the frame of the judicial system of the EEU, and such duality must be overcome to implement the Union’s common justice.

scholarly journals International Courts as Agents of Legal Change: Evidence from LGBT Rights in Europe

2013 ◽  
Vol 68 (1) ◽  
pp. 77-110 ◽  
Author(s):  
Laurence R. Helfer ◽  
Erik Voeten
Keyword(s):  
Policy Change ◽  
National Level ◽  
Data Set ◽  
International Courts ◽  
National Courts ◽  
Lgbt Issues ◽  
European Court ◽  
International Court ◽  
Bisexual And Transgender ◽  
The Government

AbstractDo international court judgments influence the behavior of actors other than the parties to a dispute? Are international courts agents of policy change or do their judgments merely reflect evolving social and political trends? We develop a theory that specifies the conditions under which international courts can use their interpretive discretion to have system-wide effects. We examine the theory in the context of European Court of Human Rights (ECtHR) rulings on lesbian, gay, bisexual, and transgender (LGBT) issues by creating a new data set that matches these rulings with laws in all Council of Europe (CoE) member states. We also collect data on LGBT policies unaffected by ECtHR judgments to control for the confounding effect of evolving trends in national policies. We find that ECtHR judgments against one country substantially increase the probability of national-level policy change across Europe. The marginal effects of the judgments are especially high where public acceptance of sexual minorities is low, but where national courts can rely on ECtHR precedents to invalidate domestic laws or where the government in power is not ideologically opposed to LGBT equality. We conclude by exploring the implications of our findings for other international courts.

I.Referring an indictment from the ICTY and ICTR to another court—Rule 11bis and the consequences for the law of extradition

2006 ◽  
Vol 55 (1) ◽  
pp. 219-226 ◽  
Author(s):  
Michael Bohlander
Keyword(s):  
Security Council ◽  
International Criminal ◽  
International Criminal Tribunal ◽  
Former Yugoslavia ◽  
National Courts ◽  
Post Conflict ◽  
Un Security Council ◽  
Rules Of Procedure ◽  
History Of ◽  
Court Rule

In the wake of their so-called ‘completion strategies’,1 both the International Criminal Tribunal for the Former Yugoslavia (ICTY) and for Rwanda (ICTR), creations of the UN Security Council under Chapter VII of the UN Charter, have for some time grappled with the question of how to unclog their congested dockets and dispose of those accused which are generally viewed as ‘small fry’. The fact that many of the accused have had to spend very long, some say excessively long, times in the custody of the Tribunals prior to and during trials, led the Tribunals to devise a mechanism for the transfer of cases to national jurisdictions, preferably those of the national States of the defendants, which were mostly identical to the post-conflict countries. The mechanism was an amendment of Rule 11bis of their Rules of Procedure and Evidence (RPE) which allowed the Tribunals to refer cases to the national courts under certain circumstances. It is helpful to trace the history of the Rule. For the sake of simplicity, only the ICTY2 will be looked at here, as there are no real differences in substance with regard to the ICTR as far as the latest version of the Rule3 is concerned.

How Can International Criminal Courts Have a Greater Impact on National Criminal Proceedings? Lessons from the First Two Decades of International Criminal Justice in Operation

2013 ◽  
Vol 46 (3) ◽  
pp. 431-453 ◽  
Author(s):  
Yuval Shany
Keyword(s):  
International Criminal ◽  
International Criminal Tribunal ◽  
Criminal Courts ◽  
Criminal Proceedings ◽  
International Courts ◽  
The Balkans ◽  
National Courts ◽  
Geographical Regions ◽  
Mass Atrocity ◽  
The Impact

International actors and observers have afforded greater attention in recent years to the role of national courts in bringing to justice perpetrators of international crimes. Not only are national courts typically less expensive to operate than international courts, they also enjoy at times more legitimacy in the eyes of local constituencies than their international counterparts. They can also reach deeper into society and cast a wider net than international criminal courts. Indeed, there is an increased tendency to view international criminal courts as mechanisms primarily designed to support and complement the work of national criminal procedures, and to pay closer attention to the interaction between the two sets of judicial institutions. It is against this background that the Project on Studying the Impact of International Courts in Domestic Criminal Procedures in Mass Atrocity Cases (the DOMAC project) has sought to draw lessons from the experience accumulated by the interactions that took place between national and international courts in the two decades that have passed since the establishment of the International Criminal Tribunal for the former Yugoslavia. This was done in the hope that such lessons may guide such interactions in the future. Indeed, DOMAC reports have looked into interactions relating to specific legal aspects (applicable laws, prosecution rates, sentencing policies and capacity development) and/or at specific geographical regions (for example, the Balkans, Africa, Latin America, East Timor) and provide many interesting stories of success and failure, from which valuable lessons can be learned. The purpose of this article is to offer, on the basis of the said DOMAC reports, some general observations on the impact of international courts on domestic criminal processes (in the aftermath of mass atrocity situations), and to discuss the structural deficiencies that may have led until now to sub-optimal levels of cooperation and division of labour between international and national criminal procedures. On the basis of these critical observations, a number of general recommendations for future policy planners will be considered. The article first describes some of the main impacts of international courts on domestic courts handling mass atrocity cases. It then discusses four overarching problems, which may have hampered such interactions: the lack of a comprehensive legal response to mass atrocities, inadequate allocation of resources, the absence of ultimate responsibility over the international response, and legitimacy deficits. The concluding section sketches a number of proposals based on the discussion in the two immediately preceding sections.

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