Judicial Definition of Torture as a Paradigm of Cross-fertilisation: Combining Harmonisation and Expansion

2015 ◽  
Vol 84 (3) ◽  
pp. 456-481 ◽  
Author(s):  
Elena Maculan
Keyword(s):  
Ad Hoc ◽  
International Criminal ◽  
Case Law ◽  
Judicial Interpretation ◽  
International Criminal Tribunals ◽  
European Court ◽  
External Sources ◽  
The One ◽  
Definition Of

This article analyses how the ad hoc International Criminal Tribunals have implemented European Court of Human Rights case law with regard to the definition of torture as a paradigm of the phenomenon of cross-fertilisation. Reliance on European jurisprudence has fostered a twofold evolution in the concept of torture. This may be described, on the one hand, in terms of overcoming the fragmented normative framework towards harmonisation of the definition of the offence. On the other hand, it has also caused a significant and somewhat problematic broadening of its scope. In addition, the case study offers some insights as to the method applied by Courts in the selection and interpretation of external sources, as well as to some possible misuses of these references. The judicial interpretation of torture provides therefore some relevant suggestions that could both enhance the potentialities of cross-fertilisation and overcome its dangers.

Contemporary International Tribunals

2017 ◽  
Author(s):  
Antonio Augusto Cançado Trindade Trindade
Keyword(s):  
Ad Hoc ◽  
International Criminal ◽  
Case Law ◽  
Nuclear Disarmament ◽  
International Human Rights ◽  
International Criminal Tribunals ◽  
The Icj ◽  
The Common ◽  
International Human ◽  
International Tribunals

In the course of 2016, international human rights tribunals (ECtHR, IACtHR and ACtHPR) kept on making cross-references to each other’s case-law, as well as to that of other international tribunals. The same has taken place on the part of international criminal tribunals (ICC and ICTFY), at a time of special attention to the preservation of the legacy of the ad hoc tribunals (ICTFY and ICTR). One could have expected the same from the ICJ, as to the case-law of other international tribunals, in its recent decisions in the cases concerning the Obligation of Nuclear Disarmament (2016), keeping in mind the common mission (of realization of justice) of contemporary international tribunals from an essentially humanist outlook.

Structure, Functions and Initial Achievements of the Mechanism for International Criminal Tribunals (mict)

2015 ◽  
Vol 15 (3) ◽  
pp. 544-564 ◽  
Author(s):  
Johann Soufi ◽  
Sophie Maurice
Keyword(s):  
United Nations ◽  
Ad Hoc ◽  
International Criminal ◽  
Case Law ◽  
Recent Case ◽  
Preliminary Review ◽  
International Criminal Tribunals ◽  
Residual Functions ◽  
Completion Process ◽  
Key Features

This article provides a preliminary review of the key features and the achievements of the United Nations Mechanism for International Criminal Tribunals (mict) so far. The article first addresses the completion process of the ad hoc Tribunals that led to the establishment of the mict, before providing a detailed overview of the structure and main functions of this new jurisdiction. The article further includes an analysis of the recent case law of the mict, which will be particularly useful in understanding contemporaneous issues surrounding residual functions of international criminal jurisdictions.

Part 2 Attributing Criminal Responsibility, 8 Superior Responsibility

2012 ◽  
Author(s):  
van Sliedregt Elies
Keyword(s):  
Ad Hoc ◽  
International Criminal ◽  
Criminal Responsibility ◽  
Case Law ◽  
Second World War ◽  
Criminal Court ◽  
Military Leaders ◽  
International Criminal Tribunals ◽  
Superior Responsibility ◽  
Second World

The concept of superior responsibility has been developed and critically discussed since the Second World War. It owes much of its recent development to the ad hoc tribunals that have relied on the concept to try military and non-military leaders for crimes committed by subordinates. The International Criminal Court (ICC) has drawn from this jurisprudence and developed it further, as evidenced by Article 28 of its Statute. Superior or command responsibility is the primary mechanism through which superiors can be held criminally responsible for failing to prevent or punish crimes committed by subordinates. This chapter describes the present day scope and meaning of command responsibility, which means discussing mainly International Criminal Tribunals for the case law of the Former Yugoslavia, to date the main source of case law on superior responsibility. It discusses superior responsibility through the prism of its nature, which is still ambiguous. This is problematic since it is the nature of the concept that determines its outer limits; limits that have expanded considerably over the years.

What We Talk About When We Talk About Early Release in International Criminal Law: The Sui Generis Nature of the Reduction of Sentence Under the Rome Statute

2021 ◽  
pp. 1-29
Author(s):  
Cristina Fernández-Pacheco Estrada
Keyword(s):  
Criminal Law ◽  
Rome Statute ◽  
Ad Hoc ◽  
International Criminal ◽  
Case Law ◽  
Criminal Court ◽  
International Criminal Law ◽  
Early Release ◽  
International Criminal Tribunals ◽  
The Many

Abstract Early release has been regularly granted by the ad hoc tribunals for over 20 years. However, it could be argued that some issues still remain contentious. In fact, in May 2020, the Practice Direction ruling early release in the Mechanism of the International Criminal Tribunals was amended. This was intended to clarify key matters, such as the time needed to be served before early release, the possibility of imposing conditions upon those released, and the unappealable character of the resulting decision. At a glance, it could be argued that the International Criminal Court is better equipped to confront the many challenges posed by early release. This is owing to its detailed regulation, which may consequently lead to a more reasoned and solid case law. After comparatively examining ten features key to the application of early release, however, this paper argues that the ultimate problem lies within the nature generally conferred to early release in the Rome Statute.

Commentary: The Assignment of Defence Counsel Before the International Criminal Tribunal for Rwanda

1999 ◽  
Vol 12 (4) ◽  
pp. 957-968 ◽  
Author(s):  
Michaïl Wladimiroff
Keyword(s):  
Free Choice ◽  
Ad Hoc ◽  
International Criminal ◽  
International Criminal Tribunal ◽  
Case Law ◽  
Legal Assistance ◽  
Proper Understanding ◽  
International Criminal Tribunals ◽  
Defence Counsel ◽  
The Right

In light of serious problems with the assignment of counsel to defendants before the ICTR, this article examines the freedom of choice of assigned defence counsel before both ad hoc International Criminal Tribunals. International legal instruments guarantee free legal assistance for indigent defendants but do not recognize an unrestricted free choice of such counsel. International case law, however, recognizes that an effective defence can hardly arise from a client-counsel relation that is not based on trust and confidence. Trust and confidence are therefore decisive for a proper understanding of the right to have free legal assistance. Unlike the practice of the ICTY of recognizing the importance of these factors, the Registrar of the ICTR seems to give more weight to geographical distribution of lawyers and other discriminating factors. The Appeals Chamber of the ICTR dealt with this policy in the Akayesu case and overturned the decision of the Registry to refuse the counsel of the defendant's own choosing.

Prosecutor v.Gacumbitsi: The New Definition for Prosecuting Rape Under International Law

2008 ◽  
Vol 8 (1-2) ◽  
pp. 55-85 ◽  
Author(s):  
Alison Cole
Keyword(s):  
Ad Hoc ◽  
International Criminal ◽  
International Criminal Tribunal ◽  
Case Law ◽  
Trial Chamber ◽  
International Criminal Law ◽  
Linkage Evidence ◽  
Apparent Contradiction ◽  
Definition Of

AbstractThe Gacumbitsi judgement of the Appeals Chamber of the International Criminal Tribunal for Rwanda is the first appellate case to address the apparent contradiction in the prior jurisprudence of the ad hoc Tribunals on the definition of rape. The Trial Chamber in the Akayesu judgement defined rape as a physical invasion of a sexual nature under coercive circumstances, whereas the later Appeals Chamber judgment of Kunarac introduced the requirement of consent. As well as addressing the role of consent in defining and proving rape at trial, the Appeals Chamber in Gacumbitsi also considered appeals of fact on specific allegations of rape, providing guidance on establishing crime base and linkage evidence to hold superiors responsible for rape under individual and command responsibility theory. After setting out the developments in the case law on the definition of rape, the author considers the contribution of the Gacumbitsi judgement, and argues that the Akayesu approach is most consistent with the framework of international criminal law.

The Settlement of Disputes Concerning States Arising From the Application of the Statute of the International Criminal Court: Balancing Sovereignty and the Need for an Effective and Independent ICC

2007 ◽  
Vol 7 (1) ◽  
pp. 1-43
Author(s):  
Juan Carlos Ochoa S.
Keyword(s):  
International Law ◽  
International Criminal Court ◽  
Dispute Settlement ◽  
Ad Hoc ◽  
International Criminal ◽  
Case Law ◽  
Criminal Court ◽  
International Criminal Tribunals ◽  
Settlement Of Disputes ◽  
The Relationship

AbstractThe tension between State sovereignty and the need of international criminal tribunals to have sufficient powers for functioning effectively and independently permeates the provisions on the settlement of disputes contained within the ICC Statute. In contrast to the Statutes and the case-law of the ad hoc international criminal tribunals, the ICC Statute gives considerable weight to States Party's sovereignty. In particular, the power of the ICC to settle any dispute concerning its judicial functions under Article 119, paragraph 1, of its Statute is weakened in the area of States Party's cooperation where the provisions of Part 9 of the Statute of that court, in addition to grant those States several possibilities for denying requests for cooperation, remain to a large extent ambiguous as to whether the ICC can scrutinise the grounds for such denials. Yet, it is submitted that the ICC Statute as a whole provides the ICC with sufficient bases to assert such a power. This contribution also casts some light on the relationship between the ICC and States non-party to its Statute from the perspective of the rules on dispute settlement laid down in that international instrument and general international law.

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