scholarly journals Philosophy of Law and International Criminal Law: Between Peace and Morality

2014 ◽  
Vol 14 (4-5) ◽  
pp. 738-767 ◽  
Author(s):  
Giorgio Bongiovanni ◽  
Giovanni Sartor ◽  
Chiara Valentini
Keyword(s):  
Criminal Law ◽  
Transitional Justice ◽  
Ad Hoc ◽  
International Criminal ◽  
Criminal Court ◽  
International Criminal Law ◽  
Legal Foundation ◽  
Hans Kelsen ◽  
Legal Concepts ◽  
Second World

The legal philosophy of the 20th century has contributed to the development of international criminal law by rethinking fundamental legal concepts and theories concerning the nature of international law, its relation with national laws, the connection between the law and the State, and the very idea of responsibility. This was achieved, in the first place, through the reflection of Hans Kelsen, who put forward the idea of a system of enforceable criminal norms at the international level, directed at individuals and having a positive legal foundation. In the years immediately following the Second World War, a number of legal theorists and, in particular, Gustav Radbruch, argued in favour of a necessary connection between law and morality, on whose basis it could be claimed that the worst atrocities were punishable even when allowed by state norms, and even in the absence of positive international norms. In the last decade, the practice of international criminal law, through ad hoc tribunals and the International Criminal Court, has stimulated theoretical reflections on a variety of further fundamental issues, like impartiality, judicial truth, justification of punishment, side-effects of prosecution and transitional justice.

scholarly journals The Legacy of the ICTY and ICTR in China

AJIL Unbound ◽  
2016 ◽  
Vol 110 ◽  
pp. 245-250
Author(s):  
Bing Bing Jia
Keyword(s):  
Criminal Law ◽  
International Criminal Court ◽  
Rome Statute ◽  
Ad Hoc ◽  
International Criminal ◽  
International Criminal Tribunal ◽  
Criminal Court ◽  
Decision Makers ◽  
International Criminal Law ◽  
International Tribunal

Legacy is a matter that may become topical when its creator finally stops producing. Normally, the silent years would be many before the thought of legacy enters into open, formal discourse among lawyers and decision-makers. This comment treats the meaning of the word as relative to the circumstances in which it is invoked. The more closely it is used in relation to the present, the more distant it drifts from its literal meaning, to the extent that it denotes what the word “impact” signifies. This essay questions whether the word “legacy” is apt in describing the footprint of the work of the two ad hoctribunals in China, where its influence has, as a matter of fact, been waning ever since the adoption of the Rome Statute of the International Criminal Court in 1998 (“Rome Statute” ). The Chinese example suggests that the work of the tribunals is (at least so far) no more significant to international criminal law than the illustrious Nuremberg and Tokyo Trials of the 1940s. The most major impact (a more apposite term than legacy) of the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Tribunal for Rwanda (ICTR) for China may be that China’s policy with regard to the tribunals, manifested mostly in the United Nations, has determined its approach to the International Criminal Court (“ICC” ). For that, the work of the tribunals could be considered as having left China something in the nature of an indirect legacy.

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.

Changing the Paradigm of International Criminal Law: Considering the Work of the United Nations War Crimes Commission of 1943–1948

2013 ◽  
Vol 15 (2) ◽  
pp. 203-223 ◽  
Author(s):  
Dan Plesch ◽  
Shanti Sattler
Keyword(s):  
World War Ii ◽  
United Nations ◽  
Criminal Law ◽  
Ad Hoc ◽  
International Criminal ◽  
War Crimes ◽  
Criminal Court ◽  
International Criminal Law ◽  
Criminal Trials ◽  
The United Nations

Abstract More than 2,000 international criminal trials were conducted at the end of World War II in addition to those held by the International Military Tribunals (IMTs) at Nuremburg and Tokyo. Fifteen national tribunals conducted these trials in conjunction with an international war crimes commission established by these same states in October 1943 under the name, The United Nations Commission for the Investigation of War Crimes, that soon became the United Nations War Crimes Commission (UNWCC). The extensive work of the UNWCC and these tribunals serves as a source of customary international criminal law that relates directly to the current work of the International Criminal Court and the ad hoc tribunals in operation since the 1990s.

scholarly journals Prosecutor v. Ayyash et al. (Special Trib. Leb.)

2021 ◽  
pp. 1-91
Author(s):  
Michael Lysander Fremuth
Keyword(s):  
World War Ii ◽  
Criminal Law ◽  
International Criminal Court ◽  
Ad Hoc ◽  
International Criminal ◽  
Criminal Court ◽  
International Criminal Law ◽  
World War ◽  
International Crimes ◽  
International Character

The establishment of the International Criminal Court (ICC) in 1998 constitutes a landmark in the development of International Criminal Law (ICL), which gained its first momentum after World War II through the foundation of International Military Tribunals in Nuremberg and Tokyo. ICL is, however, not confined to these most prominent courts or their statutes providing for definitions of international crimes under their respective jurisdiction; rather, ad hoc international, or internationalized and hybrid special tribunals and criminal chambers also contribute to the development and shape of ICL and reflect its diverse legal and institutional basis. Perceived as another tribunal of “international character,” on August 18, 2020, the Special Tribunal for Lebanon (STL) pronounced its judgment on the merits in the Ayyash case. The long-awaited verdict raises the question of the Tribunal's contribution to the further evolution of ICL.

Witness Proofing in International Criminal Law: Introduction to a Debate

2008 ◽  
Vol 21 (3) ◽  
pp. 681-681
Author(s):  
ELIES VAN SLIEDREGT
Keyword(s):  
International Law ◽  
Criminal Law ◽  
Ad Hoc ◽  
International Criminal ◽  
International Criminal Tribunal ◽  
Trial Chamber ◽  
Criminal Court ◽  
International Criminal Law ◽  
Rules Of Procedure

The editorial board of the Leiden Journal of International Law is pleased to announce a debate on a very important but underexposed topic in international criminal law: witness proofing. Witness proofing is an accepted and well-established practice at the International Criminal Tribunal for the former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR), and the Special Court for Sierra Leone (SCSL). It entails setting up a meeting between a party to the proceedings and a witness, usually shortly before the witness is to testify in court, the purpose of which is to prepare and familiarize the witness with courtroom procedure and to review the witness's evidence. Recently a trial chamber of the International Criminal Court (ICC) prohibited witness proofing. On 30 November 2007, Trial Chamber I held in the Lubanga case that the possibility of witness proofing is not expressly provided for in the ICC Statute and its Rules of Procedure and Evidence, and that no general principle exists in national or international criminal law that would require the ICC to adhere to such a practice. Moreover, and this is the most interesting argument, the trial chamber held that the ICC Statute ‘moves away from the procedural regime of the ad hoc tribunals’ and that as a result witness proofing is not easily transferable to the ICC.

scholarly journals International criminal judiciary as a means to keep and protect peace and international security

2005 ◽  
Vol 57 (1-2) ◽  
pp. 31-57
Author(s):  
Dragan Jovasevic
Keyword(s):  
Criminal Law ◽  
Ad Hoc ◽  
International Criminal ◽  
Criminal Court ◽  
International Criminal Law ◽  
General Notion ◽  
Narrow Sense ◽  
Military Tribunal ◽  
The Law ◽  
Theory Of Law

After a long historical development, the second half of the 20th century has inaugurated the new, latest branch of the punitive law - international criminal law. By its legal nature and characteristics it is somewhere between the national criminal law and international public law, maintaining its peculiarity and independence. The basic and most important notion and institute of this branch of law is certainly the international criminal act. In the theory of law (domestic and foreign), there are several views on the notion and contents of the international criminal act. However, it can be concluded that this notion implies a socially dangerous, illegal act committed by the perpetrator and defined as a criminal act whose perpetrator is to be punished as prescribed by the law. Such a defined notion of the international criminal act includes its basic elements, and these are as follows: 1) the act of a man (including the act of an adult person that can be committed in three forms: acting, non-acting, failure to provide proper supervision, effect and casualty; 2) social danger; 3) unlawfulness; 4) definition of an act by rules, and 5) guilt of the perpetrator. There are two kinds of international criminal acts: international criminal acts in a narrow sense and international criminal acts in a broad sense. The most significant are certainly the international criminal acts in a narrow sense that are directed towards violation or endangering of the universal, general civilisation values - international law and humanity - what is actually the subject of protection from these criminal acts. Apart from the international criminal act, the theory of law also includes a foreign criminal act (any criminal act with a foreign element). By all this, these two notions coincide largely, but are also considerably different from each other. Apart from the general notion of the international criminal act, the theory of law also includes a special being or a special notion of the international criminal act by whose characteristics and specific forms and shapes of manifestation some international criminal acts or responsibility of their perpetrators actually differ from each other. As a matter of fact, all international legal documents in this field (and then national criminal legislation as well) deal with the whole system of various incriminations punished by various kinds and sorts of penalties (as basic sorts of criminal sanctions). The following documents deal with some international criminal acts in their specific forms and shapes of manifestation: The Statute of the International Military Tribunal (that served to reach the Nuremberg and then the Tokyo verdicts), the Law No. 10 of the Control Council for Germany, the Statute of the Hague Tribunal for the Former Yugoslavia as well as the statutes of some other ad hoc tribunals such as: Tribunals for Rwanda, Eastern Timor and Sierra Leone, then the Statute of the Iraqi Special Tribunal and finally the Permanent International Criminal Court Statute (the so-called Rome Statute).

15. International criminal law

2021 ◽  
pp. 296-316
Author(s):  
Anders Henriksen
Keyword(s):  
International Law ◽  
Criminal Law ◽  
International Criminal ◽  
Criminal Court ◽  
International Criminal Law ◽  
Criminal Prosecution ◽  
Criminal Courts ◽  
International Crimes ◽  
Recent Addition ◽  
Second World

This chapter looks at the purposes and principles of international criminal law. International criminal law seeks to ensure that perpetrators of certain heinous acts are criminally liable for their acts, either before national or international criminal courts or tribunals. It is a fairly recent addition to international law and it was not until after the end of the Second World War that it became accepted that international law authorizes the criminal prosecution of individual perpetrators of serious offences. The chapter begins by discussing the most important sources of international criminal law. It then examines the prosecution of international crimes before international criminal courts, including the conditions for prosecuting suspected international criminals before the International Criminal Court. It also discusses the national prosecution of international crimes and the obligation found in a number of conventions to criminalize and prosecute certain conduct.

15. International criminal law

2017 ◽  
Author(s):  
Anders Henriksen
Keyword(s):  
International Law ◽  
Criminal Law ◽  
International Criminal ◽  
Criminal Court ◽  
International Criminal Law ◽  
Criminal Prosecution ◽  
Criminal Courts ◽  
International Crimes ◽  
Recent Addition ◽  
Second World

This chapter looks at the purposes and principles of international criminal law. International criminal law seeks to ensure that perpetrators of certain heinous acts are criminally liable for their act, either before national or international criminal courts or tribunals. It is a fairly recent addition to international law and it was not until after the end of the Second World War that it became accepted that international law authorizes the criminal prosecution of individual perpetrators of serious offences. The chapter begins by discussing the most important sources of international criminal law. It then examines the prosecution of international crimes before international criminal courts, including the conditions for prosecuting suspected international criminals before the International Criminal Court. It also discusses the national prosecution of international crimes and the obligation found in a number of conventions to criminalize and prosecute certain conduct.

Ch.One Foundations

2020 ◽  
Author(s):  
Werle Gerhard ◽  
Jeßberger Florian
Keyword(s):  
Criminal Law ◽  
Transitional Justice ◽  
International Criminal ◽  
Criminal Court ◽  
International Criminal Law ◽  
Peace Treaty ◽  
International Legal Order ◽  
History Of ◽  
The Relationship

This chapter sets down the legal and historical foundations of international criminal law. It begins with a brief overview of the history of international criminal law, beginning with the 1919 Versailles Peace Treaty and ending with the developments after the creation of the International Criminal Court (ICC) Statute. From there, the chapter discusses the concepts, aim, and legitimacy of international criminal law before turning to the role of international criminal law within the international legal order. Afterward, the chapter turns to the sources and interpretation of international criminal law as well as universal jurisdiction, the duty to prosecute, and transitional justice. Next, the chapter considers the relationship between international and domestic courts as well as the prosecution of international crimes under international law by international and ‘internationalised’ courts. Finally, this chapter closes with a discussion on international criminal law in practice.

The Malabo Protocol, the ICC, and the Idea of ‘Regional Complementarity’

2019 ◽  
Author(s):  
Sarah Nimigan
Keyword(s):  
Criminal Law ◽  
Rome Statute ◽  
Ad Hoc ◽  
International Criminal ◽  
Criminal Court ◽  
International Criminal Law ◽  
Judicial Interpretation ◽  
Ongoing Development ◽  
Principle Of Complementarity

Abstract The African Union (AU) has taken steps to regionalize international criminal law through the expansion of the African Court of Justice and Human Rights (ACJHR) vis-à-vis the Malabo Protocol. The principle of complementarity is a cornerstone of the Rome Statute of the International Criminal Court (ICC). The Rome Statute crystallizes a complementary relationship between the ICC and domestic legal systems under Article 17 but makes no mention of regional or ad hoc jurisdictions. Prospects for including regional jurisdictions within the principle of complementarity are contingent upon a positive judicial interpretation of the principle and clearly established obligations at each level. It will necessarily require funding and support by states. Such an approach will contribute to the ongoing development of a robust system of international criminal justice. In order to effectively resolve the issue of competing mandates and effective domestic implementation, a cooperative model needs to be espoused. Although hypothetical at present, the idea of ‘regional complementarity’ is one worth thinking about in the context of constructive reform at the ICC. The prospective ACJHR offers a useful framework to analyse the potential role of regional mechanisms within the international criminal law project, broadly considered.

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