Bad Analogy

2014 ◽  
Vol 11 (2) ◽  
pp. 345-427
Author(s):  
Padraig McAuliffe
Keyword(s):  
Ad Hoc ◽  
International Criminal ◽  
Criminal Court ◽  
Burden Sharing ◽  
Policy Makers ◽  
International Crimes ◽  
Beneficial Impact ◽  
Comprehensive Comparison ◽  
Natural Response ◽  
State Of Affairs

The International Criminal Court (‘icc’) lacks the capacity to pursue accountability for all but a handful of alleged perpetrators. Scholars and policy-makers have argued that the natural response to this state of affairs is for the icc to reconstruct, enhance or develop both the ability and the willingness of the national legal system to effectively account for international crimes that lie beyond the reach of the Court, and assume the success of the ad hoc Tribunals’ Rule 11bis process (adopted as a result of their Completion Strategies) in transferring responsibility to the states concerned offers a model for so doing. However, this first comprehensive comparison of the two processes demonstrates that the institutional imperatives of Rule 11bis process ensured it would have a more beneficial impact on the domestic justice sector than the icc, whose imperatives rely far less on the domestic assumption of the responsibility to prosecute. This article traces how the ad hoc tribunals’ institutional Completion Strategy promotes different incentives to those of the icc’s institutional continuation strategy. While the latter has undermined domestic prosecutions by seeking co-operative relationships with self-referring states under burden-sharing (and indeed congratulates itself on such collaboration), the former has been more successful in catalysing domestic trials by adopting a more competitive, transactional approach to jurisdiction that was modified over time in accordance with the emerging institutional capacities of the states in question.

Imagining Justice for Syria

2020 ◽  
Author(s):  
Beth Van Schaack
Keyword(s):  
Transitional Justice ◽  
Ad Hoc ◽  
Institutional Design ◽  
International Criminal ◽  
International Community ◽  
Criminal Court ◽  
International Crimes ◽  
The Face ◽  
Justice Program ◽  
State Of Affairs

This book situates the war in Syria within the actual and imagined system of international criminal justice. It explores the legal impediments and diplomatic challenges that have led to the fatal trinity that is Syria: the massive commission of international crimes that are subject to detailed investigations and documentation but whose perpetrators have enjoyed virtually complete impunity. The book tracks a number of accountability solutions to this tragic state of affairs that are being explored within multilateral gatherings, by states, and by civil society actors, including innovations of institutional design; the reactivation of a range of domestic jurisdictional principles (including universal jurisdiction in Europe); the emergence of creative investigative and documentation techniques, technologies, and organizations; and the rejection of state consent as a precondition for the exercise of jurisdiction. Engaging both law and policy around international justice, the text offers a set of justice blueprints, within and without the International Criminal Court. It also considers the utility, propriety, and practicality of establishing an ad hoc tribunal and pursuing a transitional justice program without a genuine political transition. All told, the book attempts to capture the creative energy radiating from members of the international community intent on advancing the accountability norm in Syria even in the face of geopolitical blockages within the U.N. Security Council. In so doing, it presents the range of juridical measures—both criminal and civil—that are available to the international community to respond to the crisis, if only the political will existed.

Close to Home

2020 ◽  
Vol 18 (2) ◽  
pp. 219-242
Author(s):  
Kim Thuy Seelinger
Keyword(s):  
Sexual Violence ◽  
Ad Hoc ◽  
International Criminal ◽  
War Crimes ◽  
Criminal Court ◽  
International Crimes ◽  
National Courts ◽  
Local Justice ◽  
Forced Prostitution ◽  
Historical Antecedents

Abstract For decades, the ad hoc tribunals and the International Criminal Court have taken the presumptive spotlight in prosecuting international crimes cases, including those involving conflict-related sexual violence. However, recent progress in prosecuting conflict-related sexual violence in national courts has started to both fulfil and complicate the notion of ‘complementarity’ between these two arenas of international criminal justice. This article presents the historical antecedents and current diversity of national courts addressing conflict-related sexual violence. It first casts back to the 1940s, to the little-known efforts of the United War Crimes Commission that guided national authorities in their prosecution of wartime atrocities including rape and forced prostitution. It then focuses on three kinds of national courts addressing conflict-related sexual violence today: military tribunals, hybrid tribunals and ‘purely domestic’ specialized chambers, highlighting key case studies and different ways these courts have engaged international actors. In conclusion, the article confirms the growing importance and diversity of national courts in the prosecution of conflict-related sexual violence, identifying ways the international community can better support survivors’ access to this more local justice.

Book V International Disputes and Courts, 26 Prosecutions: The International Criminal Court and other Tribunals

2016 ◽  
Author(s):  
Wilmshurst Elizabeth
Keyword(s):  
International Criminal Court ◽  
Ad Hoc ◽  
International Criminal ◽  
Criminal Court ◽  
Former Yugoslavia ◽  
International Crimes ◽  
Set Up

This chapter concerns the International Criminal Court (ICC) and the ad hoc Tribunals for the former Yugoslavia and for Rwanda, as well as other courts with international elements. It begins with a discussion of the ICC, and then addresses more briefly the residual mechanism set up to deal with the remaining work of the two ad hoc Tribunals and finally, even more briefly, other courts with international elements. The ICC in particular was borne out of the success of the ad hoc Tribunals, although other courts with international elements have since been created. All these courts and tribunals share the characteristic that they have jurisdiction over individuals, not States, and their purpose is to investigate and prosecute for various international crimes. Of these courts and tribunals, the ICC is the only one with a substantial continuing caseload and is the only permanent international criminal court.

Victims and the International Criminal Court: Three major issues

2003 ◽  
Vol 3 (4) ◽  
pp. 345-367 ◽  
Author(s):  
Sam Garkawe
Keyword(s):  
International Criminal Court ◽  
Ad Hoc ◽  
International Criminal ◽  
International Criminal Tribunal ◽  
Criminal Court ◽  
Former Yugoslavia ◽  
Protective Measure ◽  
Legal Representation ◽  
International Crimes ◽  
International Criminal Tribunals

AbstractThe Statute of the permanent International Criminal Court (the "ICC") agreed to in Rome in 1998 contains many provisions that deal with the specific concerns and rights of victims and survivors of the international crimes that the ICC will have jurisdiction over. It consolidates the work of the two ad hoc international criminal Tribunals (the former Yugoslavia and Rwanda) in this area, but also further enhances the role and rights of victims in a number of innovative ways. These three international criminal Tribunals thus collectively represent an important step forward in the recognition of the suffering and the position of victims and survivors of international crimes. This article will examine three main issues in relation to victims and the ICC. First, after identifying the protective measures for victims allowed at the discretion of the international criminal Tribunal for the former Yugoslavia, it will focus on the most controversial measure (which the ICC can also order) - the non-disclosure to the defence of the identity of witnesses. Does this protective measure violate a defendant's right to a fair trial? The Statute of the ICC also allows, for the first time in international criminal justice, for the right of victims to obtain their own legal representation, subject to the discretion of the ICC. The second issue is how is this going to work in practice in light of the fact that international crimes normally involve hundreds, if not thousands or even tens of thousands, of victims? And finally, while the ICC Statute provides for the possibility of reparations to victims, where will the money come from, and thus what are the chances of victims actually being able to receive compensation?

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.

A “Special Court” for Sierra Leone?

2001 ◽  
Vol 50 (2) ◽  
pp. 435-446 ◽  
Author(s):  
Robert Cryer
Keyword(s):  
International Law ◽  
Sierra Leone ◽  
Ad Hoc ◽  
International Criminal ◽  
High Tide ◽  
Criminal Court ◽  
International Criminal Law ◽  
International Crimes ◽  
Military Tribunal ◽  
International Law Commission

The conflict in Sierra Leone began in 1991 and still continues. It has led to over 50,000 deaths. The fighting has been characterised by the use of child combatants and widespread mutilation of civilians by amputation. When the conflict began, it would have seemed improbable that any UN response would include a forum for the trial of international crimes. After all, even the high tide of international enforcement of international criminal law, the Nuremberg International Military Tribunal, had begun to be excised from mainstream treatments of international law.1 The possibility of a permanent international criminal court had recently been revived, and sent to the International Law Commission for consideration, but the record of the ILC with controversial projects would not have led to an expectation of quick progress.2 Yet, nearly 10 years on, the UN is now involved in setting up a fourth criminal court,3 the “Special Court” for Sierra Leone. Despite the selectivity inherent in ad hoc reactions, and the continuing opposition to the Rome Statute in some quarters, it is now difficult to deny that progress is being made towards a new form of international criminal order where the improbability of prosecution for international crimes can ne longer be presumed.

International Justice for International Crimes: An Idea whose Time Has Come

2006 ◽  
Vol 14 (4) ◽  
pp. 421-439 ◽  
Author(s):  
WILLIAM A SCHABAS
Keyword(s):  
Cold War ◽  
Due Process ◽  
Ad Hoc ◽  
International Criminal ◽  
Criminal Court ◽  
Vicarious Liability ◽  
International Crimes ◽  
Human Rights Movement ◽  
The Cold War ◽  
Recent Tendency

International criminal justice really began at Nuremberg in 1945, after an inauspicious start at Versailles in 1919. But little happened during the Cold War, and only in the 1990s, driven by a human rights movement that had refocused its energy on the rights of victims and concerns about impunity and accountability, did the efforts revive. The United Nations pioneered the activity, with three ad hoc tribunals. In 2002, a permanent institution, the International Criminal Court, began its operations. Concerns about the fairness of such proceedings have featured since the earliest days. In balance, both Nuremberg and its modern-day successors deliver acceptable judgments from a due process standpoint, although problems remain. Also troubling is an emphasis on convictions based upon paradigms that approach vicarious liability. This enhances the probability of conviction, but weakens the stigma of guilt and ultimately compromises the historical legacy. There is also a recent tendency to focus upon non-state actors, prosecuting rebels and terrorists rather than crimes of state.

International legal immunities and privileges of the Рrosecutor amicus curiae

2020 ◽  
Vol 22 (3) ◽  
pp. 55-63
Author(s):  
EKATERINA A. KOPYLOVA ◽  
Keyword(s):  
Ad Hoc ◽  
International Criminal ◽  
Legal Regulation ◽  
Criminal Court ◽  
International Treaties ◽  
Amicus Curiae ◽  
Criminal Courts ◽  
Criminal Proceedings ◽  
International Criminal Tribunals ◽  
Foreign Science

The article considers the international legal regime of immunities and privileges of amicus curiae prosecutors of international criminal courts which are intended to ensure independent and unhindered performance of their functions in prosecuting crimes against the administration of justice. Due to the lack of doctrinal research in this field, whether in the domestic or foreign science of international law, the study is characterized by scientific novelty. Its empirical basis is constituted of the provisions of international treaties governing the immunities and privileges of staff of the ad hoc international criminal tribunals and the International Criminal Court. It is noted that today the state of international legal regulation of immunities and privileges of amicus curiae prosecutors is not quite satisfactory as it contains significant gaps. Two possible approaches to determining the scope of the immunities and privileges of amicus curiae prosecutors are identified: the first based on their status and the second – on the functions they perform. Their critical analysis leads to the conclusion that the functional approach is more in line with the principle of equality of arms in international criminal proceedings. As a result of its application, the scope of the immunities and privileges of amicus curiae prosecutors coincides with the scope of the immunities and privileges granted to staff of the Offices of Prosecutors at the international criminal tribunals.

NGOs for International Justice

2018 ◽  
Author(s):  
Kjersti Lohne
Keyword(s):  
International Criminal Court ◽  
International Criminal ◽  
Criminal Court ◽  
International Justice ◽  
Relative Lack ◽  
International Crimes ◽  
Governmental Organizations ◽  
Non Governmental Organizations ◽  
The Impact ◽  
Oriented Approach

Kjersti Lohne describes the impact of non-governmental organizations at the International Criminal Court (ICC), in particular discussing the relative lack of regard for defendants’ rights, and especially highlighting the difficulties encountered by those acquitted. After the Coalition for the International Criminal Court contributed to the establishment of the ICC itself in the fight against impunity for international crimes, that Coalition has continued a victim-oriented approach, arguably at the expense of defendants’ rights. The ICC’s focus on victims, ‘truth’, and ‘memory’ may challenge the legitimacy of the Court in the longer run.

Complementing the ICC Efforts to Curb the Impunity of International Crimes in Africa

2017 ◽  
Author(s):  
Pacifique Manirakiza
Keyword(s):  
South African ◽  
International Criminal ◽  
Criminal Court ◽  
Potential Contribution ◽  
African Continent ◽  
Community Based ◽  
Academic Literature ◽  
International Crimes ◽  
Set Up ◽  
Thabo Mbeki

A matter raised consistently by eminent personalities asked to report on atrocities in Africa, such as former South African President Thabo Mbeki, is the utilization of traditional justice mechanisms known to Africans. Their use has been limited to Gacaca courts in Rwanda, set up in haste and subject to much criticism. However, there exist several types and models of traditional justice mechanisms at the African level. The contribution of these sui generis mechanisms towards accountability for heinous crimes is largely unaddressed in academic literature. This chapter intends to fill this gap by exploring their potential contribution towards accountability for heinous crimes, alongside the International Criminal Court (ICC). In short, the chapter explores how community-based judicial mechanisms and the ICC, two types of accountability mechanisms with different methodologies and approaches, can work side by side to eradicate impunity regarding, and also to prevent, mass atrocities on the African continent.

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