Shift from Cultural Property to Cultural Heritage and its Possible Consequences for International Criminal Law

The article examines the content of terms ‘cultural property’ and ’cultural heritage’. It illustrates the continual development in the protection of cultural property that evolved into the concept of cultural heritage. The first part of the article describes differences between the two notions and explains why the term ’cultural heritage’ is more suitable for the current approach to protection of cultural expressions. The second part of the article deals with possible consequences that the conceptual shift from cultural property to cultural heritage can bring to protection under International Criminal Law. It argues that despite the wording of relevant legal documents, it does not explicitly work with the term ’cultural heritage’. The author notes that jurisprudence of international criminal tribunals has already been recognizing this concept and reflecting upon the extent of the term in some of their decisions.

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

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.

13. International criminal law

This chapter examines the fundamental concepts and notions of international criminal law, which is linked to other key areas of international law, particularly human rights, international humanitarian law, immunities, and jurisdiction. In particular, there is a focus on the concept of individual criminal responsibility under international law. The four core crimes are considered; namely, genocide, crimes against humanity, grave breaches of the 1949 Geneva Conventions, and the crime of aggression. Moreover, attention is paid to two unique forms of participation in international crimes, namely, command responsibility and joint criminal enterprise. Finally, the chapter addresses enforcement of international criminal law, particularly through international criminal tribunals, with an emphasis on the International Criminal Court (ICC).

Treatise on International Criminal Law

This second edition of Volume I of the three-volume Treatise on International Criminal Law addresses the foundations of international criminal law and the emerging general principles. It examines the history of the discipline and the concepts behind it. Starting with the development of international criminal justice, the book proceeds as follows: it attends to the sources of international criminal law, then moves to investigate the general structure of crime in international criminal law, and addresses in detail the concept and forms of individual criminal responsibility; it then turns to the subjective requirements of criminal responsibility, and defences that exclude such responsibility. International criminal justice is a flourishing field, with the birth of new international criminal tribunals and both accountability and investigative mechanisms. Case law increases rapidly, so does the ensuing substantive scholarship. This is also true for international criminal law’s foundations and general principles, treated in this volume. Thus, the previous edition has been completely revised, updated, and rewritten in some parts. The author strived to include both relevant case law and scholarly work up to March 2021.

Early Release of Prisoners Decisions

This chapter describes the author’s own practice, as Court President, on early release of prisoners serving sentences imposed by the ICTY, ICTR, or the Mechanism, one which followed the practice of his predecessors. Early releases or pardons of prisoners are often delicate and controversial in nation-States. In international criminal tribunals, the political, national, ethnic and religious context makes early releases even more difficult and contentious. Interested States, victims’ organizations, NGOs and media often vent their anger at some releases by harsh attacks against the Presidents that rendered them. In Rwanda, early releases of persons convicted by the ICTR or the Mechanism have not been welcome. In the former Yugoslavia, convicted persons who have been released have often been celebrated upon their return to their own local and national communities. These releases have, however, been criticized by other communities in the former Yugoslavia.

Trying Violations of Human Rights in International Criminal Tribunals

This chapter details the ways in which international criminal tribunals such as the ICTY have contributed to human rights law and protections. In construing the material elements of crimes under international humanitarian law, international criminal tribunals have had recourse to human rights law and jurisprudence, thereby strengthening human rights law and opening new avenues for its penal enforcement. The beginnings of these developments can be traced, first, to the drafting of crimes against humanity clauses in the Nuremberg Charter and, second, to the drafting of Common Article 3 of the Geneva Conventions. The tribunals have also made immense contributions to strengthening the proscriptions of rape as war crimes, crimes against humanity, and genocidal acts. With respect to persecution, the ICTY held that persecution is the gross or blatant denial, on discriminatory grounds, of a fundamental right, laid down in international customary or treaty law, reaching the same level of gravity as the other acts prohibited as crimes against humanity.

Moving from Nuremberg to The Hague

This chapter examines how, appalled by the glaring impunity for gross violations of international humanitarian law committed in the course of the Yugoslavia fragmentation wars in the early 1990s, the author was among those who called for the establishment of a war crimes tribunal for the former Yugoslavia. A war crimes tribunal, sought by the U.N. Security Council, would be the first since the Nuremberg and Far East trials following World War II. The chapter then looks at the inadequacy of international humanitarian and criminal law recognized as applicable to non-international armed conflicts, focusing on the case of rape. It considers the establishment of the modern international criminal tribunals at The Hague and Arusha. The chapter also studies the ICTY, the ICTR and the International Criminal Court (ICC).

Judicial Independence and Impartiality

This chapter focuses on national and international concepts of judicial independence and impartiality. As the Bologna and Milan Global Code of Judicial Ethics (2015) makes clear, judicial independence requires that Judges be independent of the legislative and executive branches of the government. Clearly, international Judges must be entirely independent of both governments and international organizations in the performance of their judicial duties. And they must be impartial and avoid any conduct which might give an appearance of partiality; they must not sit on any case where there is a reasonable suspicion or appearance of partiality, and must treat the parties equally, with no partiality or prejudice, with no fear or favor. In international criminal tribunals, this requires treating equally the prosecution and the accused. The chapter then discusses judicial selection, judicial assignments, Court Presidents and judicial bias.

The Rule of Law, the Principle of Legality and Due Process

This chapter evaluates the rule of law, the principle of legality and due process. The creation of the International Criminal Tribunal for the former Yugoslavia (ICTY) in the early 1990s marked the dawn of a new era in international law and opened the way for the founding of a host of international and hybrid criminal tribunals, including the world’s first permanent International Criminal Court (ICC). Over nearly three decades, these international criminal tribunals have not only demonstrated that just and fair trials of some of the worst crimes imaginable are possible, they have also striven to serve as an embodiment of rule of law ideals—as highly visible examples of rule of law principles put into practice. The chapter then looks at the legality principle and due process. The legality principle, as enshrined in the principal conventions on human rights, is a basic component of the rule of law and serves as a fundamental check on the ability of courts to push the progressive development of the law, no matter how much the Judges of that court might believe that certain conduct deserves punishment.