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Journal articles on the topic 'International criminal courts – Cases'
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1
Laucci, Cyril. "Juger et faire juger les auteurs de violations graves du droit international humanitaire." International Review of the Red Cross 83, no. 842 (June 2001): 407–38. http://dx.doi.org/10.1017/s1560775500105747.
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Abstract The establishment of the International Criminal Tribunals for the former Yugoslavia and for Rwanda, and the recent adoption of the Rome Statute of the International Criminal Court, are important steps towards ensuring that justice prevails. However, existing and future international criminal courts alone will never be able to try all cases of serious violations of international humanitarian law. Domestic courts have to step in and they must keep their role as the main agents for rendering justice. The rule according to which the ICC's jurisdiction is a complementary one is wise and also indispensable for guaranteeing the new court's success. The international courts should actively seek to establish cooperation agreements with national jurisdictions and facilitate the transfer of cases, in particular those of minor importance. In the authors'view the future of criminal justice lies in an invigorated domestic justice system
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MANLEY, STEWART. "Citation Practices of the International Criminal Court: The Situation in Darfur, Sudan." Leiden Journal of International Law 30, no. 4 (September 4, 2017): 1003–26. http://dx.doi.org/10.1017/s0922156517000413.
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AbstractThis article analyzes the 9,203 citations made by the International Criminal Court (ICC) in its cases involving Sudan. To date, few empirical studies have assessed the citation practices of courts and even fewer of international courts. The data is rich. It reveals, for instance, the changing nature of the Court's citations over time, the disproportionate distribution of citations among chambers, the potential impact of party pleadings on citations, and the allocation of citations to previous rulings of the Court, other international tribunals and domestic courts. The article also explores possible explanations for the patterns that emerge and assesses what the patterns may mean for the Court. Unlike most other citation analyses, the study provides the additional benefit of having categorized the citations based on their function, distinguishing for instance between citations that the Court uses to help it decide legal and factual issues, and those it does not.
3
Drumbl, Mark A. "Extracurricular International Criminal Law." International Criminal Law Review 16, no. 3 (May 27, 2016): 412–47. http://dx.doi.org/10.1163/15718123-01603005.
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This article unpacks the jurisprudential footprints of international criminal courts and tribunals in domestic civil litigation in the United States conducted under the Alien Tort Statute (ats). The ats allows victims of human rights abuses to file tort-based lawsuits for violations of the laws of nations. While diverse, citations to international cases and materials in ats adjudication cluster around three areas: (1) aiding and abetting as a mode of liability; (2) substantive legal elements of genocide and crimes against humanity; and (3) the availability of corporate liability. The limited capacity of international criminal courts and tribunals portends that domestic tort claims as avenues for redress of systematic human rights abuses will likely grow in number. The experiences of us courts of general jurisdiction as receivers of international criminal law instruct upon broader patterns of transnational legal migration and reveal an unanticipated extracurricular legacy of international criminal courts and tribunals.
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Sander, Barrie. "HISTORY ON TRIAL: HISTORICAL NARRATIVE PLURALISM WITHIN AND BEYOND INTERNATIONAL CRIMINAL COURTS." International and Comparative Law Quarterly 67, no. 3 (March 20, 2018): 547–76. http://dx.doi.org/10.1017/s0020589318000027.
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AbstractWith the resurgence of the field of international criminal justice in recent decades, expectations have increasingly been placed on international criminal courts to construct consistent and authoritative historical narratives about the mass atrocity situations that fall within their purview. Taking this expectation as its focus, this article seeks to illuminate the historical narrative pluralism that can arise both within and beyond the international criminal courtroom. Within the courtroom, two types of narrative pluralism are identified: first, inter-court narrative pluralism, which arises when different courts examine the same mass atrocity situation from different perspectives; and second, intra-court narrative pluralism, which emerges when narratives constructed within an international criminal judgment are revisited in later cases adjudicated by the same court. Beyond the courtroom, it is contended that even when international criminal courts manage to achieve inter-court and intra-court narrative consistency, in practice a range of social psychological and practical factors tend to generate a gap between the intended meaning of such narratives and their public or social meaning amongst different audiences. By illuminating the historical narrative pluralism that can arise both within and beyond the international criminal courtroom, this article calls for greater critical awareness of the constructed nature of the historical narratives rendered within international criminal judgments, as well as a sobering of the expectations that are typically placed on international criminal courts both with respect to the construction of narratives within the courtroom and their reception beyond it.
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Kucherov, I. I. "Review of the Monograph by PhD in Law D.A. Pechegin «Competitive and Investigative Models of Proceedings in the International Criminal Court»." Russian Journal of Legal Studies 4, no. 3 (September 15, 2017): 245–46. http://dx.doi.org/10.17816/rjls18332.
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Monograph by D.A. Pechegin «Competitive and investigative models of proceedings in the International Criminal Court» is devoted to the study of the model of criminal justice, as well as its implementation in the structure of adversarial and investigative principles, both internationally and nationally. The reader is presented with a comprehensive analysis of various issues in the production of criminal cases through the prism of analyzing the provisions of not only domestic and foreign legislation, but also statutory and other documents of international criminal tribunals, ad hoc courts, the European Court of Human Rights.
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ĆUJIĆ, MIODRAG. "CRIMINAL ASSOCIATION IN INTERNATIONAL CRIMINAL LAW." Kultura polisa, no. 44 (March 8, 2021): 23–35. http://dx.doi.org/10.51738/kpolisa2021.18.1r.1.02.
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The criminal association was a criminal offense of the Joint Plan and Conspiracy, or a special form of Crime against Peace, which was highlighted as such in the Nuremberg and Tokyo trials. In the recent practice of international criminal courts, this institute is used in a certain way, but its function is often subordinated to political abuses. By labeling certain political regimes as a “criminal association” by the so-called international political elites are provided with a wide margin of maneuver to justify their “humanitarian interventions” which are the consequence of a common criminal goal. From the middle of the 20th century until today, it is possible to identify violations of international law that occurred as a result of the activities of a criminal association, which continues with increased intensity. If the covert activities of real criminal associations continue, the main outcome will not be the achievement of world peace, but hegemony. In order to prevent this tendency, it is necessary to redefine the place of the Criminal Association in international criminal law, to point out the permanent cases of their actions, their subjects and the ways in which these same subjects avoid responsibility.
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Arsić, Katarina. "Criminal immunity of state officials in international law." Bezbednost, Beograd 64, no. 2 (2022): 145–59. http://dx.doi.org/10.5937/bezbednost2202145a.
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The paper analyzes the practice of the states and international courts regarding the recognition, non - recognition or withdrawal of immunity in cases which are in accordance with international criminal law and against state officials, including highlevel officials. This paper offers an analysis of the historical role of World War II in recognizing individual criminal responsibilities in international law, enabling the criminal process and prosecuting officers for violating jus cogens norms. In this sense, we should distinguish the immunity ratione personae (personal immunity) from the immunity ratione materiae (functional immunity). High state officials such as the Head of State, the Prime Minister and the Minister of Foreign Affairs have the immunity ratione personae. On the other hand, the immunity ratione materiae is enjoyed by other officials. While personal immunity derives from the function performed by high-rank officials and should ensure unhindered performance of their duties, functional immunity is the immunity of the state and should primarily protect the state, not the official, because the official acts only on behalf of the state. Based on this, the paper points out that the practice of domestic courts, the International Court of Justice and the International Criminal Court in recognizing or withdrawing immunity of state officials is inconsistent. The paper analyzes the Seventh Report on Immunity of State Officials from foreign criminal jurisdiction by the Commission on International Law and indicates the areas in which the articles of a potential document on the criminal immunity of state officials in international law should be elaborated. In addition to contradictory judgments of the International Court of Justice and the International Criminal Court, the impossibility of defining uniform rules arises because the states have different understanding and believe that the dignity of the state will be endangered if their high officials are prosecuted by courts of other states. The paper concludes that further monitoring of the work of relevant international and domestic courts is needed in order to uniform rules and produce a draft document on criminal immunity of state representatives in international law based on uniform practice.
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Safferling, Christoph, and Gurgen Petrossian*. "Universal Jurisdiction and International Crimes in German Courts – Recent Steps Towards Exercising the Principle of Complementarity after the Entry into Force of the Rome Statute." European Criminal Law Review 11, no. 2 (2021): 242–63. http://dx.doi.org/10.5771/2193-5505-2021-2-242.
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This article deals with recent developments in Germany in relation to international criminal cases. It describes how the German courts interpreted and applied the law on the cases and on the international crimes committed outside of Germany. In addition, it raises the alternative criminal prosecution of the persons who were involved in the international criminal activities abroad. Since 2015 the workload of German judiciary because of the active prosecution of international crimes was dramatically increased. Cases of international crimes are now part of everyday life for public prosecutors and courts in Germany. The number of cases has also led to the establishment of a modern jurisprudence on international criminal law. These developments are also of great interest outside of Germany, but remain largely unknown.
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Shany, Yuval. "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." Israel Law Review 46, no. 3 (September 23, 2013): 431–53. http://dx.doi.org/10.1017/s0021223713000150.
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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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Sheremetev, I. I. "Using Digital Technologies in Criminal Cases in Court: Reality and Prospects." Lex Russica, no. 5 (May 31, 2019): 117–31. http://dx.doi.org/10.17803/1729-5920.2019.150.5.117-131.
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The paper deals with topical issues related to the use of digital technologies in criminal proceedings. The author presents the directions of digitization of the court and the principles of using artificial intelligence, formulated by the bodies of the Council of Europe. The stages of the emergence of individual digital technologies first in the work of arbitration courts, and later — courts of general jurisdiction are shown. Existing and promising digital technologies are considered as the criminal case moves, after its submission in court from the Prosecutor. Considerable attention is given to the order of formation of the court for the consideration of a particular criminal case. The author analyzes the difficulties encountered in the use of an automated information system in this matter, and proposes ways to resolve them. The author considers it necessary to use e-mail to call victims, witnesses and other participants in the proceedings, for which he proposes to make appropriate changes to the current procedural legislation. The article reveals the current procedure and prospects for the use of video conferencing systems, audio and video recording of the trial in the criminal process. The author reports on the experimental development of speech recognition programs for participants in the trial. Special attention is given to the achievements in the implementation of digital technologies in the Moscow courts, implemented in the course of the international project «Support for judicial reform». In this regard, the author describes the creation of electronic copies of traditional «paper» cases in the courts of Moscow, making the proceedings more open.
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Pudovochkin, Yu E., and M. M. Babayev. "Contradictions of judicial criminal policy." Law Enforcement Review 6, no. 1 (March 24, 2022): 174–90. http://dx.doi.org/10.52468/2542-1514.2022.6(1).174-190.
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The subject of the study is the criminal policy in the context of contradictions in the functioning of the courts.The purpose of the study is to investigate, which contradictions of criminal policy are generated by a multi-level system of courts, and which mechanisms for overcoming them in order to optimize criminal policy could be found out.The methodology. In modern conditions of diversification of methodological approaches to organizing and conducting political-legal research, it is important not to discard, but to rethink and rediscover the epistemological possibilities of the methods of classical science, especially the method of dialectical analysis.The main results and scope of the study. The use of the category "dialectical contradiction" for the purpose of studying the problems of the functioning of the courts in terms of the interpretation and application of criminal law provisions opens up new possibilities in the study of criminal and judicial policy, as well as determining the prospects for its development. In the study, the law enforcement contradictions of criminal policy refer to the relations between courts of various types and levels that develop in the course of their functioning and reflect the opposite approaches of law enforcement bodies to the interpretation and application of criminal legislation. Considering the level and type of legal proceedings, these contradictions can be summarized in the following groups: (a) between national and international courts; (b) between superior courts of the national legal system; (c) between the courts of various instances of the system of courts of general jurisdiction.The contradictions between national and international courts, emerging in the field of protection of human rights and freedoms, are an objective source of development of judicial practice and policy. The resolution of these contradictions is based on the consensus of various courts and compromise. If the position of the European Court of Human Rights does not contradict the provisions of the Constitution of the Russian Federation, the state adjusts its legal practice in the direction set by the authoritative international instance by means of: (a) direct application of national legislation with due regard for the ECHR’s legal positions; (b) the application of national legislation in its constitutional interpretation by the Constitutional Court of the Russian Federation, which does not differ from the decisions and positions of the ECHR; (c) amending national legal acts in pursuance of ECHR judgments. In exceptional cases, when the position of the European Court touches upon issues of the country's constitutional identity, the contradiction between the international and national legal order is resolved by the Constitutional Court of the Russian Federation on the basis of the priority of constitutional norms.At the level of the superior national courts the contradictions are represented by the differing positions of the Constitutional Court of the Russian Federation and the Supreme Court of the Russian Federation on the assessment and interpretation of criminal law provisions. Such contradictions can be thought of as latent until they are not revealed in constitutional proceedings. The identification and resolution of these contradictions is the most important direction of legal policy in the country; it reflects the consistent solution of the aim of constitutionalization of the criminal law.At the level of the system of courts of general jurisdiction, the concept of "contradiction" can only be applied to those differing approaches of the courts to solving criminal cases that do not go beyond the rule of law. Contradictions arise only when, having correctly established the factual circumstances of the case, the courts disagree in the choice of the legal provision to be applied, although any such choice can be explained and motivated. These contradictions may or may not be related to the quality of criminal legislation. Therefore, the mechanism for their resolution includes not only law revision. It is important to use the capabilities of the judicial system itself to develop a consensual understanding of the textual content of the criminal law and the rules for its application.Conclusions. Overcoming the contradictions of the judicial criminal policy is possible only in the process of communication and dialogue between the courts of different levels on the basis of differentiation of jurisdiction, respect for authority and independence.
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Cassel, Douglass. "Commentary: Judicial Remedies for Treaty Violations in Criminal Cases: Consular Rights of Foreign Nationals in United States Death Penalty Cases." Leiden Journal of International Law 12, no. 4 (December 1999): 851–88. http://dx.doi.org/10.1017/s0922156599000448.
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Litigation over the right of detained foreign nationals to be notified of their right to seek consular assistance in death penalty cases is important to the more than 80 foreign nationals currently on death row in the United States. It also raises more general questions about the role of international law and of international courts in sensitive criminal cases before national courts. International courts and litigants may enhance the likelihood of compliance in such cases by insisting on fair and deliberate procedures, on transparent and thoroughly articulated reasoning, and on prudent shaping of remedies.
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KYRIAKAKIS, JOANNA. "Corporations before International Criminal Courts: Implications for the International Criminal Justice Project." Leiden Journal of International Law 30, no. 1 (December 13, 2016): 221–40. http://dx.doi.org/10.1017/s0922156516000650.
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AbstractThe debate over whether the International Criminal Court should have jurisdiction over corporations has persisted over the years, despite the failure of the legal persons proposals at Rome. For its part, the Special Tribunal for Lebanon determined that it has jurisdiction over corporations for the purpose of crimes against the administration of the Tribunal, albeit not for the substantive crimes over which it adjudicates. Most recently, the African Union has adopted a Protocol that, should it come into operation, would create a new international criminal law section of the African Court of Justice and Human and People's Rights with jurisdiction over corporations committing or complicit in serious crimes impacting Africa. In light of the enduring nature of the proposal that international criminal institutions should directly engage with the problem of commercial corporations implicated in atrocity, this article explores the possible implications for the international criminal justice project were its institutions empowered to address corporate defendants and prosecutors emboldened to pursue cases against them. Drawing on the expressive goals of international criminal justice and concepts of sociological legitimacy, as well as insights from Third World Approaches to International Law, the article suggests that corporate prosecutions, where appropriate, may have a redeeming effect upon the esteem in which some constituent audiences hold international criminal law, as a system of global justice. The article's thesis is then qualified by cautionary thoughts on the redemptive potential of corporate prosecutions.
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Aragonés Molina, Laura. "MISCELÁNEA: LA BUENA ADMINISTRACIÓN DE JUSTICIA EN LA JURISDICCIÓN INTERNACIONAL PENAL: EXCEPCIONES A LA APLICACIÓN ESTRICTA DE LA NORMATIVA PROCESAL EN MATERIA DE RECURSOS." Revista española de derecho internacional 73, no. 2 (June 25, 2021): 193–228. http://dx.doi.org/10.17103/redi.73.2.2021.1b.01.
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International courts and tribunals refer to the principle of good administration of justice to justify certain decisions that do not find a legal basis expressly provided neither in their statutes nor in their rules of procedure or when they interpret the procedural rules in a flexible manner. In those cases, they exercise inherent powers necessary to ensure the fulfilment of their judicial function. This principle, whose content is imprecise, has two main purposes: to safeguard the proper administration of proceedings and to guarantee the justice of the decision. In this paper we study several manifestations of this principle in the application and interpretation of the procedural provisions of revision and additional evidence in appeal. We focus on the judicial practice of the International Criminal Tribunal for the former Yugoslavia, the International Criminal Tribunal for Rwanda, and the International Residual Mechanism for Criminal Tribunals. These precedents can be extremely useful when litigating in the International Criminal Court as well as in other international courts.
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Popko, Vadym. "International criminal justice bodies: multiplicity of institutional models." Law Review of Kyiv University of Law, no. 1 (May 5, 2021): 304–11. http://dx.doi.org/10.36695/2219-5521.1.2021.60.
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The article analyses the process of formation of the legal framework of international criminal justice, modern models of organisationand activity of international courts of criminal jurisdiction, features that unite the bodies of international justice. The author’sspecial attention is drawn to the organisational (institutional) elements that make up the system of modern international justice. Theoreticalproblems are not left out, in particular, the characteristics and properties of this system are described.It is noted that international criminal justice, as a relatively new phenomenon in the system of international law, is one of theareas of international cooperation, which is the implementation of courts established by the international community with the participationof the UN, on the basis of international treaties, review and resolution activities. In essence, cases of international crimes, as wellas other crimes within their jurisdiction. International criminal justice is also seen as an international judicial mechanism and procedureestablished by the world community of states to deal with the criminal cases of perpetrators of international crimes. It is noted that internationalcriminal justice is an activity of application of international law, its legal norms and principles, which are fundamental forensuring peace, protection of the person and vital interests of the international community.International criminal justice is characterised by a number of essential features that distinguish international criminal justice fromother types of international cooperation. It is noted that the basis of the activities of international criminal justice bodies and their decision-making are international law, both substantive and procedural.A key place in the article is occupied by the characteristics of scientific approaches to the typology of models of internationaljudicial institutions and the analysis of institutional models of establishment, formation, organisation and activity of international crimi -nal justice bodies. The development of these institutional models is considered from the first positive experience in this activity of theNuremberg and Tokyo tribunals, initiated the formation of a system of fundamental principles of international criminal law, the activi -ties of international ad hoc tribunals, mixed (hybrid) courts to the permanent International Criminal Court. Their legal basis for establishment,jurisdiction and problematic issues of international criminal justice are considered.
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Шаталов, А. С. "Courts’ application of generally recognized principles, norms of international law and international." Ius Publicum et Privatum, no. 2(17) (June 10, 2022): 131–43. http://dx.doi.org/10.46741/2713-2811.2022.17.2.015.
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В статье рассматриваются актуальные вопросы, непосредственно связанные с рассмотрением уголовных дел в судебном заседании. В ней показано, как суды, руководствуясь в своей деятельности в основном Конституцией Российской Федерации и действующим уголовно-процессуальным законодательством, пользуются предоставленной им возможностью обращаться при осуществлении правосудия к общепризнанным принципам, нормам международного права и международным договорам Российской Федерации. На фоне анализа законодательных положений и примеров из судебной практики автор подробно описывает процессуальные процедуры их применения в судебном производстве по уголовным делам The article deals with topical issues directly related to consideration of criminal cases in a court session. It shows how the courts, guided in their activities primarily by the Constitution of the Russian Federation and the current criminal procedural legislation, use the opportunity provided to them to appeal to the generally recognized principles, norms of international law and international treaties of the Russian Federation in the administration of justice. Having analyzed legislative provisions and examples from judicial practice, the author describes procedures for their application in criminal proceedings in detail
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Seelinger, Kim Thuy. "Close to Home." Journal of International Criminal Justice 18, no. 2 (May 1, 2020): 219–42. http://dx.doi.org/10.1093/jicj/mqaa029.
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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.
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Neff, Stephen C. "I. International Law and Nuclear Weapons in Scottish Courts." International and Comparative Law Quarterly 51, no. 1 (January 2002): 171–76. http://dx.doi.org/10.1093/iclq/51.1.171.
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Britain's Trident nuclear missile programme has long been politically controversial. In 1999, the controversy entered the judicial arena in Scotland, in two cases involving ‘direct action’ against Trident installations by anti-nuclear activists. In both cases, the actions were intended not as protests against Britain's nuclear-weapons policy, but rather as actual operations to disable the weapons themselves. The acts were, in other words, in the nature of acts of sabotage. Both incidents led to criminal prosecutions. In both cases, the accused parties sought to use international law as a defence. In both cases, the Appeal Court of the High Court of Justiciary—the highest court for criminal cases in Scotland—rejected the defence. In the process, however, the Appeal Court had occasion to expound upon some controversial points regarding nuclear weapons. Each of these cases will be discussed in turn.
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Epik, Aziz. "No Functional Immunity for Crimes under International Law before Foreign Domestic Courts." Journal of International Criminal Justice 19, no. 5 (November 1, 2021): 1263–81. http://dx.doi.org/10.1093/jicj/mqab071.
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Abstract For some time now, there seemed to be consensus that functional immunity does not protect (former) state officials from criminal prosecution by foreign domestic courts in cases where they are suspected of having committed or participated in crimes under international law. Recently, however, this has been called into question not only by scholars but also by members of the International Law Commission as well as a considerable number of state representatives. It is against this backdrop that the German Federal Court of Justice has issued a landmark judgment confirming the exclusion of functional immunity in cases of crimes under international law. This article provides a summary as well as a legal analysis of the Court’s main arguments. It focuses on the main question of immunity while also touching upon the Court’s application of the substantive law concerning war crimes under the German Code of Crimes Against International Law.
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Zongwe, Dunia P. "Taking Leaves out of the International Criminal Court Statute: The Direct Application of International Criminal Law by Military Courts in the Democratic Republic of Congo." Israel Law Review 46, no. 2 (June 14, 2013): 249–69. http://dx.doi.org/10.1017/s0021223713000071.
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Article 215 of the Constitution of the Democratic Republic of Congo (DRC) is the entry point for international law into the DRC legal complex. It provides that international treaties and agreements duly ratified by the state predominate over Acts of Parliament. Cases and studies involving the direct effect or self-executing norms of international law in domestic cases are rare in the DRC. The correct ways of applying Article 215 of the Constitution and international law in domestic cases have not yet been authoritatively settled. The basic dilemma is whether courts should read the provisions of relevant international treaties into disputed provisions of DRC laws or read the disputed provisions in the light of the relevant treaty provisions.Using as a case study the emerging practice of DRC military courts of directly applying international criminal law in domestic cases, the article argues that carelessly cutting and pasting formulations found in international treaties into the texts of applicable municipal laws infringes state sovereignty. Instead, the article proposes a strategy that would avoid unpleasant friction between international criminal law and municipal law, while encouraging cultural pluralism and the judicious intervention of international law in municipal law.
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Chlevickaite, Gabriele, Barbora Hola, and Catrien Bijleveld. "Thousands on the stand: Exploring trends and patterns of international witnesses." Leiden Journal of International Law 32, no. 4 (September 2, 2019): 819–36. http://dx.doi.org/10.1017/s0922156519000396.
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AbstractThe international criminal courts and tribunals have heard thousands of witnesses in cases of extreme complexity and breadth. Their evidentiary record is overwhelming, with live witness testimony standing out as one of its defining features. Keeping in mind the arguments and policies of judicial efficiency and fairness, this article empirically examines the trends and patterns in viva voce witness numbers at the International Criminal Tribunal for the Former Yugoslavia (ICTY), for Rwanda (ICTR), and the International Criminal Court (ICC). We observe clear differences between institutions and individual cases, and discuss the underlying reasons for such divergences. As well as providing a general overview, we demonstrate the complex interaction between case-related characteristics, institutional and situational contexts, and the number of witnesses called at trial.
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Bedir, Ömer. "The Flotilla Incident from the Perspective of International Law and the Judicial Rights of the Victims." Age of Human Rights Journal, no. 15 (December 15, 2020): 51–72. http://dx.doi.org/10.17561/tahrj.v15.5817.
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The Mavi Marmara flotilla, which sailed for a humanitarian mission and aimed to break the Israeli blockade to Gaza, was intercepted by the Israeli soldiers on high sea on 31st May 2010. In this raid, nine civilians have lost their lives on the spot and 55 others were wounded. States and their agents can be held accountable if they commit crimes. Therefore, the Mavi Marmara victims have the right to sue at national and international level the Israeli officers who took part in the operation. Some victims have filed criminal and civil cases before the Turkish courts against Israel and its officers. Besides these judicial cases brought before the national courts, a referral was also made by the Union of the Comoros, flag country of the Mavi Marmara vessel, to the International Criminal Court. Meanwhile, Turkey and Israel have signed a bilateral agreement for the compensation of the bereaved families. This compensation agreement clears Israel and its officers off all legal responsibilities arising from the flotilla incident before the Turkish courts. This bilateral agreement is a legal obstruction imposed to the victims in their quest of justice. The Turkish Court of Cassation, in its recent decisions, has requested the courts of first instance to take into consideration the provisions of the said agreement. Despite the above mentioned agreement, the victims shall have still the right to sue the Israeli officials responsible for the flotilla incident before national, foreign and international courts, on the grounds of crime against humanity, provided that the necessary requirements are fulfilled.
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Koryakovtsev, V. "Grounds for review of court decisions based on the jury’s decision in the appellate instance." Law Enforcement Review 2, no. 3 (December 25, 2018): 117–34. http://dx.doi.org/10.24147/2542-1514.2018.2(3).117-134.
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The subject of the paper is the procedural features and grounds for the appellate revision of the verdict, decided by the court with the participation of jurors.The purpose of the article is to is to assess the effectiveness of the rules on the grounds for review of courts’ decisions based on jury’s verdict.The description of methodology. The author uses formal-legal and comparative-legal methods during the scrutinize the text of the Criminal Procedure Code of the Russian Federation and international legislation. The court statistics is also analyzed.The main results and scope of their application. The author gives a general description of the legal concepts of cassation and appeal, their similarities and differences. The paper suggests statistical indicators of the activity of the jury as a court of first instance, as well as statistical characteristics of the decisions of the Supreme Court of the Russian Federation as a court of appeal and as a court of cassation. A brief description of the rules of appeal proceedings, the types of appealed decisions, powers and limits of the rights of appeal are also characterized. It is proposed to analyze the grounds for repealing or changing the ac-cusatory and acquittal decisions of courts with the participation of jurors, the interpretation of such grounds by higher courts through the resolution of specific criminal cases. Specific criminal cases examples are given, and foreign criminal procedure legislation is analyzed.Conclusions. The author suggests to replace the grounds for cancellation or modification of both accusatory and acquittal decisions of courts based on the jury’s decision with the grounds previously provided in art. 465 of the Code of Criminal Procedure of the RSFSR because of their clearer legal content.
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Roux, Mispa. "Addressing a selection of challenges faced at international courts and tribunals with jurisdiction over international crimes." African Yearbook on International Humanitarian Law 2020 (2020): 44–77. http://dx.doi.org/10.47348/ayih/2020/a3.
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One of the core characteristics of international crimes is that they are committed on a great scale; therefore, the sheer volume and complexity of evidence required to justify investigation and ultimately prosecution inevitably leads to several challenges. Since the first time that persons were held individually criminally responsible at an international level at Nuremberg and in the Far East, to the way in which the permanent International Criminal Court fulfils its mandate, investigating and prosecuting international crimes have involved manifold challenges. This article identifies three challenges faced by international criminal courts and tribunals in investigating and prosecuting international crimes. The first challenge is the investigation phase of international criminal proceedings, specifically the difficulty of selecting cases and identifying persons with the greatest responsibility for the crimes. The second challenge flows from the first, specifically in light of the magnitude of evidence indicating the required gravity to pursue further investigation and eventually prosecution. This raises the difficult question whether investigators, prosecutors, and judges are able to consistently comply with their duty to respect and protect the various fair trial rights to which suspected and accused persons are entitled. The third and final challenge that will be engaged with in this article relates to the formidable impact of international and political relations at all stages of investigation and prosecution of international crimes, which may ultimately thwart compliance with the obligation to prosecute international crimes.
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Van Cleve, Nicole Gonzalez. "Due Process & the Theater of Racial Degradation: The Evolving Notion of Pretrial Punishment in the Criminal Courts." Daedalus 151, no. 1 (January 1, 2022): 135–52. http://dx.doi.org/10.1162/daed_a_01894.
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Abstract Most theorists assume that the criminal courts are neutral arbiters of justice, protected by the Constitution, the rule of law, and court records. This essay challenges those assumptions and examines the courts as a place of punitive excess and the normalization of racial abuse and punishment. The essay explains the historic origins of these trends and examines how the categories of “hardened” and “marginal” defendants began to assume racialized meanings with the emergence of mass incarceration. This transformed the criminal courts into a type of public theater for racial degradation. These public performances or “racial degradation ceremonies” occur within the discretionary practices and cultural norms of mostly White courtroom professionals as they efficiently manage the disposition of cases in the everyday practice of law. I link these historical findings to a recent study of the largest unified criminal court system in the United States–Cook County, Chicago–and discuss court watching programs as an intervention for accountability and oversight of our courts and its legal professionals.
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Manzhosov, Sergei, and Sergey Belov. "Decisions of International Courts: Following Precedents or Consistent Jurisprudence?" Meždunarodnoe pravosudie 10, no. 4 (2020): 3–21. http://dx.doi.org/10.21128/2226-2059-2020-4-3-21.
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The contemporary international law doctrine is critical to the notion of binding force of general positions of international courts. The grounds for this critics is more weighty in international law than in domestic law. If in the latter general binding force of judicial decisions erga omnes questions the separation of powers, in the former the states as the main actors of the international relations try to participate and control any norm-making. At the same time international courts realize the necessity of consistency of interpretation and applying of legal norms and principles, as unpredictable decisions breach the certainty of law. These courts demonstrate surprising uniformity of approaches to this issue, disregarding their status, legal grounds for their jurisdiction, the nature of the cases they consider. The courts recognize their duty to follow the sustainable interpretation of international law, as it appears in the own practice of these courts and other international authorities, because this is crucial for the definiteness of legal regulation, predictability of judicial decisions and consistency of legal solutions. The international courts reject following precedents according to the stare decisis rule and are very caution to declare following the concept of jurisprudence constant, trying to be equidistant to particular legal traditions. The legal acts regulating the international justice favour this caution, as they establish the binding force of judicial decisions only inter partes and within concrete case. In a case of need to deviate from the established practice both the International Court of Justice, International Criminal Court, European Court of Human Rights and international investment arbitration tribunals tend to (1) appeal to formal arguments of non-binding force of previous decisions, or (2) argue the differences of considering case with preceding cases, or (3) base on notions developed in their practice – e.g., the idea of “European consensus” in the practice of the European Court of Human Rights.
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Schack, Marc, and Astrid Kjeldgaard-Pedersen. "Striking the Balance between Custom and Justice − Creative Legal Reasoning by International Criminal Courts." International Criminal Law Review 16, no. 5 (October 12, 2016): 913–34. http://dx.doi.org/10.1163/15718123-01605006.
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Certain customary norms complicate the work of international criminal courts and tribunals (icts). The principle of legality prescribes that no one can be convicted for ‘new’ or ill-defined crimes, and the rules on personal immunity bar icts from prosecuting high-level defendants. In cases involving these issues, icts face the dilemma of weighing fundamental ‘rule of law’ principles against their core objective: to hold leaders accountable for international crimes. Various icts have resorted to what some commentators euphemistically call ‘creative’ application of customary international law but critics label as ‘poor legal reasoning’. By examining examples of such rulings, with particular focus on a recent string of decisions by the International Criminal Court (icc) regarding head of state immunity, this article attempts to identify and assess a modus operandi of icts confronted with the arduous choice between ‘safe-bet’ application of the relevant sources of law and ensuring international criminal justice.
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LE MON, CHRISTOPHER J. "Post-Avena Application of the Vienna Convention on Consular Relations by United States Courts." Leiden Journal of International Law 18, no. 2 (June 2005): 215–35. http://dx.doi.org/10.1017/s092215650500261x.
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Following the judgment of the International Court of Justice in the Avena case, US courts have had a mixed record in applying the decision domestically. In this article, I examine the treatment by US courts of claims by criminal defendants alleging Vienna Convention violations, subsequent to the Avena judgment. First, I discuss the two limited decisions so far taken by the US Supreme Court regarding the Vienna Convention, and briefly explain several of the judicially-created rules that have prevented most US courts from reaching the merits of Vienna Convention claims. Next, I analyse the ICJ judgment in the LaGrand case, and provide an overview of the reception of that case by the US courts. After a summary of the Avena decision, I turn to the latest cases in which Vienna Convention claims based on Avena have been raised in US courts, focusing on the two most important decisions, and examining their contradictory rulings. As the US Supreme Court has now decided to hear an appeal in one of these cases, I conclude by arguing that the Supreme Court should take the opportunity to elucidate the role of the International Court of Justice in US law when the United States has consented to binding treaty interpretation by that court.
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Swart, Bert. "Settling Criminal Cases Without a Trial." Israel Law Review 31, no. 1-3 (1997): 223–44. http://dx.doi.org/10.1017/s0021223700015296.
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According to Article 13 of the International Covenant on Civil and Political Rights and Article 6 of the European Convention on Human Rights everyone is entitled to a fair and public hearing by an independent and impartial tribunal in the determination of any criminal charge against him. The essence of both provisions could be rephrased by saying that criminal sanctions may only be imposed on a person by an independent and impartial tribunal and only if that person has been able to defend himself against a charge during a hearing that satisfies all requirements of a fair trial.Realities, of course, are rather different. In almost all national systems of justice there is an increasing tendency to develop procedures that allow for imposing sanctions without the necessity of a criminal trial. Their main purpose is usually to relieve the system of a burden of cases with which it cannot really cope. Basically, there are two strategies to reduce the workload of courts and public prosecutors. The first is to invite the suspect to waive his right to trial in exchange for certain favours. This usually occurs in the form of an agreement between the public prosecutor and the suspect, while quite often the cooperation of the court that would have tried the case is also required. The second solution is to grant sanctioning powers to administrative bodies and to allow individual persons an appeal against their decisions to an independent and impartial tribunal.
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Farbiarz, Michael. "Extraterritorial Criminal Jurisdiction." Michigan Law Review, no. 114.4 (2016): 507. http://dx.doi.org/10.36644/mlr.114.4.extraterritorial.
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Over and over again during the past few decades, the federal government has launched ambitious international prosecutions in the service of U.S. national security goals. These extraterritorial prosecutions of terrorists, arms traffickers, and drug lords have forced courts to grapple with a question that has long been latent in the law: What outer boundaries does the Constitution place on criminal jurisdiction? Answering this question, the federal courts have crafted a new due process jurisprudence. This Article argues that this jurisprudence is fundamentally wrong. By implicitly constitutionalizing concerns for international comity, the new due process jurisprudence usurps the popular branches’ traditional foreign relations powers. And in the name of protecting defendants’ presumed interests, the new due process jurisprudence may end up badly undermining them by incentivizing a turn to harsher, alternative national security measures—drone strikes, for example, and military detention in Guant´anamo Bay. Moreover, because of certain structural features of the international law enforcement system, U.S. courts have applied the new due process jurisprudence generally—perhaps even exclusively—in precisely that class of cases to which it should not be applied. None of this needs to be. Borrowing from choice-of-law doctrine, I argue that a coherent due process jurisprudence would focus solely on the unfairness, if any, that flows from actual conflicts between federal criminal law and the local criminal law of the place where the defendant acted. A due process jurisprudence reformulated to focus on actual conflicts protects both the liberty of criminal defendants and global public safety.
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Tolar, Autumn D. "Human Trafficking Analyzed as a Crime Against Humanity." International and Comparative Law Review 20, no. 1 (June 1, 2020): 127–52. http://dx.doi.org/10.2478/iclr-2020-0006.
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Summary The global legal landscape recognizes the seriousness of human trafficking crimes yet many cases remain unheard. Current classifications of this crime along with jurisdictional requites for the International Criminal Courts are preventing adjudication of trafficking in persons when there is a factor of transnationality. I argue that the solution to positioning human trafficking into the jurisdiction of the International Criminal Courts is to analyze its rise to the level of a crime against humanity. Until this point, there has not been a human trafficking case well suited to make this argument to thoroughly demonstrate all the elements required to be classified as a crime against humanity. I argue that not only does the cross examination of human trafficking, under the Trafficking Protocol and the enumerated acts of Article 7(1) of the Rome Statute, meet the elements of a crime against humanity, but that the recent human trafficking situation of the Rohingya people in Myanmar further demonstrates its potential application and necessity. Classifying human trafficking as a crime against humanity would put these cases in the jurisdiction of the International Criminal Courts which would give previously domestically neglected cases an opportunity to be prosecuted and potentially deter the growing human trafficking epidemic.
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Almqvist, Jessica. "Searching for Common Ground on Universal Jurisdiction: The Clash between Formalism and Soft Law." International Community Law Review 15, no. 4 (2013): 437–57. http://dx.doi.org/10.1163/18719732-12341263.
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Abstract The possibility of prosecuting serious international crimes before domestic foreign courts when territorial courts are unwilling and unable to perform this function and international criminal tribunals with suitable competences are unavailable has been intensively debated since the time of the Spanish arrest warrants against Pinochet. The African disapproval of decisions by European courts to exercise universal jurisdiction over serious crimes allegedly perpetrated by former African leaders indicates the absence of common ground on where and how such jurisdiction is to be utilized. The recent judgment of the International Court of Justice in the dispute between Belgium and Senegal sheds new light on how consensus on these issues might be forged. The Court’s commitment to formalism in the ascertainment and application of international law together with its ends-focused reasoning on the substance of that law reinforces the view that the UN Convention against Torture offers a non-controversial legal basis for upholding universal jurisdiction competences in these cases. However, the conclusions reached in the judgment can also be criticized for clashing with soft law recommendations in the field, pointing to the advantages of the organization of high-profile trials located in Africa in spite of the practical difficulties involved.
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Yeh, Stuart S. "APUNCAC and the International Anti-Corruption Court (IACC)." Laws 10, no. 1 (December 25, 2020): 1. http://dx.doi.org/10.3390/laws10010001.
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The draft Anticorruption Protocol to the United Nations Convention against Corruption (APUNCAC) seeks to implement aggressive measures to fight corruption and impunity, including United Nations inspectors who would conduct independent investigations into allegations of corruption and hand cases to dedicated domestic anticorruption courts. APUNCAC is designed to be a free-standing proposal. However, it could be combined with Judge Mark Wolf’s proposal for an International Anti-Corruption Court (IACC). An advantage of combining IACC + APUNCAC is that the combination defuses the key arguments against the IACC. This article reviews evidence suggesting that leaders of nations that currently experience endemic corruption might find it politically expedient to adopt the proposed reforms. The article discusses the advantages of combining IACC + APUNCAC. The combination would establish an independent corps of elite investigators, endow them with strong powers to conduct independent investigations, and enable them to refer cases to dedicated anticorruption courts staffed by judges vetted by the United Nations Commission on Crime Prevention and Criminal Justice. APUNCAC establishes mechanisms to ensure accountability of judges serving dedicated anticorruption courts. By addressing the key arguments against the IACC, the proposal to combine IACC + APUNCAC may enable broad public support in nations that would require public support in order to secure ratification.
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Khamala, Charles A. "Legal Aid for Effective Victim Legal Representation in Kenya’s Post-Election Violence: Lessons from the International Criminal Court." International Journal of Criminology and Sociology 11 (December 31, 2022): 159–71. http://dx.doi.org/10.6000/1929-4409.2022.11.17.
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The International Criminal Court’s legal aid scheme pays court-appointed victims’ lawyers. Yet, whether ICC or domestic legal proceedings can provide better victim satisfaction goes beyond the question of whether external or internal legal representation is more effective in protecting victims’ rights. In circumstances where guilt is difficult to prove, as in the ICC’s Kenya cases, victims’ interests may be better satisfied by pursuing compensation from local courts. This paper therefore argues that post-election violence victims’ interests may be satisfied by legal aid to support domestic compensation claims. Although numerous victims participated in the Kenya cases, non-confirmation of charges against the former Police Commissioner, withdrawal of the Muthaura and Kenyatta case, and declining to conduct reparation hearings after vacating charges in the Ruto and Sang case, culminated in widespread victim dissatisfaction. The paper contrasts the victims’ plight in the Kenya cases with fortunes of victims who participated at the ICC with those of the CAVI Police Shooting case and COVAW Sexual and Gender Based Violence case which effectively proved more satisfying for some victims. The question is whether legal aid for victims’ representatives before domestic courts may enhance the effectiveness of local responses to atrocity crimes. Although the comparatively successful recent domestic suits illustrate advantages of pursuing constitutional-based compensation claims, as opposed to punitive-contingent reparations before the ICC, these test cases require upscaling. Notwithstanding the ‘Kenyan Trial Approach’s’ significant impact on ICC evolution, to vindicate victims’ rights, the Trust Fund for Victims may consider donating to Kenya’s Victim Protection Fund so as to supplement PEV victim compensation. Kenya’s Legal Aid Act requires reforms to support indigent victims, particularly those suffering abuse of power.
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Hassan, Saud. "Establishment of the International Criminal Court and the Role of USA: A Legal Appraisal." Northern University Journal of Law 1 (April 7, 2014): 51–69. http://dx.doi.org/10.3329/nujl.v1i0.18525.
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In order to end global impunity of perpetration of heinous crimes against humanity and gross violation of human rights and to bring individual perpetrators to justice, international community felt the need for a permanent international criminal court.2 As the armed conflicts and serious violations of human rights and humanitarian law continue to victimize millions of people throughout the world, the reasons for an international criminal court became compelling.3 In many conflicts around the world, armies or rebel groups attack ordinary people and commit terrible human rights abuses against them. Often, these crimes are not punished by the national courts. Here the ICC is complementary to national criminal jurisdictions.4 The court only acts in cases where states are unwilling or unable to do so.5 The jurisdiction of the Court is not retrospective and binds only those States that ratify it.6 Unlike the International Court of Justice in The Hague, whose jurisdiction is restricted to states, the ICC has individualized criminal responsibility. However, the role of USA regarding the establishment and continuation of ICC has caused the organization fall in a trouble. The better cooperation of USA and other states could make the organization more active and effective as to its activities. The view of this paper is to analyze the role of USA towards the establishment, continuation and function of the International Criminal Court. DOI: http://dx.doi.org/10.3329/nujl.v1i0.18525 Northern University Journal of Law Vol.1 2010: 51-69
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Jovasevic, Dragan. "International criminal law: Between law and politics." Medjunarodni problemi 65, no. 1 (2013): 42–67. http://dx.doi.org/10.2298/medjp1301042j.
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Crimes against international law are committed by violating the rules of international humanitarian law during wars or armed conflicts. The perpetrators of these crimes are under the jurisdiction of international criminal courts (military or civil, permanent or ad hoc). The process of the commission of crimes against international law may comprise several different phases or stadiums. Moreover, such criminal offences rarely appear as the results of only one person?s activities. On the contrary, in numerous cases of these criminal offences, accomplice appears as a form of collective participation of several persons in the commission of one or more crimes against international law. All these facts represent grounds for the specific type of criminal responsibility of the perpetrators of crimes against international law. It is a object of regulation international criminal law about whose characteristics converse this article.
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Gurda, Vedad, Dževad Mahmutović, and Maja Iveljić. "The post-Dayton search for justice: War crimes trials in Bosnia and Herzegovina before competent courts." Historijski pogledi 4, no. 6 (November 15, 2021): 250–82. http://dx.doi.org/10.52259/historijskipogledi.2021.4.6.250.
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The armed conflicts in Bosnia and Herzegovina in the period from 1992 to 1995, which ended with the conclusion of the so-called The Dayton Peace Agreement was marked by serious violations of fundamental human rights and freedoms and the commission of horrific war crimes. Prosecution of defendants for these crimes takes place at several levels, ie before: a) the International Criminal Tribunal for the Former Yugoslavia (ICTY), b) domestic courts and c) courts of certain foreign states. The paper analyzes certain indicators related to the prosecution of these crimes, their scope and structure, as well as the ratio of convictions and acquittals for certain war crimes, the scope of application of conventional and summary forms of ending criminal cases and court policy of sanctioning perpetrators. It was learned that by the end of 2020, hundreds of criminal proceedings against approximately a thousand defendants had been completed. Most of the accused were prosecuted before the Court of Bosnia and Herzegovina (Court of B&H), followed by the ICTY, and a slightly smaller number before the courts of the former SFRY and some Western European countries. The research established that before the ICTY, out of the total number of accused for war crimes committed in Bosnia and Herzegovina, as many as 90.2% were convicted of some of these crimes, while the rate of convicted in relation to accused before the Court of B&H was 67.2% , and before the courts in the Republic of Serbia 70.2%. It is interesting that before the ICTY as many as 24.3% of the accused were convicted in summary proceedings on the basis of a plea agreement, while before the Court of B&H 13,3% of the accused were convicted using a plea bargaining as a consensual model for ending criminal cases. So far, 22 people have been convicted of the crime of genocide as the most serious crime before the ICTY, the Court of B&H and German courts, and all convictions related to the activities of the Army of Republika Srpska during the war in Bosnia and Herzegovina. Court of B&H, inherited a relatively mild policy of punishing war crimes. Finally, it was found that certain courts, especially Court of B&H, inherited a relatively mild policy of punishing war crimes.
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ROPER, STEVEN D., and LILIAN A. BARRIA. "State Co-operation and International Criminal Court Bargaining Influence in the Arrest and the Surrender of Suspects." Leiden Journal of International Law 21, no. 2 (June 2008): 457–76. http://dx.doi.org/10.1017/s0922156508005037.
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AbstractWhile much has been written about the formation of the International Criminal Court (ICC), less attention has been focused on the enforcement capability of the Court. As demonstrated by the history of the ad hoc international tribunals, one of the most pressing problems for international criminal courts is the arrest and the surrender of suspects, which often requires substantial bargaining between the court and the state in which the suspect resides. We develop a classification of the issues which have the greatest impact on the bargaining influence of the ICC to secure the arrest of indictees, and apply this classification scheme to a study of the four ongoing situations at the ICC in order to explore the bargaining environment in which the ICC operates. While many of the cases have features which should assist the ICC in bargaining with the state, the situation in Sudan represents the greatest challenge for the Court.
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Lyngdorf, Sandra, and Harmen van der Wilt. "Procedural Obligations Under the European Convention on Human Rights: Useful Guidelines for the Assessment of 'Unwillingness' and 'Inability' in the Context of the Complementarity Principle." International Criminal Law Review 9, no. 1 (2009): 39–75. http://dx.doi.org/10.1163/157181209x398817.
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AbstractThe authors are involved in a research project “Impact of International Courts on Domestic Criminal Procedures in mass atrocity cases” (DOMAC), uniting Hebrew University, University College London, Reykjavik University and the University of Amsterdam.
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Olmos Giupponi, Belen, and Hong-Lin Yu. "Analysing Obstacles and Challenges in Fighting Corruption in Cases of Illegal Investments." Laws 11, no. 4 (July 27, 2022): 59. http://dx.doi.org/10.3390/laws11040059.
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Due to existing shortcomings in the system, the suitability and effectiveness of the international investment arbitration regime in addressing corrupt practices in international transactions and investment projects has been frequently questioned. The current legal and regulatory regime presumes that there is a level playing field, i.e., that the parties to an arbitration have equal access to information regarding corrupt actions. However, in practice, bringing claims of corruption in international investment fora meets various obstacles such as evidentiary hurdles and the lack of a specific arbitrators’ mandate. Hence, the focus of this article is on addressing gaps in the international investment arbitration regime dealing with corruption cases. There is increasing concern that the international legal and regulatory regime is inadequate and contains gaps that permit multinational firms to engage in illegal acts involving corruption. Against this backdrop, the main issue that arises is how the international community should respond. This article reviews the gaps in the international investment arbitration regime and then identifies two broad strategies to address the issue of accountability. The first strategy would be to build on and strengthen the existing international investment arbitration regime, which would imply its re-engineering. A second strategy would be to establish a regime providing a new forum and an avenue for dedicated international criminal investigators to be paired with dedicated anticorruption courts that would handle criminal complaints. The Anticorruption Protocol to the United Nations Convention against Corruption (APUNCAC) represents an example of the second strategy. The APUNCAC is a model convention that calls for the implementation of a system comprising dedicated international criminal investigators and dedicated anticorruption courts, in addition to a system where plaintiffs could pursue civil class actions and seek treble damages. The APUNCAC represents a more radical strategy for addressing corruption on the international level. In addition, the APUNCAC would also permit civil class actions seeking treble damages. Overall, the APUNCAC would offer claimants an opportunity to pursue their claims in a neutral forum.
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Graetz, Michael J. "Trusting the Courts: Redressing the State Court Funding Crisis." Daedalus 143, no. 3 (July 2014): 96–104. http://dx.doi.org/10.1162/daed_a_00291.
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In recent years, state courts have suffered serious funding reductions that have threatened their ability to resolve criminal and civil cases in a timely fashion. Proposals for addressing this state court funding crisis have emphasized public education and the creation of coalitions to influence state legislatures. These strategies are unlikely to succeed, however, and new institutional arrangements are necessary. Dedicated state trust funds using specific state revenue sources to fund courts offer the most promise for adequate and stable state court funding.
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Solomon, Solon. "Broadening International Criminal Jurisdiction?" International Human Rights Law Review 4, no. 1 (June 11, 2015): 53–80. http://dx.doi.org/10.1163/22131035-00401006.
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The interests of justice are embedded in Article 53 (1) of the Rome Statute of the International Criminal Court (Rome Statute). They give the Prosecutor the right to decline to initiate an investigation or suspend a prosecution. In these cases, the interests of justice act as a basis for the Prosecutor to refrain from any action. This article argues that due to their non-positivist character, the interests of justice could serve as the platform also of prosecutorial action, acting as the legal vehicle for a broad interpretation of the Rome Statute in the name of justice. Nevertheless, such broad, interests of justice-instigated interpretation, cannot but have positivism as its outmost limit. The Rome Statute is an international criminal law instrument and international criminal law is governed by the legality principle, which narrows any hermeneutical endeavors. Along these lines, this article examines the nexus between the expansive interpretational interests of justice function and its limits by referring to cases where the International Criminal Court (icc) was called to endorse or not a broad interpretation of notions included in the Rome Statute. The article examines cases arising from situations referred to the icc by States and by the un Security Council.
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Thynne, Kelisiana. "The International Criminal Court: A Failure of International Justice for Victims?" Alberta Law Review 46, no. 4 (August 1, 2009): 957. http://dx.doi.org/10.29173/alr212.
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The International Criminal Court marked its tenth anniversary in 2008. In conjunction with that milestone, this article considers the status of international justice in the context of victims’ rights in the Court’s proceedings. The author presents a case study of the Thomas Lubanga Dyilo case and, in doing so, explores the reasons why the Court might already be failing to provide international justice for victims of international crimes. The article specifically discusses the rights of victims of gender-based crimes and the intersection between victims and justice in the Court. The author also offers suggestions of how the Court can better achieve international justice for victims as it moves forward with its first cases.
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Koh, Harold Hongju. "The Case Against Military Commissions." American Journal of International Law 96, no. 2 (April 2002): 337–44. http://dx.doi.org/10.2307/2693928.
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In January 2002, Zacarias Moussaoui, a French national of Moroccan descent, pleaded not guilty in Virginia federal court to six counts of conspiring to commit acts of international terrorism in connection with the September 11 attacks on the Pentagon and the World Trade Center. In other times, it would have seemed unremarkable for someone charged with conspiring to murder American citizens and destroy American property on American soil to be tried in a U.S. civilian court. More than two centuries ago, Article I, Section 8, Clause 10 of the United States Constitution granted Congress the power to "define and punish Piracies, Felonies committed on the High Seas, and Offenses against the Law of Nations," a power that Congress immediately exercised by criminalizing piracy, the eighteenth-century version of modern terrorism. Since then, Congress has criminalized numerous other international offenses. In recent decades, United States courts have decided criminal cases convicting international hijackers, terrorists, and drug smugglers, as well as a string of well-publicized civil lawsuits adjudicating gross human rights violations. Most pertinent, federal prosecutors have successfully tried and convicted in U.S. courts numerous members of Al Qaeda, the very terrorist group charged with planning the September 11 attacks, for earlier attacks on the World Trade Center and the U.S. embassies in Tanzania and Kenya.
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GRANIK, MARIA. "Indirect Perpetration Theory: A Defence." Leiden Journal of International Law 28, no. 4 (October 30, 2015): 977–92. http://dx.doi.org/10.1017/s0922156515000540.
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AbstractThe aim of this article is to show that the concept of perpetration by means as it appears in Article 25 of the Rome Statute of the International Criminal Court (Rome Statute) accurately reflects liability for crimes committed by high-level perpetrators who exercise control over the actions of the lower-level (fully responsible) perpetrators. Finding the proper mode of liability in these cases is crucial to the International Criminal Court's (ICC) mission of ending impunity for serious international crimes. While international criminal law may be unlikely to deter criminals, especially heads of state and other powerful leaders, it can provide some sense of justice for the victims by convicting and punishing those responsible for their suffering. As such, the functions of international criminal law are to a large extent expressive and retributive. At the same time, it is important to keep the focus of international criminal law on individual responsibility of the perpetrators. It is, therefore, crucial to find proper labels that reflect culpability well. I hope to make a contribution to this search in what follows.This article is divided into five sections. First, I provide a background to the move, recently articulated by the ICC, from the concept of joint criminal enterprise (JCE) to that of indirect perpetration (and indirect co-perpetration) (section 2). Second, I analyse the original presentation of this idea by the German jurist Claus Roxin (section 3). Third, I examine the application of this concept by the German courts, particularly in the 1994 trial of three high level GDR officials held liable as indirect perpetrators for the killings (carried out by the border guards) of refugees at the East/West German border (section 4). Then I present a recent (Winter 2011) proposal by Jens Ohlin to abandon both JCE and indirect perpetration in favour of another mode of collective liability based on joint intentions (section 5). Finally, I defend the concept of indirect perpetration against Ohlin's criticisms, arguing that it offers a more accurate way to label the conduct of high-level perpetrators who carry out crimes by means of direct perpetrators who are themselves liable (section 6).
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NEAGU, NOREL. "The Ne Bis in Idem Principle in the Interpretation of European Courts: Towards Uniform Interpretation." Leiden Journal of International Law 25, no. 4 (November 1, 2012): 955–77. http://dx.doi.org/10.1017/s0922156512000520.
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AbstractAs a result of the extension of the jurisdiction of the Court of Justice of the European Union over the former third pillar (Police and Judicial Cooperation in Criminal Matters), several cases were referred to the Court for interpretation, inter alia, of the dispositions of the Schengen Convention dealing with criminal matters, especially the ne bis in idem principle. This principle was also addressed in the case law of the European Court of Human Rights, the Inter-American Court of Human Rights, and the Supreme Court of the United States. While addressing the problem at international level, this article focuses principally on the case law of the Court of Justice of the European Union and the European Court of Human Rights in the field of the ne bis in idem principle, concisely presenting the legal framework, findings of the Courts, and some conclusions on the interpretation of the principle. The study also analyses the absence of uniformity in interpretation and the use of different criteria in addressing identical situations by different courts, or even by the same court, concluding on a (seemingly) fortunate approximation in interpretation at European level.
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Imran, Muhammad. "Criminal Justice System in Pakistan: A Critical Analysis of Cross-Examination in Courts." Global Legal Studies Review VII, no. I (March 30, 2022): 108–18. http://dx.doi.org/10.31703/glsr.2022(vii-i).14.
Full textAbstract:
The use of the Art of Cross-Examination in criminal trials in Pakistani courts is negatively affecting the outcomes of cases because of prejudice and hostility on the side of cross-examining lawyers and hostile witnesses.The finest person to hone the art of cross-examination is a dedicated legal expert skilled in witness examination methods. The criminal justice system in Pakistan is generally in disrepair. The three components of the criminal justice system that require improvement are the police, the prosecutors, and the court system. The primary focus of this study was on cross-examination in Pakistani criminal courts, not on other conflict-resolution strategies.Even the best trial attorneys must perform under cross-examination since it is a challenging tactic. The majority of the research's sources came from online sources, academic publications in libraries, and works by local and international researchers. A witness for the opposing side who had already testified was questioned during cross-examination. The cases of Pakeeza Bibi, Zakir Jafri Noor Muqaddam, Sughran Bibi, and Salma Bibi were investigated. A witness' testimony, knowledge, or credibility was confirmed or challenged through a cross-examination. This investigation leads to the conclusion that cross-examination is a methodical process. The strict regulations, well-established methods, and distinctly measured strategies of the examiner increase the chances of success.
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Verniaev, I. I. "Justice on the Frontier: Mixed Court of Chinese Eastern Railway." Modern History of Russia 12, no. 2 (2022): 321–44. http://dx.doi.org/10.21638/11701/spbu24.2022.204.
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The paper discusses the mixed courts of the Chinese Eastern Railway (CER). The researchers studied mostly the early stages of mixed courts of the CER, did not use mass data, and did not compare this model of mixed justice with the courts of borderlands of the Russian Empire and the imperial post-reform justice. The paper provides a statistical analysis of court cases in 1908 and 1913 using the reporting sheets. This made it possible to trace changes in activities of a mixed court at a later stage of its functioning. The article reveals changes in the types of civil and criminal cases, the composition of trial participants, the types of court decisions. The study revealed that the number and proportion of inter-Chinese court cases increased significantly. The paper concludes about the multi-component nature of the legal basis of mixed courts. Changes in the staff of the judicial collegiums are analyzed. A comparison of the CER mixed courts with the judicial institutions of the Russian Empire borderlands, with the post-reform imperial justice and the mixed courts of the international settlements of Shanghai is carried out. It is concluded that the mixed courts creatively combined the institutional elements of different judicial system. The analysis of statistical data and descriptions allows to draw preliminary conclusions about the attitude of the population towards mixed courts and the role of this type of justice in establishing law and order on the CER. The study concludes that the mixed justice, bringing together the heterogeneous in origin and characteristics of judicial and legal practices and views, contributed to the formation of a common regional cultural and legal field on the Manchurian frontier.
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Mendy, Ousu. "APPRAISAL OF INTERNATIONAL CRIMINAL COURTS: LESSONS FOR THE GAMBIA ON JAMMEH’S ALLEGED CRIMES." Justitia et Pax 38, no. 2 (December 9, 2022): 1–31. http://dx.doi.org/10.24002/jep.v38i2.6305.
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This research is determined to present an appraisal of International Criminal Tribunal for Rwanda (hereinafter referred to as ICTR) from an international law perspective in their quest to serve justice after the perpetration of the heinous atrocities of genocide in 1994 in Rwanda and other criminal tribunals and courts. It examines the failure of the international community to intervene, the raison d’être of ICTR as the main tribunal in this research and its fate. It focuses on the national mechanisms and the need for The Gambia to achieve justice for victims of the former President, Yahya Jammeh by reflecting on Rwanda. These findings are used to gauge The Gambia’s Truth, Reconciliation and Reparations Commission’s (hereinafter referred to as the TRRC) recommendations and The Gambia’s white paper on Jammeh’s alleged crimes. It examines the violation of human rights, the prospects of this white paper and my perspective on possible mechanisms for social justice, integration and cohesion in The Gambia. This research, therefore, finds out that a hybrid court led by The Gambia and supported by judges in Africa is quite relevant to dealing with these alleged crimes because it is established with the aim of addressing this issue of Jammeh’s alleged human rights violations. This is so when The Gambia liaises with the African Union and the Economic Community of West African States to strengthen this hybrid court by providing this court with judges of outstanding legal acumen in hearing cases of such.
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Chayka, Konstantin L. "International courts: evolution of competence and influence on the maintenance of international legal and order." Gosudarstvo i pravo, no. 3 (2022): 138. http://dx.doi.org/10.31857/s102694520019383-2.
Full textAbstract:
The development of international relations at the turn of the XIX - XX centuries led to an increase in the importance of the peaceful settlement of interstate disputes, which acquired the institutionalized form of the International Court of Justice. Initially, international courts functioned on a temporary basis and were established to resolve a specific dispute, but as interstate conflicts became more complex and their number increased, the trend towards the formation of permanent judicial bodies became key. The doctrine has developed an approach by virtue of which the International Court of Justice is an independent body acting on a permanent basis on the basis of an international treaty or created by a decision of an international organization body authorized to resolve disputes in accordance with International Law and make decisions binding on the parties. A retrospective analysis of international treaties on the establishment of international courts demonstrates the transformation of their competence from the resolution of interstate disputes to the granting of the right to consider cases of human rights violations, to overcome legal conflicts between the bodies of integration associations and individuals and legal entities on economic issues, as well as to pass criminal sentences. The evolution of the competence of international courts is accompanied by the expansion of the circle of persons entitled to initiate legal disputes, which, in addition to States, includes individuals and legal entities. The transformation of the competence of international courts, their regionalization and specialization lead to a change in their role in regulating international relations. There is a transition from the peaceful settlement of interstate disputes to the protection of human rights, overcoming conflicts within the framework of integration associations, including with the participation of individuals and legal entities.