Revisiting Disclosure Obligations at the ICTR and its Implications for the Rights of the Accused

Disclosure obligations are an important and contentious topicin the International Criminal Tribunal for Rwanda jurisprudencethat directly implicates the right of the accused to a fairtrial. International Criminal Tribunal for Rwanda jurisprudencehas historically favoured disclosure of witness statements underRule 66(A)(ii); however, the possibility of disclosure underRule 68 should also be considered. Due to the practical difficultyfor the defence to obtain witness statements that may be materialto its case, the author argues that the Tribunal should reconsiderthe jurisprudence on the topic of disclosure to work towardsa more equitable disclosure regime under Rule 68.     

The Subject-Matter Jurisdiction of the Special Tribunal for Lebanon

The Special Tribunal for Lebanon (STL) represents a sui generisinternational tribunal on various levels. It is the first timea treaty-based Tribunal has been established through a resolutionof the Security Council adopted under Chapter VII. A furtherunique feature is its sole dependence on domestic substantivecrimes. The attempt to include crimes against humanity in theStatute did not succeed, despite the fact that the elementsof a crime against humanity seem to be discernable in the conductthat falls within the jurisdiction of the STL. References tointernational and regional terrorism instruments, such as theArab Convention for the Suppression of Terrorism, were alsoabandoned. The Tribunal will rely on Lebanese criminal provisionsregarding terrorism, illicit associations, crimes and offencesagainst life and personal integrity. Lebanese law provides anold but concrete definition of terrorism. This raises the questionof whether the Lebanese definition, with its strengths and weaknesses,could assist in the evolution of a well-structured definitionof international terrorism. The possibility of ‘internationalizing’the Lebanese definition will depend on two factors: the judges’approach in adopting the Tribunal's rules of evidence and procedure,and then more importantly their creativity in developing thejurisprudence of the Tribunal.     

The Creation of Investigating Chambers at the International Criminal Court: An Option Worth Pursuing?

At a time when the position of investigating judge has beenabolished in a number of civil law countries, and is being questionedin those in which it remains, it might seem curious to callfor such a position to be created at the International CriminalCourt (ICC). However, experience at the ad hoc internationalcriminal tribunals (‘ad hoc tribunals’), and especiallyat the International Criminal Tribunal for the former Yugoslaviashows that the essentially adversarial procedure used in internationalcriminal proceedings is not wholly suitable for trying complexand highly political international cases. Having investigatingjudges participate in the investigations of such cases coulddecisively enhance the effectiveness, legitimacy and fairnessof international proceedings. This would be particularly appropriatein the ICC's complex legal system, which allows victims to participatein the proceedings and claim reparations. However, this newprocedure must clearly come with a number of safeguards in orderto avoid the failures attendant on the use of the investigatingjudge in domestic systems, which could be fatal to an embryonicand fragile international court.     

Legal Aid,Self-Representation,And The Crisis At The Hague Tribunal

The unfolding of the case of Prosecutor v. Vojislav ŠeŠelj at the International Criminal Tribunal for the Former Yugoslavia (ICTY) has been dramatic and more than a little chaotic. The author argues that it is diagnostic of a broader crisis at the Tribunal. As an experiment in international justice, the ad hoc tribunal model has proved to be expensive and slow, but on several points also procedurally arbitrary, intellectually unconvincing, and vulnerable to improper political considerations. These problems have attained a critical mass in ŠeŠelj’s case, as illustrated here. The accused ŠeŠelj, an ultranationalist politician and former paramilitary leader, has vowed to bring the Tribunal to its knees. He is self- represented at trial. This privilege was twice reaffirmed in 2006 by the ICTY Appeals Chamber, having been twice revoked by a bench of trial judges. In 2007, the new pre-trial judge in the case (now presiding judge), Jean-Claude Antonetti, declared that a self-represented accused who can prove indigence is entitled to legal aid. He ordered the Registrar of the Tribunal to pay ŠeŠelj’s defence expenses from the Tribunal’s legal aid budget if ŠeŠelj could prove his indigence. The author argues that while there is good reason to disburse legal aid funds to an indigent accused who has been granted privileges of self-representation, this entitlement was not convincingly explained by Antonetti. Moreover, ŠeŠelj’s destructive aims were improperly set aside by Antonetti in reaching his decision on the public financing of his defence. The current situation, which represents the combined effort of the Appeals Chamber and Antonetti, allows ŠeŠelj to bully participants in the proceedings, issue thinly veiled threats to prospective witnesses and the public at large, and bend the trial procedure to the requirements of his political populism. The poor handling of this case by the Tribunal as a whole calls into question the ad hoc tribunal model of international criminal justice. In the period 2003–2007, the author was a legal advisor to ICTY trial judges, working for a short time on the Vojislav ŠeŠelj case prior to its transfer to Judge Antonetti.     

The International Crimes Tribunal in Bangladesh and International Law

The International Crimes Tribunal in Bangladesh was re-established in 2010 in order to hold the perpetrators of the 1971 War accountable for international crimes; namely, war crimes, crimes against humanity and genocide. The Trial has already begum to operate and has been dealing with various challenges. The basis of the trial proceedings is the International Crimes (Tribunal) Act 1973. The Parliament of Bangladesh enacted the Act in accordance with international law shortly after the War. This paper assesses the key legal issues that arise from the context of the 1973 Act, and will provide a reflection on trial proceedings in light of international law. It concludes that any initiatives to address the impunity of perpetrators and offer redress to the victims of gross human rights violations should be applauded, while any trial proceedings that do not follow appropriate standards for a fair trial and offer the right of due process should be deprecated.     

Some Innovations in the Statute of the Special Tribunal for Lebanon

The Statute of the Special Tribunal for Lebanon contains severalremarkable innovations. One major novelty is its mandate. Whileits subject matter jurisdiction includes terrorism, this isdefined solely on the basis of Lebanese law. It does not coverany international crime, but exclusively offences defined underthe Lebanese Penal Code. Unusually for a court of internationalcharacter, its activities could be limited to a single case:the attack of 14 February 2005 which killed Rafiq Hariri and22 others; the Special Tribunal will try other cases only ifthey are found to be connected to this attack. As its jurisdictionmirrors the mandate of the UN International Independent InvestigationCommission, the Statute of the Special Tribunal contains originalprovisions regulating its relationship with this body, as wellas with the Lebanese judicial authorities, which enjoy concurrentcompetence. Other important innovations concern the applicableprocedural law, which includes provisions concerning a pre-trialjudge, the role of the judges in conducting the hearings, theparticipation of victims in proceedings, and the possibilityof holding trials in absentia. These latter aspects are allcharacteristic of Romano Germanic criminal systems, and reflectthe intention of the drafters to draw up a more efficient internationalcriminal procedure.     

GATT/WTO下第三方参加诉讼制度探析

GATT WTO争端解决机制中第三方参加诉讼制度 ,尤其是参加专家组诉讼程序 ,其司法实践总是走在法律理论的前面 ;而国际法院争端解决机制中第三方参加诉讼制度 ,其司法实践总是恪守法律对第三方参加诉讼的方式、享有的诉讼权利的明确规定。这两种争端解决机制中的第三方参加诉讼制度 ,前者有逐步向后者靠拢的趋势 ,特别是体现在专家组授予第三方特殊诉讼权利方面。本文认为 ,DSU应该对第三方参加诉讼的方式及其享有的诉讼权利做出明确规定 ,以更有效地发挥第三方参加诉讼制度的作用     

Legal Professionalism and International Criminal Proceedings

In criminal practice before international tribunals, the boundariesbetween lack of professionalism (serious misconduct) by prosecutionand taking an erroneous position on the law (procedural error)are particularly blurred, if only because the backgrounds andexpectations of all persons involved in the proceedings areprofoundly different and the playing field is still insufficientlydefined. This is illustrated by the Furundija case brought beforean International Criminal Tribunal for the former Yugoslavia(ICTY) Trial Chamber in 1998. In that case the Chamber heldthat the prosecution, by failing to disclose a document to thedefence, had both engaged in serious misconduct and made a seriousprocedural error. Instead, the Lord Advocate and the Crown Agentof Scotland, later consulted by the ICTY Prosecutor, concludedthat there had only been an error of judgment. National caselaw, for instance that of Canadian courts, makes it clear thata good faith decision not to disclose a document, made in theexercise of professional judgment on a difficult and novel issue,may constitute an error of judgment, but certainly does notamount to misconduct.     

Markem v Zipher--the Court of Appeal provides guidance on entitlement proceedings

Legal and practical context. The Markem v Zipher Court of Appealjudgment provides useful guidance on patent entitlement proceedingsand, more generally, on the conduct of litigation. Key points. (i) Patent entitlement. To bring an entitlementaction under sections 8, 12, and 37 a party must invoke a breachof some rule of law. Validity is only relevant in entitlementproceedings where a patent or part of it is clearly and unarguablyinvalid. A claim-by-claim approach is not appropriate in proceedingsunder sections 8, 12, and 37 and ‘invention’ inthese sections refers to information in the specification. Theproper approach to entitlement should be to identify who contributedto the invention and determine whether he has any rights tothe invention. (ii) Litigation generally. A witness should be cross-examinedas to the truthfulness of his evidence whenever a party wishesto challenge that evidence. Where a party has more than onecause of action relating to the same factual background, considerationshould be given to bringing all causes of action in the sameproceedings to avoid a future claim being struck out for abuseof process. Practical significance. This case highlights the importanceof a properly pleaded case and of the ongoing need to reviewthe case strategy throughout proceedings.     

The Darfur Report and Genocidal Intent

The author argues that the Commission of Inquiry on Darfur,in excluding any genocidal intent in the Government authoritiesof the Sudan, while leaving open the possibility for individualstate officials or members of militias to entertain such intent,did not duly take into account the various views on genocidalintent put forward in legal literature. In the author's opinion,genocide — typically, that is, for all practical purposes— requires a collective activity of a group, state orentity — activity in which individual perpetrators participate.As for the genocidal intent of individual perpetrators —in this typical scenario, according to the author — oneshould distinguish between (i) the view, upheld by the InternationalCriminal Tribunal for the former Yugoslavia (ICTY) and the InternationalCriminal Tribunal for Rwanda (ICTR), as well as the Commissionof Inquiry, that such intent is the aim physically to destroya protected group, and (ii) the more correct view that suchintent consists of the individual's (a) knowledge of a genocidalcampaign and (b) at least dolus eventualis as regards the atleast partial destruction of a protected group. This legal constructionof genocidal intent does not, however, lead to conclusions substantiallydifferent from those reached by the Commission of Inquiry withregard to the mental attitude of the Sudanese Government andmilitias: as they did not act pursuant to a collective goalto destroy a protected group, no genocidal intent could materialize.However, contrary to the Commission's conclusions, it followsfrom this proposition that no genocidal intent could be foundeither if, in some instances, single individuals were held tohave acted with the desire to see the protected group destroyed.For, in this event, the two requirements for individual genocidalintent would be lacking, namely knowledge of a genocidal campaign(on the premise that no such campaign was carried out), anda fortiori dolus eventualis.     

Protecting Ohio's Children: Ohio Juvenile Court Jurisdiction to Prevent Nonparty Interference in the Protection of the Best Interest of a Child

Ohio Rule of Juvenile Procedure 2(Y) allows juvenile courts to do what other courts cannot: designate additional parties to an action, allowing juvenile courts to better accomplish their statutory purpose of pursuing the best interests of children. However, sometimes this can lead to confusion about juvenile courts’ actions to protect children, especially when courts invoke Rule 2(Y) to stop interference with proceedings. This article will examine the historical foundations of Ohio's juvenile courts, the unique authority that they possess, and the conflicts that can arise due to interference with juvenile court proceedings. Ohio's juvenile courts have unique authority, and they can use that authority in a way that does not conflict with constitutional rights, while still working to protect the interests of children.     

论内地与香港特区间刑事诉讼转移制度的构建

针对同一起跨境犯罪,内地与香港特区在双方根据各自刑事法律均享有刑事管辖权,且均已启动刑事诉讼程序时,可进行区际刑事诉讼转移,即就该案件刑事管辖权的实际行使达成共识,由一方来行使刑事管辖权,对犯罪予以追究,他方承认实际管辖方所做出的刑事判决。在"一国两制"原则的指导下,中国内地与香港特区间开展刑事诉讼转移的刑事司法合作活动,须遵循"双重犯罪原则"、"有限的犯罪地管辖原则"和"一事不二审原则"。内地与香港特区刑事诉讼转移制度的构建,可以从包括原则、条件、程序和刑事诉讼转移的拒绝4个方面入手予以考虑。     

第三人撤销之诉的原告适格

考察我国案外人申请再审的实践可以发现,我国法院并不接受判决效力相对性原则,不能以此为据反对引入第三人撤销之诉,更不能以此作为分析第三人撤销之诉原告适格的出发点。尽管立法者希望通过第三人撤销之诉规制虚假诉讼、恶意诉讼,但从制度自身的机理出发,将该制度的目的界定为"为受生效裁判不利影响的第三人提供实体救济"更妥当。以此为基点,在对待第三人撤销之诉的原告适格问题上,应以2012年民事诉讼法第56条第3款规定的必备要件为重点,对于第1、2款规定的前提性要件,则采相对宽容的审查标准。对于有独立请求权的第三人,可将原告适格的标准界定为"对当事人争议的诉讼标的主张实体权利的人";对于无独立请求权的第三人,则采相对宽松的一般标准,不适用最高人民法院针对通知参加诉讼第三人的限制性规定。考虑到理论的周延性,必要共同诉讼人不宜作为第三人撤销之诉的适格原告。至于受生效裁判不利影响的一般债权人,较稳健的做法是诉诸实体法,通过援引民法通则第58条、合同法第52条或者合同法第74条,赋予相关债权人第三人撤销之诉的原告适格。     

內地法院協助香港仲裁進行保全——仲裁臨時措施與內地法院保全的比較

2019年10月1日,《關於內地與香港特別行政區法院就仲裁程序相互協助保全的安排》(以下簡稱《保全安排》)正式生效:在此之前.香港仲裁程序的當事人如果希望針對內地的當事人獲得臨時救濟.在很大程度上要依賴仲裁規則賦予仲裁庭及/或緊急仲裁員的作出臨時措施的權力;從此以後.當事人則可以在中國大陸法院申請保全措施(包括財產保全、證據保全和行為保全)。     

The Design of International Agreements

States entering into international agreements have at theirdisposal several tools to enhance the strength and credibilityof their commitments, including the ability to make the agreementa formal treaty rather than soft law, provide for mandatorydispute resolution procedures, and establish monitoring mechanisms.Each of these strategies – referred to as ‘designelements’ – increases the costs associated withthe violation of an agreement and, therefore, the probabilityof compliance. Yet even a passing familiarity with internationalagreements makes it clear that states routinely fail to includethese design elements in their agreements. This article explainswhy rational states sometimes prefer to draft their agreementsin such a way as to make them less credible and, therefore,more easily violated. In contrast to domestic law, where contractualviolations are sanctioned through zero-sum payments from thebreaching party to the breached-against party, sanctions forviolations of international agreements are not zero-sum. Tothe extent that sanctions exist, they almost always representa net loss to the parties. For example, a reputational lossfelt by the violating party yields little or no offsetting benefitto its counter-party. When entering into an agreement, then,the parties take into account the possibility of a violationand recognize that if it takes place, the net loss to the partieswill be larger if credibility-enhancing measures are in place.In other words, the design elements offer a benefit in the formof greater compliance, but do so by increasing the cost to theparties in the event of a violation. When deciding which designelements to include, the parties must then balance the benefitsof increased compliance against the costs triggered in the eventof a violation.     

War Crimes Prosecution in Bosnia and Herzegovina (1992-2002): An Analysis through the Jurisprudence of the Human Rights Chamber

The authors examine the efforts to bring persons suspected ofwar crimes committed during the 1992–1995 war in Bosniaand Herzegovina (BiH) to justice before the national judiciary.The analysis is based on the case law of the Human Rights Chamberfor BiH, which from 1996–2003 was the highest court competentto adjudicate violations of human rights in post-war BiH. TheChamber heard complaints linked to war-time atrocities fromtwo main perspectives: (i) that of persons put on trial forwar crimes and (ii) the perspective of the relatives of war-crimesvictims complaining about the failure to investigate and prosecute.The Chamber cases establish that (a) the few prosecutions whichtook place were nearly exclusively directed against suspectsbelonging to the war-time adversary, (b) the authorities failedto comply with the Rules of the Road (a procedure put in placeto enable the International Criminal Tribunal for the formerYugoslavia (ICTY) to supervise Bosnian war-crimes prosecutions)and (c) suspects were often severely ill-treated to extort confessionsand denied a fair trial. The rule, however, was the lack ofany investigatory or prosecutorial action, with the exceptionof the so-called ‘ethnically mixed’ Cantons of theFederation of BiH, where proceedings were sometimes initiatedbut failed to yield an appreciable outcome. The authors discussthree reasons for the poor record: (i) ethnic bias among theauthorities, (ii) disempowerment and passivity of the victimsand (iii) failure to enact legislation that would give effectto and clarify the BiH side of the obligation to exercise jurisdictionconcurrently with the ICTY. They finally set forth some suggestionson lessons to be learned for future attempts to bring justiceto a war-torn society by the concurrent exercise of criminaljurisdiction by an international court and the judiciary ofthe country in transition.     

Should the Principle of Ne Bis in Idem also Be Taken into Consideration? A Response to Yarwood and Dold

This note responds to an earlier article and argues that theprinciple of ne bis in idemshould be taken into considerationin deciding whether the International Criminal Tribunal forRwanda should refer a case to a national government for prosecution.     

美国行政程序证据规则分析

美国行政程序证据规则独立于民事和刑事诉讼证据规则。1946年联邦行政程序法对行政程序证据规则作出原则规定,联邦法院一系列判例丰富和发展了行政程序证据规则。行政官员裁决案件不受联邦证据规则约束,不受传闻证据规则约束,但须符合实质证据规则的要求,受案卷排他原则约束。行政程序中提供证据是当事人的权利,也是当事人的责任,除法律另有规定外,任何证据都可接受。行政程序证明责任分配原则采用"谁主张谁举证"。     

Safeguarding Access to Justice in the Age of the Online Court

In 2016 Her Majesty's Courts and Tribunals Service embarked on a significant modernisation programme with a view to developing online courts. In pursuit of this ambition the Courts and Tribunals (Online Procedure) Bill seeks to introduce new procedural rules to govern the online jurisdiction, giving the Lord Chancellor and an Online Procedure Rule Committee the power to mandate which proceedings will be conducted online and what assistance will be provided to users. In this study we analyse survey data and case decisions to highlight the importance of channel plurality and digital support in light of the shift to online courts. Our findings identify the groups most at risk of digital exclusion, and the expectations the judiciary sets in relation to internet access, capability, and the design of online systems. We conclude by detailing what our findings mean for safeguarding access to justice in the digital age.