Liberal Values in International Criminal Law: A Critique of Erdemovic

Using the Erdemovi decision as its starting point, the articleexamines the philosophical foundations of international criminallaw. It asserts that international criminal law, properly understood,represents a liberal legal system, emphasizing the rights ofthe accused over the interests of the prosecution or the goalsof international peace and security. Using the work of RonaldDworkin, it argues that international jurists should apply principlesthat invoke a respect for human rights and individual autonomyover ‘policy’. Thus, it argues that the reasoningof the Appeals Chamber of the International Criminal Tribunalfor the former Yugoslavia was flawed when it determined thatduress did not constitute a complete defence in Erdemovi.     

Compromising the Authority of International Criminal Justice: How Vojislav Seselj Runs His Trial

eelj's conduct continues to cause major problems to the InternationalCriminal Tribunal for the former Yugoslavia. The approach ofboth the Trial Chamber and the Appeals Chamber to the accused'shunger strike is a matter of serious concern. Especially theAppeals Chamber's decision leaves one with the impression thateelj is running his own trial. This note offers a critical analysisof the Trial Chamber's and Appeals Chamber's responses to theaccused's hunger strike and their damaging implications.     

The Problem of Self-Representation at International Criminal Tribunals: Striking a Balance between Fairness and Effectiveness

The principle that the right to self-representation is not absolute,as established by international criminal tribunals, raises difficultquestions of application that are still being worked out inthe jurisprudence. There has been a recent shift in focus, fromestablishing the modalities for the exercise of the right inthe early stages of the Miloevi trial to establishing the circumstancesin which the right may be qualified. This article examines recentdevelopments and considers where the threshold for revokingor qualifying the right to self-representation lies, how thevarious modes of court imposed representation may be synthesizedand what the standard is for counsel who is representing anuncooperative accused.     

The Proper Limits of Individual Responsibility under the Doctrine of Joint Criminal Enterprise

Joint criminal enterprise (JCE) as a mode of liability in internationalcriminal law is a concept widely upheld by international caselaw. It has, however, been harshly attacked by commentators,particularly with regard to what has come to be known as the‘third category’ of the notion, that of liabilitybased on foreseeability and the voluntary taking of the riskthat a crime outside the common plan or enterprise be perpetrated.This author considers that while most criticisms are off themark, at least two are pertinent: (i) that the InternationalCriminal Tribunal for the former Yugoslavia (ICTY) Appeals Chamberin Tadi (1999) was wrong in indiscriminately using terminologytypical of both the civil law and common law tradition, and(ii) that the foreseeability standard, being somewhat looseas a penal law category of culpability and causation, needssome qualification or precision. Generally speaking, the notionof JCE needs some tightening up. For instance, in Kvoka, anICTY Trial Chamber rightly stressed that the contribution ofa participant in a common criminal plan must be ‘substantial’(the Appeals Chamber, however, disagreed to some extent in thesame case). Furthermore, with specific regard to the third categoryof JCE, the author, after setting out the social and legal foundationsof the foreseeability standard and the motivations behind itsacceptance in international criminal law, suggests various waysof qualifying and straightening it out. One of them could liein assigning to the ‘primary offender’ (i.e. theperson who, in addition to committing the concerted crimes,also perpetrates a crime not part of the common plan or purpose)liability for all the crimes involved, while charging the ‘secondaryoffender’ with liability for a lesser crime, wheneverthis is legally possible. The author then suggests, contraryto a 2004 decision of the ICTY Appeals Chamber in Branin, thatthe third category of JCE may not be admissible when the crimeother than that agreed upon requires special intent (this appliesto genocide, persecution as a crime against humanity, and aggression).In such cases, the other participants in JCE could only be chargedwith aiding and abetting the crimes committed by the ‘primaryoffender’ if the requisite conditions for aiding and abettingdo exist. The author then suggests that the view propoundedin 2004 by an ICTY Trial Chamber in Branin is sound, namelythat the general notion of JCE may not be resorted to when thephysical perpetrators of the crimes charged were not part ofthe criminal plan or agreement, but rather committed the crimesunaware that a plan or agreement had been entered into by anothergroup of persons. In conclusion, he contends that this qualifiednotion of JCE, in addition to being provided for in customaryinternational law, does not appear to be inconsistent with abroad interpretation of the provision of the ICC Statute governingindividual criminal responsibility, that is, Article 25, inparticular 25(3)(d).     

The Reality of Conducting a War Crimes Trial

Since proceedings at the international criminal tribunals areessentially adversarial in nature they inevitably are party-led,rather than judge-led. The inherent challenges of conductinga large-scale war crimes trial are further exacerbated whenthe accused chooses to represent himself. However, the authorbelieves the bench has the opportunity, by robust applicationof a number of rules already available, to exert considerableinfluence over the course of events at all stages of proceedings,thereby ensuring fair and expeditious war crimes trials. Thereal benefits of the judicial process are to be found in thesuccessful prosecution of the guilty and exoneration of theinnocent: in view of the massive size of cases before the tribunals,that is only achievable by judicial control and focus on thereal issues in dispute, even if this implies that the tribunalscan no longer satisfy some of the original expectations withwhich they were set up. The author identifies a number of practicalissues, to which judges at tribunals should always be alert,and illustrates some by reference to events during the trialof Slobodan Miloevi, as well as current proceedings before theICTY.     

Comment on Forni's "Using Stationarity Tests in Antitrust Market Definition"

Economic analyses of prospective mergers must typically be undertakenwith limited data. Often prices are the only available data,so it is tempting to use their time series alone. Certainly,simple and robust measures of the extent of the market basedon limited data would aid merger analysis immensely. However,a couple of examples show how Forni's suggested methodologycan lead one astray. Consider a differentiated products market with demand systemln D_i(p_i, p_j) = 1 – ln p_i + ln p_j, i, j = 1, 2, i j,with associated constant marginal costs c₁ = _t c, c₂     

California clarifies its posthumous right of publicity statute

The State of California has now clarified and confirmed thatits 23-year-old posthumous publicity rights statute (Civil Code3344.1, formerly 990) applies to deceased individuals who diedbefore this law's original effective date of 1 January 1985,and that these rights may pass to beneficiaries designated inthe residuary clause of such a decedent's will.     

Philip Grubb

Dr Philip Grubb, the distinguished patent specialist and authorfound time to answer questions put to him by JIPLP. How did you first become interested in IP? In 1971, I was working as a research scientist at the CorporateResearch Laboratory of ICI in Runcorn, looking for alternativesto a lifetime career in research. A job in the small patentdepartment there was advertised internally. I considered thisbut thought ‘patentssounds difficult, you have to study     

Some Considerations on Faces of Justice by a 'Non-Specialist'

The author examines the well-known book by Mirjan Damaka aswell as other more recent books and writings of the distinguishedauthor against the specific background of the Italian experiencein reforming its system of criminal procedure with a view tocommenting upon sensitive issues in current international criminalproceedings. Three key factors in assessing the ‘real’nature of a procedural system are examined: (i) the role ofjudges in the proceedings; (ii) the rules on evidence and (iii)the duty to render reasoned decisions. Subsequently, the authortackles the issue of self-representation in international criminaljustice, in light of Damaka's categories (conflict-solving v.policy-implementing) and of the difficulties in transposingthem to the international level. Finally, the author warns thatthe analysis of international criminal justice should not beconfined in over-rigid models. The overriding concern must beto harmonize the ‘fair trial’ model with sensitivityto certain objectives of justice that cannot be possible objectsof compromise (as they may be where judicial authority operatespurely as arbiter of a dispute).     

The ICC -- Quo Vadis?

The International Criminal Court (ICC) has had to face manyobjective difficulties in its initial stage. The self-referralsby Uganda and the Democratic Republic of Congo (DRC) pose problems.As for Uganda, the unsealing of the indictments is an achievementfor the Court; however, the rhetorical conflict between thereferring government and the ICC, the continued insecurity innorthern Uganda and the fact that the accused commanders arenot in the custody of the Ugandan authorities highlight thedependence of the ICC on the cooperation of national governments.As for the DRC, the transfer to The Hague of one of the indictees,Lubanga, is significant. Supporters of the ICC hope that thistrial will help to ease many doubts about the direction of theCourt, as the Tadi case was able to do for the InternationalCriminal Tribunal for the former Yugoslavia (ICTY). The SecurityCouncil referral of Darfur is a mixed blessing, on a numberof grounds. However, the posture of Sudanese authorities andthe worsening of the situation in Darfur and eastern Chad clearlyindicate that the ICC does not yet have a deterrence capability.     

Three Conceptual Problems with the Doctrine of Joint Criminal Enterprise

This article dissects the Tadi court's argument for findingthe doctrine of joint criminal enterprise in the ICTY Statute.The key arguments are identified and each are found to be eitherproblematic or insufficient to deduce the doctrine from thestatute: the object and purpose of the statute to punish majorwar criminals, the inherently collective nature of war crimesand genocide and the conviction of war criminals for joint enterprisesin World War II cases. The author criticizes this over-relianceon international case law and the insufficient attention tothe language of criminal statutes when interpreting conspiracydoctrines. The result of these mistakes is a doctrine of jointcriminal enterprise that fails to offer a sufficiently nuancedtreatment of intentionality, foreseeability and culpability.Specifically, the doctrine in its current form suffers fromthree conceptual deficiencies: (1) the mistaken attributionof criminal liability for contributors who do not intend tofurther the criminal purpose of the enterprise, (2) the impositionof criminal liability for the foreseeable acts of one's co-conspiratorsand (3) the mistaken claim that all members of a joint enterpriseare equally culpable for the actions of its members. The authorconcludes by briefly suggesting amendments to the Rome Statuteto rectify these deficiencies.     

The US 'safe harbour' for research--some loose ends tightened

In a unanimous decision the US Supreme Court has held that theFederal Circuit Court construed the ‘safe harbour’exemption in 35 USC 271(e)(1) too narrowly in holding that Merck'sresearch activities did not qualify for protection.     

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.     

Dilution in the US, Europe, and beyond: international obligations and basic definitions

Legal context. The efficacy of trade mark dilution as a causeof action has been cast into doubt by the Supreme Court's actualdilution standard. However, Congress is currently consideringthe Trademark Dilution Revision Act 2005, removing the actualdilution standard and resolving other difficulties under thepresent Lanham Act 43(c). This should breathe new life intoblurring and tarnishment. It should also be recalled that theEU already has strong laws against dilution and unfair advantage. Key points. This article identifies international dilution obligationsin order to determine (in Part II) whether the US and EU arecompliant. It identifies problems under the present US dilutionlaw and the solutions offered by the Revision Act. It comparesthe US proposals with EU dilution protection to determiningwhat the two jurisdictions have to learn from each other. Thistheme will be continued in the next part of this article, whichfocuses specifically on blurring/detriment to distinctive character. Practical significance. The introduction of new US legislationwill make successful dilution claims easier and will increasethe frequency of actions under 43(c). It is vital that trademark lawyers are familiar with the changes. At the same time,it should be remembered that many of the same outcomes can beachieved under the current European legislative provisions.To the extent that the jurisdictions do not live up to theirinternational dilution obligations, there is scope for proprietorsto lobby for even stronger protection.     

Amanda Michaels

A barrister at Hogarth Chambers, Amanda Michaels has recentlybeen appointed by the Lord Chancellor as an Appointed Personunder the Trade Marks Act 1994. Amanda is also the author ofA Practical Guide to Trade Mark Law (Sweet & Maxwell). Hereshe answers some questions put to her by JIPLP     

In Person

This month JIPLP interviews Gonzalo Ulloa y Suelves, a well-knownpersonality not only with the Spanish and European intellectualproperty professions, but also internationally. Gonzalo graduatedwith a Master of Law degree from the Universidad de Madrid     

Intellectual Property High Court of Japan denies registration of trade mark for market leading multi-million dollar beer product on non-distinctive grounds

The Intellectual Property High Court of Japan's (IPHCJ) recent Honnama trade mark decisionillustrates the difficulties of registering an inherently non-distinctivemark and the perils of relying on secondary meaning evidenceof use that is not identical with the mark in the trade markapplication.     

The Requirement of an 'Express Agreement' for Joint Criminal Enterprise Liability: A Critique of Brdanin

The mode of liability known as joint criminal enterprise (JCE)has emerged in the case law of the International Criminal Tribunalfor the former Yugoslavia (ICTY) as a means of assigning criminalliability to individuals for activities carried out by a collective.As a result, the doctrine must be carefully defined so as notto allow it to extend a defendant's liability beyond the appropriatelimits of individual criminal responsibility. In this regard,a recent ICTY Trial Chamber decision in Branin held that, wherea defendant is not alleged to have participated in the physicalperpetration of the crimes charged but to have contributed insome other way to the commission of the crimes by a group, theprosecution must demonstrate that the defendant entered intoan express agreement with the physical perpetrators to committhe crimes charged. The author argues that this ‘expressagreement requirement’ is both conceptually unsound andpractically unhelpful. Conceptually, it would be inconsistentwith core principles of JCE liability to require an expressagreement between a defendant and the physical perpetratorsof crimes, at least in circumstances in which it is allegedthat there existed a structure of two or more overlapping JCEs.Moreover, because this structure allows the accused and thephysical perpetrators to be operating in two separate JCEs,they need not even share a common criminal purpose. On a practicallevel, arguably in a ‘system-criminality’ contextsuch as the one that developed in the former Yugoslavia duringthe time period in question, the organizers of criminal activityare unlikely to enter into express criminal agreements withthose who physically carry out crimes, because existing organizedhierarchies provide much more efficient mechanisms by whichleaders are able to ensure the realization of their criminalplans.     

A very short guide to an awful lot

Harmonised Trade Mark Law in Europe By Ulrich Hildebrandt 2005,Cologne: Carl Heymanns Verlag Price: 48, Hardback, ISBN: 3-452-25922-6. pp.150   Dr Ulrich Hildebrandt, a lawyer in private practice in Berlinand a lecturer at the Heinrich-Heine-University in Düsseldorf,has had an interesting and useful idea. In this book he hasproduced a compilation of the case law of the European Courtof Justice interpreting the Council Directive 89/104 to approximatethe laws of the Member States relating to trade marks (includingdecisions