攻击联合国人员和有关人员犯罪的国际法控制

长期以来,国际社会一直致力于通过立法来惩治针对联合国人员和有关人员的恐怖袭击活动。1998年生效的《国际刑事法院罗马规约》将攻击联合国人员和有关人员的罪行纳入法院管辖范围。2003年《安理会第1502号决议》进一步完善了规约的规定,并要求各国也在国内立法惩处这类犯罪。     

National Implementation of ICC Crimes: Impact on National Jurisdictions and the ICC

The national implementation of the International Criminal Court(ICC) Statute has proven to be more difficult than initiallyanticipated. Most States Parties have either not incorporatedthe ICC crimes into their domestic laws, or they have done sousing different forms of wording. This article examines theimplementing legislation of several states to demonstrate howinadequate implementation of the ICC crimes might prevent statesfrom exercising their primary jurisdiction in criminal proceedings.In turn, this might affect the admissibility of a case beforethe ICC. To this end, this article also explores whether flawedimplementation of the ICC crimes amounts to unwillingness orinability of the state to genuinely prosecute. This articleargues that implementation of the Statute is of paramount importanceto the future of the ICC.     

The Devilish Details: Key Legal Issues in the 2015 Climate Negotiations

The ongoing UN negotiations for a 2015 climate agreement have yet to resolve two fundamental legal issues on which its effectiveness will hinge. The first is the precise legal form this agreement will take. Parties had agreed to work towards a ‘protocol, another legal instrument or an agreed outcome with legal force under the Convention applicable to all Parties’. This leaves scope for a range of possible legal forms, only some of which are legally binding. Second, they have yet to determine the legal nature of the ‘nationally determined contributions’ submitted by Parties. This article addresses these two critical issues: on ‘legal form’, it identifies the instruments that could form part of the Paris package, focussing on their legal status, significance and influence; and on the ‘legal nature’ of nationally determined contributions, it considers their nature and scope, the range of options for ‘housing’ these contributions as well as their relationship to the core 2015 agreement.     

When Worlds Collide: Enforcing United Nations Security Council Asset Freezes in the EU Legal Order

Asset freezes are since 2000 being applied by the United Nations (UN) Security Council (SC) to non-state actors. This came about as a 'mutation' of the sanctions program initiated by Resolutions 1267 (1999), 1333 (2000) and 1390 (2002): currently the targets are only supected terrorists or terrorism financiers.
This 'mutation' has created perplexities and problems, namely for the EU, which enforces UN SC Resolutions by a combination of first and second pillar methods. The main problem concerns issues of fundamental rights, currently being litigated.
The debate on the compatibility of the current practice of UN SC asset freezing within EU law takes place amidst a fundamental lack of clarity as to the exact purposes and operational objectives of such freezes. It is argued that this practice amounts to an ad hoc (para-)criminal procedure measure, enacted by political bodies rather than courts, and without judicial oversight.
The current UN SC practice of asset freezing against non-state actors breaches the right to judicial review, as well as the presumption of innocence. If this practice it is to continue at all, methods that make it fully compatible with the rule of law must be adopted. Especially, their renewal ad aeternum should not be possible.     

A Turning Point in International Efforts to Apprehend War Criminals: The UN Mandates Taylor's Arrest in Liberia

With Resolution 1638 (2005), the UN Security Council requestedthe peacekeeping mission in Liberia (UNMIL) to apprehend anddetain former President Charles Taylor in the event of his returnto Liberia, and to transfer him to the Special Court for SierraLeone (SCSL). This new task assigned to a UN peacekeeping missionis a significant departure from previous practice. Althoughthere are a few precedents of military troops acting withinthe framework of UN missions which have been authorized to arrestwar criminals, the conferral of an explicit and clear mandateconstitutes a welcome novelty. This resolution is indicativeof the trend emerging in the UN Security Council's practiceto combat impunity by enhancing the rule of law and promotinginternational criminal justice; in particular, it is notablebecause it evinces the Security Council's willingness to strengthencooperation with international criminal tribunals. The examinationof the precedents (UNOSOM II: Second United Nations Operationin Somalia and IFOR/SFOR, the NATO-led multinational force deployedin Bosnia-Herzegovina) is useful for the discussion of legalissues raised by Resolution 1638. The task of arresting a warcriminal can easily be reconciled with the non-coercive natureof UN peacekeeping operations, provided that the consent ofall parties involved is secured. Interestingly, UNMIL troopsare not only authorized but also obliged to implement Resolution1638. After completion of this article, on 29 March 2006, Taylor wasarrested while trying to flee Nigeria. He was put on a jet boundfor Liberia, where at the airport he was taken into custodyby UNMIL peacekeepers and flown by UN helicopter to the SCSLdetention facilities at Freetown, Sierra Leone.     

国家与国际刑事法院的国际合作与司法协助义务述评

国际刑事法院是否成功的关键取决于《罗马规约》的缔约国和国际社会与之真诚的国际合作与司法协助。反之 ,国家也应根据国际法的基本原则善意履行其自愿承担的义务 ,向国际刑事法院提供国际合作与司法协助。本文通过阐述《罗马规约》有关国家与国际刑事法院的国际合作与司法协助方面的实体性和程序性规定 ,说明国家在国际刑事法院调查、起诉和惩治国际社会关注的最严重的国际犯罪中的作用和义务     

The nature, origin and impact of legally binding consequences: the case of the climate regime

The Marrakesh Accords provide a detailed compliance system for the Kyoto Protocol. An innovative feature of this system is an Enforcement Branch authorized to apply punitive measures or “consequences” in the second commitment period to Annex I Parties that have been found to be in non-compliance in the first commitment period. However, even after the latest Conference of the Parties (COP) to the United Nations Framework Convention on Climate Change (UNFCCC), COP-11, and the first COP serving as the meeting of the Parties to the Kyoto Protocol, COP/MOP-1, it is not yet clear whether these consequences will be legally binding. The purpose of this paper is three-fold. First, we examine the legal nature of the punitive consequences embedded in the Marrakesh Accords. Second, we discuss potential motives for making these consequences legally binding. We point out that one such motive is that their implementation requires cooperation by the Party that is in non-compliance. In this regard, Kyotoȁ9s compliance system differs from other international compliance systems equipped with punitive consequences, such as those of the WTO and the UN. Finally, we consider whether making the punitive consequences legally binding is likely to make a difference. The conclusion, which should be of interest to both academic researchers and the policy community, is that the legal status of the consequences is likely to have only a modest effect on compliance levels. A country that deliberately fails to abide by other legally binding commitments under the Kyoto Protocol is also likely to resist the application of punitive consequences, regardless of whether these consequences are made legally binding or not.     

冷战后联合国维和行动发展评析

联合国维和行动是联合国维护世界和平与安全的重要手段.在美苏对峙的冷战时期,联合国维和行动的发展受到极大的抑制.冷战结束后,新的国际政治与安全形势为联合国维和行动的开展提供了前提条件和机遇,国际社会对维和行动提出了新的要求,因此联合国维和行动得到了迅速发展并表现出许多新的特点和发展趋势.但是,由于国际环境的变化和日趋复杂,冷战后的联合国维和行动也面临着一些问题与挑战,这些问题和挑战对联合国维和行动的未来发展将产生重要影响.     

Is the ICC Still Having Teething Problems?

The world community had, and still has, high expectations forthe impartial rendering of justice by the International CriminalCourt (ICC) which, unlike other international criminal tribunals,bears a universal scope and is charged with administering justicein a non-selective manner. However, the first situations broughtbefore the Court and their handling by the Prosecutor give riseto a number of concerns. The practice of self-referrals by statesinvolved in civil wars, who tend to accuse their rebel enemies,may cause misgivings. In addition, the overly cautious attitudeof the Prosecutor with regard to the situation in Darfur, referredto him by the UN Security Council, cannot fail to baffle allthose who take the cause of effective and expeditious justiceto heart.     

Reflections on the International Legality of the Special Tribunal for Lebanon

This article addresses legal problems posed by Security CouncilResolution 1757 of 30 May 2007, establishing the Special Tribunalfor Lebanon (‘STL’). After describing the historicalbackground of the resolution (section 1) and the plan to establishthe STL as a treaty-based institution (section 2), the paperturns to an analysis of Resolution 1757 (section 3). The authorquestions whether the Council intended to bring the Lebanon-UNagreement into force as an international treaty, and holds thatthe UN Charter does not give the Council a power to unilaterallyimpose on a member state an obligation in the form of a treaty.The author argues that in Resolution 1757 the Council did notsubstitute a Chapter VII decision for the missing ratificationof the agreement by Lebanon, but instead established the STLby making the provisions of the agreement negotiated with Lebanonan integral part of a Chapter VII resolution. Section 4 thenquestions whether the Council was entitled to procure Lebanon'sconsent to be bound by a treaty by threatening unilaterallyto put those provisions into effect through a Chapter VII resolution.After discussing certain rules of the law of treaties concerningthe coercion of a state, the author concludes that it is notthat law but the UN Charter itself that prohibits the Councilfrom exerting pressure on a member state in order to make thatstate ratify a treaty.     

Reclaiming Fundamental Principles of Criminal Law in the Darfur Case

According to the authors, the Report of the UN Commission ofInquiry on Darfur and the Security Council referral of the situationin Darfur to the International Criminal Court (ICC) bring tolight two serious deficiencies of the ICC Statute and, moregenerally, international criminal law: (i) the systematic ambiguitybetween collective responsibility (i.e. the responsibility ofthe whole state) and criminal liability of individuals, on whichcurrent international criminal law is grounded, and (ii) thefailure of the ICC Statute fully to comply with the principleof legality. The first deficiency is illustrated by highlightingthe notions of genocide and genocidal intent, as well as thatof joint criminal enterprise. The second is exposed by drawingattention to the uncertainties and ambiguities surrounding suchnotions as recklessness and dolus eventualis, and in additionto the frequent reliance in both international case law andthe legal literature on customary international law and looseconcepts such as proportionality. The authors finally pointout that if the ICC tries to operate as a real criminal courtunder the rule of law and shows sensitivity to the rights andinterests of the accused, US fears of politicized prosecutionwill diminish.     

The Darfur Commission as a Model for Future Responses to Crisis Situations

The various special procedures so far set up by the Commissionon Human Rights (CHR) to investigate serious violations of humanrights are very different from what can be achieved by a commissionof inquiry. There is almost no comparison in terms of the scaleof resources, the expertise mobilized, the amount of detailcontained in the Commission's Report, the precision and weightof the legal analysis, and the consequent power of the finalproduct to galvanize both public opinion and inter-governmentalaction. The Darfur Commission may also serve to expand the bridgebeing built between the Commission of Human Rights and the SecurityCouncil (SC). The practice of appointing commissions of inquiryhas immense potential in that it can provide the type of specialistinput necessary if the human rights machinery and the SC areto form part of a continuum. Commissions of inquiry reportsmay contribute to promoting transparency and accountabilityin the work of the SC, since the Council, when determining whetheror not to take action in a human rights situation, has to respondto a carefully documented and a well argued analytical report.Finally, the establishment of such commissions to evaluate whetheror not a situation warrants referral to the ICC provides anappropriate filtering mechanism before the Council takes a decision.     

从苏丹情势分析国际刑事法院管辖权的补充性原则

联合国安理会向国际刑事法院的检察官提交的苏丹达尔富尔地区发生的情势,引发了非缔约国对国际刑事法院管辖权补充性的质疑。将达尔富尔的情势提交国际刑事法院,应由独立的机构判断苏丹政府“不愿意”和“不能”行使管辖权的客观证据。这样做,一方面为了充分支持安理会向检察官提交情势的行为;另一方面为了国际刑事法院审判工作的独立性和有效性吸引诸如中国和美国等司法制度健全的非缔约国批准《罗马规约》。中国虽然是非缔约国,但始终支持国际刑事法院的建立及其工作,并对国际刑事法院的审判活动采取一种审视态度。有理由相信,通过国际刑事法院建立的良好工作模式,如对达尔富尔公正有效的处理,以及在我国法律条件成熟的情况下,中国会成为《罗马规约》的缔约国。     

South Africa's Implementation of the ICC Statute: An African Example

In this article, the author analyses the most important provisionsof South Africa's Implementation of the Rome Statute of theInternational Criminal Court Act, 2002. In particular, attentionis given to the complex complementary scheme that is establishedunder the Act, including the jurisdictional bases under theAct for South African prosecution of war crimes, crimes againsthumanity and genocide; the substantive law that applies to anyprosecution of an ICC crime undertaken on South African soilpursuant to the Act; and the procedure to be followed in respectof such a prosecution. Other topics examined include the problemof immunities and amnesties in the South African context, andthe mechanisms devised by the Act to ensure South Africa's cooperationwith the ICC in respect of any investigation or prosecutionundertaken by the Court. The author concludes that the implementationAct is likely to serve as a meaningful example for other AfricanStates Parties in their efforts to domestically give effectto their obligations under the Rome Statute.     

China's Attitude Towards the ICC

Unlike the USA, China has few overseas military commitments,and therefore is not concerned that its troops may one day comeunder International Criminal Court (ICC) jurisdiction. Moreover,China is not in a position to pressurize other countries tosign bilateral agreements as the USA has done. Whether or notChina eventually accedes to the Rome Statute, it cannot avoidthe jurisdiction of the ICC in other parts of the world. Thereare five main reasons for China's opposition to the ICC. First,its jurisdiction is not based on the principle of voluntaryacceptance; furthermore, complementarity gives the ICC the powerto judge whether a state is able or willing to conduct propertrials of its own nationals. Secondly, also war crimes in internalarmed conflicts fall under the jurisdiction of the ICC. Thirdly,crimes against humanity are prohibited in time of peace as well.Fourthly, the inclusion of the crime of aggression within thejurisdiction of the ICC weakens the power of the UN SecurityCouncil. Fifthly, the proprio motu power of the Prosecutor maymake the ICC open to political influence. The authors try toshow how all these objections can be legally met and set fortha series of considerations that would make China's participationin the Court a welcome development in China's national and internationalinterests. They finally argue that the Chinese government shouldtake an open attitude, taking into consideration the Court'sactual performance, and should not, therefore, exclude the possibilityof acceding at an appropriate time to the ICC Statute.     

International criminal justice: reflections on the past and the future

While Nuremberg constitutes a watershed in the evolution of international law with its establishment of the fundamental principle of individual criminal responsibility under international law it has not left much else by way of precedent for the subsequent international criminal tribunals. The adoption of UN Security Council Resolution 827 establishing the International Criminal Tribunal for the Former Yugoslavia, and Resolution 955 (1994) establishing the International Criminal Tribunal for Rwanda, set the groundwork for a new model of hybrid tribunals, with the establishment of the Special Court for Sierra Leone in 2002, the Extraordinary Chambers in the Courts of Cambodia in 2006, and the Special Tribunal for Lebanon in 2007. Perhaps one of the greatest legacies of these ad hoc and hybrid courts and tribunals has been paving the way for the establishment of a permanent international criminal court. However, they have also brought about the development of international criminal law through judicial interpretation, elaborating, inter alia, the elements of the crime of genocide as detailed in the 1948 Genocide Convention, the judicial recognition of the concept of joint criminal enterprise and the principle that national arrangements for amnesties in respect of international crimes are no bar to prosecution for such crimes at an international tribunal. In view of the completion strategies of the ad hoc Tribunals, as well as of the SCSL, this article delves into some of their legacies and outlines some of the difficulties and challenges they have faced, while identifying areas of best practice in order for the newly‐operational International Criminal Court to avoid repeating the mistakes of the past or even reinventing new wheels.     

Early Reflections on Local Perceptions, Legitimacy and Legacy of the Special Tribunal for Lebanon

Resolution 1757 (2007) has come into force in challenging circumstancesin terms of Lebanese politics. At the time of writing, Lebanon'sgovernment is at a deadlock between two political alliancesknown as March 8 and March 14. While the latter has welcomedthe Resolution, the former has expressed reservations aboutthe impact of the Resolution's passage on Lebanese sovereignty.Further challenges to the legitimacy of the Special Tribunalfor Lebanon (‘STL’) are posed by (1) Lebanon's historicalcontext including its 15-year war followed by selective impunity;(2) the highly selective nature of the jurisdiction of the STLand (3) the political context and fears that the STL itselfwill act as an instrument for foreign powers. This article suggeststhat the UN and STL can address some of these legitimacy challengesthrough their operations, including the transparent selectionof judges and senior officials; attracting funding from a varietyof states; and effective outreach. Above all, the STL shouldbe differentiated from the other Tribunals. It should be seenas the logical next step to the International Independent InvestigativeCommission. In addition, the STL should strive to leave a lastinglegacy in Lebanon and in the field of international criminallaw.     

Security Council's Anti-terror Resolutions and their Implementation by Member States: An Overview

In the framework of the fight against international terrorismthe UN Security Council (SC) has adopted targeted sanctionsagainst individuals and corporate entities. Furthermore, ithas imposed on states a number of obligations of a general nature.The implementation of all these measures — some of whichbear on sensitive aspects of criminal law and procedure —is left to the Member States. This article attempts to providean overview of national implementation practices, based on thenational reports submitted by states pursuant to the relevantSC resolutions. Besides the many difficulties encountered bystates in implementing SC resolutions, the encroachment of anti-terrormeasures on human rights is a cause for concern. The currentattitude of the SC, which has integrated human rights considerationsinto the security concerns that inspire its action under ChapterVII of the Charter, should enhance the perception of legitimacyof its anti-terror policy and, arguably, improve the effectivenessof its measures.     

The Mavi Marmara Incident and the International Criminal Court

On 15 May 2013 the OTP announced that it was conducting a preliminary examination of the events surrounding Israel’s enforcement of its naval blockade against the Mavi Marmara on 31 May 2010 in order to determine whether a formal investigation into the incident should be opened. According to Article 53 of the Rome Statute, the OTP shall open a formal investigation where there is a reasonable basis to believe that (a) the ICC possesses temporal, territorial and subject-matter jurisdiction in relation to the situation, (b) it is admissible before the ICC and (c) that a formal investigation would not be contrary to the interests of justice. The application of this framework to the events that occurred on 31 May 2010 is difficult and complex, especially in regard as to whether the situation can be considered of sufficient gravity to warrant the ICC’s attention and whether any of the crimes enumerated in Article 5 of the Rome Statute have been committed. This notwithstanding, I argue that there is a reasonable basis to believe that these criteria are satisfied and therefore conclude by encouraging the OTP to open a formal investigation into the situation.     

民事执行担当研究--以执行程序中形式当事人的类型化适用为中心

申请执行的非实体权利归属主体构成执行程序的形式当事人,但执行当事人适格的判断,既涉及执行力的形式外观,也涉及实体正当性,需要结合适用类型予以限定,以避免对债务人双重执行。参照大陆法系"执行担当"的学说、判例以及我国实务情况,可以根据当事人、主文两项执行依据的记载要素加以判断:诉讼担当人申请执行原则上合法,股东代表诉讼的股东虽然可以启动执行,但无权受领给付;代表人诉讼的当事人执行被代表人利益目前并不适宜;对于让与未构成诉讼担当时的当事人申请执行,则可能丧失实体适格,但可以通过与受让人约定保留"收取"权能以补正。在"执行担当"与"承继执行"形成债权竞争关系时,须限定受让人举证权的同时完善诉讼救济。