The International Criminal Tribunal for the Former Yugoslavia: Judgements in 2005

The year of 2005 was a productive one for the InternationalCriminal Tribunal for the Former Yugoslavia (ICTY), which rendereda total of ten judgements. The present article, concentratingon the key facts of the case and on novel development in internationalcriminal and humanitarian law, reviews—in chronologicalorder—the judgements of the ICTY Trial Chambers and ofthe Appeals Chamber.     

The International Tribunal for the Law of the Sea: Activities in 2006

This paper gives an overview of the activities of the InternationalTribunal for the Law of the Sea in 2006, regarding organizationaldevelopments, administrative matters and judicial activitiesof the Tribunal.     

Constructing Achievement in the International Criminal Tribunal for the Former Yugoslavia (ICTY): A Corpus-Based Critical Discourse Analysis

The International Criminal Tribunal for Yugoslavia (ICTY) was established by the UN Security Council in 1993 to prosecute persons responsible for war crimes committed in the former Yugoslavia during the Balkan wars. As the first international war crimes tribunal since the Nuremburg and Tokyo tribunals set up after WWII, the ICTY has attracted immense interest among legal scholars since its inception, but has failed to garner the same level of attention from researchers in other disciplines, notably linguistics. This represents a significant research gap, as the Tribunal’s public discourse (notably its case law and Annual Reports) can open up interesting avenues of analysis to researchers of law, language, and legal discourse alike. On its official website, the Tribunal claims that it has “irreversibly changed the landscape of international humanitarian law” and lists six specific achievements: “Holding leaders accountable; bringing justice to victims; giving victims a voice; establishing the facts; developing international law and strengthening the rule of the law”. While a number of legal scholars have studied and critiqued the level of ‘achievement’ actually attained by the Tribunal against these metrics and others, of interest to linguists is the ways in which this work might be conveyed discursively. In this paper, we demonstrate how methods from the linguistic field of corpus-based critical discourse analysis can be utilised to explore the discursive construction of such achievements in the language of the ICTY.     

论卢旺达国际刑事法庭对国际刑法发展的贡献

卢旺达国际刑事法庭在1994年的建立和12年的审判实践经验为国际刑事法的发展作出了一定贡献.主要表现在:卢旺达国际刑事法庭是历史上首次建立专门审理非国际性武装冲突的国际刑事法庭;丰富了国际人道主义法的内容;扩大了对在非国际性武装冲突中犯罪的管辖权,进一步积累了国际刑事法院的审判经验,对国际刑法中的三大罪行的界定作出了新的阐释;推动了非洲国际法学的发展并在一定程度上促进了常设性国际刑事法院的建立.     

前南国际刑事法庭的创立及管辖原则

前南斯拉夫国际刑事法庭是联合国安理会针对前南斯拉夫武装冲突中严重违反国际人道主义法的行为而设立的国际特设法庭 ,该法庭不仅传承了纽伦堡和远东军事法庭的原则及审判精髓 ,而且在很大程度上延展了国际刑事审判的原则与理论 ,并未以后的国际刑事审判以及常设国际刑事审判机构的建构提供了可行性的先导模式     

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.     

Swaying the Hand of Justice: The Internal and External Dynamics of Regime Change at the International Criminal Tribunal for the Former Yugoslavia

This article develops a conflict approach for studying the field of international criminal law. Focusing on the International Criminal Tribunal for the Former Yugoslavia, we draw on Burawoy's (2003 ) elaboration of reflexive ethnography to determine how external political changes affect the work of an international legal institution. We explore how political frameworks of legal liberalism, ad hoc legalism, and legal exceptionalism result in internal office, organizational, and normative changes within this Tribunal, thereby linking national political transformations with the construction of the global. Drawing on rolling field interviews and a two-wave panel survey, we conclude that the claims to universals that underwrite transnational legal fields cannot be understood solely through an analysis of external political forces, but must be combined with attention to how these are refracted through internal organizational change within international institutions.     

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.     

Comparing the Comparable: 2006 Military Commissions v. the ICTY

Both the International Criminal Tribunal for the former Yugoslaviaand the US Military Commissions were set up to respond to extraordinaryjudicial challenges. But while the Yugoslav Tribunal has soughtto uphold internationally-recognized standards of human rights,the 2006 Military Commissions have amputated many of these rightsand created serious procedural impediments for defendants. Inso doing, the drafters of the 2006 Act have ignored a long andrespectable American legal tradition prevailing from Nurembergto the ICTY.     

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.     

The Jean Mpambara Case: Outlining "Culpable Omissions" in International Criminal Law

The Trial Chamber of the International Criminal Tribunal forRwanda, through its judgment in Jean Mpambara case, outlinedthe significance of culpable omissions, outlining three broadoffences under which it could be used as evidence. While itis clear that an omission may be considered as evidence of aidingand abetting or joint criminal enterprise, it is still not clearwhether omission of failure of duty to prevent or punish willbe considered as part of Article 6(1) of the statute as doneby the other trial chambers,¹     

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 International Tribunal for the Law of the Sea: Activities in 2005

This paper gives an overview of the activities of the InternationalTribunal for the Law of the Sea in 2005, regarding the fifteenthMeeting of States Parties and the organizational developments,jurisdiction and judicial activities of the Tribunal.     

Duress, International Criminal Law and Literature

This paper uses parallels between Sophocles’ Theban Playsand the House of Lords decision in Dudley and Stephens, to questionthe decision in the Erdemovi case before the International CriminalTribunal for the former Yugoslavia. One should distinguish betweencausal, moral and criminal responsibility. If a man who commitsa crime, not by the action of his free will, is to be foundguilty, we are essentially equating causal responsibility withcriminal guilt. This logic clearly does not correspond withthat of the rest of international criminal law. The storiesof Erdemovi, Oedipus, Dudley and Stephens are tragedies. Eachof the victims/perpetrators felt an overwhelming sense of remorse.Whether they should be considered morally guilty of murder isa matter of individual conscience. The International CriminalTribunal for the Former Yugoslavia majority erred in using anabsolute moral position in Erdemovi. The majority's moral condemnationof the killing of innocents was confused with the question ofwhether Erdemovi should have been criminally punished. The contentof the majority opinion is largely of an irreproachably moralisticnature, though shrouded and mystified by the discussion of precedent.More generally, the decision to try Erdemovi at the InternationalCriminal Tribunal for the Former Yugoslavia was itself self-defeating.Erdemovi should never have stood trial at The Hague. The internationalcommunity should not aid in self-flagellation. While his actionscannot be approved of, they should not be punished internationally.He could have been helped, supported and reintegrated with fargreater benefit to all.         ‘Heroesare hard to find in an atmosphere of total terror.’¹     

The Commission on the Responsibility of the Authors of the War and on Enforcement of Penalties and its Contribution to International Criminal Justice After World War II

This article traces the evolution of discussions within the Commission on the Responsibility of the Authors of the War and on Enforcement of Penalties and the United Nations War Crimes Commission regarding the establishment of an international criminal court. The Commission on the Responsibility of the Authors of the War and on Enforcement of Penalties was the first war crimes commission that seriously debated establishing an international criminal court for the prosecution of war criminals. Following the discussions held in the UNWCC, the International Military Tribunal in Nuremberg was created. All three institutions played a major part in the development of international criminal law.     

刑法学研究的新进展

2006年我国的刑法学研究视野开阔,进展显著,无论是在基础理论研究方面,还是在具体罪种的完善方面,均呈现出令人欣喜的繁荣景象。在加强基础理论研究的同时,刑法学界对一些备受关注的重大刑事法治现实问题如宽严相济的刑事政策、死刑制度改革、商业贿赂犯罪的规制、非公有制经济的平等保护等进行了较为集中和深入的研讨。     

The New SADC Tribunal: Or the Emasculation of an International Tribunal

Netherlands International Law Review - In 2010 the leaders of the Southern African Development Community (SADC) took the contentious decision to suspend its Tribunal, established in 2000, following...     

The Dunnes payments scandal, Charles Haugheyy and contemporary Irish political culture

This article offers interpretation and commentary regarding the Tribunal of Inquiry (Dunnes Payments) which was established to look into large sums given by Ben Dunne, a leading Irish businessman, to senior Irish politicians, most notably the former Taoiseach, Charles Haughey, and Michael Lowry who was a cabinet minister at the time. The article attempts to place this affair within the general context of contemporary Irish political culture, and the relatively unique, ‘cult of the personality’ personified by Charles Haughey. The article notes that it has been the convention to assume that Irish political culture reflects features commonly associated with the prevalence of traditional and conservative social and political values. The article argues that Irish political culture is now unmistakably in step with the trends observed throughout the European Union, while at the same time acknowledging that certain particular factors still remain distinctive. Despite Haughey's long tenure as the most powerful politician of his day, the privileges accorded by his lofty position alone cannot fully account for his political actions nor, in particular, his dubious ethics in relation to his personal finances. The article considers the contents of the McCracken Tribunal itself and concludes with a brief discussion of the Tribunal findings, the nature of corruption in Irish politics and the corresponding implications for Irish political culture. This revised version was published online in July 2006 with corrections to the Cover Date.     

The 2005 Revision of the Statute of the Iraqi Special Tribunal

On 9 October 2005, almost unnoticed, the Statute of the IraqiSpecial Tribunal (IST) was amended and the Tribunal was changedinto the Iraqi High Tribunal (IHT). These amendments introducedinto the legal and procedural system of the Tribunal significantchanges that directly impacted upon the functioning of the Tribunalas well as upon some of the most fundamental rights of the defendants.Although statutory amendments are not per se improper, thoseintroduced in the Statute of the Iraqi Tribunal are likely tofurther undermine the credibility of this institution.