Judicial creativity at the international criminal tribunals / edited by Shane Darcy and Joseph Powderly.
2010
KZ7230 .J83 2010 (Map It)
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Title
Judicial creativity at the international criminal tribunals / edited by Shane Darcy and Joseph Powderly.
Published
Oxford ; New York : Oxford University Press, 2010.
Call Number
KZ7230 .J83 2010
ISBN
9780199591466 (cloth : alk. paper)
0199591466 (cloth : alk. paper)
0199591466 (cloth : alk. paper)
Description
xl, 391 pages ; 24 cm
System Control No.
(OCoLC)662154242
Bibliography, etc. Note
Includes bibliographical references and index.
Record Appears in
Added Author
Table of Contents
List of Contributors
xv
Table of Cases
xix
Note from the Bench
xxxv
Introduction: The International Criminal Tribunals and the Judicial Development of International Criminal Law
1
I.
Introduction
1
II.
Context and Rationale
2
III.
Scope and Content
3
A.
Sources of law and judicial interpretation
4
B.
Definition of crimes
5
C.
Forms of criminal liability
7
D.
Fair trial rights and defences
9
E.
Procedure
11
IV.
Parting Remarks
12
I.
Sources Of Law And Judicial Interpretation
1.
Judicial Interpretation at the Ad Hoc Tribunals: Method from Chaos?
17
I.
Introduction
17
II.
The Rules of the Game: The Laconic Statutes and Fidelity to Customary International Law
21
A.
The drafting of the Statutes and the challenge facing the bench
21
B.
Recourse to customary law: sculpture from the bench of the ad hoc Tribunals
26
III.
Methods of Interpretation: Piecemeal Identification and Fractured Application
32
A.
A sound interpretational foundation: the Vienna Convention on the Law of Treaties
32
B.
The utilization of Articles 31 and 32 of the Vienna Convention: buttressing the creative enterprise
37
IV.
Conclusion
43
2.
General Principles of Law, Judicial Creativity, and the Development of International Criminal Law
45
I.
Introduction
45
II.
General Principles of Law and the Inherent Powers of the Ad Hoc Tribunals
47
III.
General Principles and the Substantive Law
54
IV.
General Principles of Law at the ICC: Limiting Judicial Creativity?
57
V.
Conclusion
58
II.
Definition Of Crimes
3.
Judicial Activism and the Crime of Genocide
63
I.
Introduction
63
II.
The Eichmann Trial: Customary Law and Universal Jurisdiction
64
III.
Akayesu: `Permanent and Stable Groups'
70
IV.
The Krstic' Dissent: Cultural Genocide and Ethnic Cleansing
74
V.
Conclusion
77
4.
Using Custom to Reconceptualize Crimes Against Humanity
80
I.
Introduction
80
II.
The Concept of Crimes Against Humanity
81
III.
The Absence of the Armed Conflict Requirement
85
IV.
The Policy Requirement
88
V.
The Civilian Population
95
VI.
Assessing the ICTY's Means and Methods
98
A.
Identifying custom: inter-state international law versus international law of the community
99
B.
Evaluating the identification of custom in relation to findings on crimes against humanity
101
VII.
Conclusion
104
5.
The Reinvention of War Crimes by the International Criminal Tribunals
106
I.
Introduction
106
II.
War Crimes in the Statutes of the Ad Hoc Tribunals
107
III.
Judicial Creativity and the Law of War Crimes
111
A.
Grave breaches
112
B.
Violations of the laws and customs of war
116
1.
Internal armed conflicts
116
2.
Unenumerated war crimes
119
IV.
Conclusion
126
6.
Creating a Definition of Rape in International Law: The Contribution of the International Criminal Tribunals
129
I.
Introduction
129
II.
Identifying the Definition
131
III.
The Question of Consent
140
IV.
The Judicial Interpretation of Rape
149
V.
Conclusion
155
III.
Forms Of Criminal Liability
7.
The Ad Hoc Tribunals and the Law of Command Responsibility: A Quiet Earthquake
159
I.
Introduction
159
II.
The Provisions of the ICTY and ICTR Statutes
161
III.
The General Approach to Custom and Development
163
A.
The Hadzihasanovic decision
163
B.
Oric and overruling
168
IV.
The Nature of Command Responsibility
171
A.
The nature of command responsibility at the end of the Second World War
171
B.
The nature of command responsibility before the ICTY: early cases
172
C.
Hadzihasanovic: redux
174
D.
The next steps
177
E.
Oric: the deferred denouement
179
V.
Conclusion
183
8.
Judicial Creativity and Joint Criminal Enterprise
184
I.
Judicial Creativity
184
II.
The Legal Milieu
187
III.
Category III and the Problem of Intent
190
A.
Intent was removed
192
1.
The law relating to accessories
192
2.
This conclusion is in keepingwith the objects of the criminal law
193
B.
The secondary offender shares the intent of the primary offender to commit the additional crime
194
C.
Summary of the position in joint criminal enterprise
197
IV.
Co-perpetratorship
198
A.
A criticism of joint criminal enterprise
198
B.
Control
198
C.
Joint criminal enterprise and co-perpetratorship compared
199
V.
Postscript
201
VI.
Conclusion
202
9.
Omission Liability at the International Criminal Tribunals---A Case for Reform
204
I.
Introduction
204
II.
Aiding and Abetting by Omission---an Incoherent Development
207
A.
The elements of aiding and abetting
207
B.
The mental elements of aiding and abetting
208
C.
The physical elements of aiding and abetting
210
D.
Aiding and abetting by omission
211
E.
Presence at the scene as aiding and abetting by omission
212
F.
Failure to act as aiding and abetting by omission
214
III.
Aiding and Abetting by Omission---a Legal Fallacy?
216
A.
Examples of omissions are in fact positive acts
217
B.
No support for aiding and abetting by omission in customary international law
219
C.
The only true form of omission liability established as custom in international criminal law is superior responsibility
222
D.
No omission liability under the Rome Statute for the International Criminal Court
223
IV.
Conclusion
224
IV.
Defences And Fair Trial Rights
10.
Judicial Development of the Law of Defences by the International Criminal Tribunals
229
I.
Introduction
229
II.
The Principle of Legality: A Defence of Sorts
231
III.
Factors Mitigating Punishment or Admissible Defences?
234
A.
Obedience to superior orders
234
B.
Duress
238
C.
Mental incapacity and intoxication
241
IV.
Admissible Defences and the Law of Armed Conflict
243
A.
Self-defence
243
B.
Reprisals and tu quoque
246
V.
Conclusion
249
11.
The Development of the Right to Self-Representation before the International Criminal Tribunals
252
I.
Introduction
252
II.
Early ICTR Jurisprudence: The Enabling Provision of Article 20(4)(d) ICTR to Appoint Standby Counsel and Initial Restrictions of the Right to Self-Representation
253
III.
Self-Representation and the Role of Amici Curiae
254
IV.
A Trend towards the Assignment of Counsel
255
V.
Obstructionism and Standby Counsel: Assistance or Representation?
263
A.
Development of the role of standby counsel in the Seselj case
263
B.
Obstructionism and the self-representing accused: guidance from the Stankovic case
271
VI.
The Right to Self-Representation Upheld
273
VII.
Legal Aid and the Right to Self-Representation
280
VIII.
Conclusion
283
12.
The Right to be Informed of the Nature and Cause of the Charges: A Potentially Formidable Jurisprudential Legacy
286
I.
Introduction
286
II.
The Human Rights Standards and Ad Hoc Tribunals' Approach
287
III.
The Development of the Jurisprudence
291
A.
Jurisprudential vacuum and deference to the disclosure of evidence
291
B.
Dominance of the prosecution's approach and limited defence success
296
C.
The beginnings of a new approach
300
D.
Current pleading requirements
302
IV.
Pleading of Essential Factual Ingredients and Modes of Criminal Responsibility
305
V.
Conclusion
308
V.
Procedure
13.
Procedural Lawmaking at the International Criminal Tribunals
315
I.
Introduction
315
II.
A Short History of the ICTY's Procedural Law
316
III.
The Need for a Dynamic Procedural System
320
IV.
Judges as Lawmakers: Unacceptable Risk or the Only Feasible Alternative?
323
V.
An Unfortunate Procedural Creation: The Law regarding Detention on Remand
327
VI.
Conclusion: Lessons Learned
330
14.
Trying Cases at the International Criminal Tribunals in the Absence of the Accused?
332
I.
Introduction
332
II.
Trials in Absentia and Subsritute Proceedings
334
A.
For and against trials in absentia
334
B.
A controversial matter
335
C.
The law of the ICTY and the ICTR
337
1.
Rules of procedure and evidence
337
2.
Trials in absentia
339
3.
Rule 61 proceedings
342
D.
Approaches in national law
345
E.
Approaches by international human rights bodies
348
III.
Evaluation of ICTY and ICTR Practice
349
IV.
Conclusion
351
15.
The Judicial Role in the Definition and Implementation of the Completion Strategies of the International Criminal Tribunals
353
I.
Introduction
353
II.
The Origins and Evolution of the Completion Strategies: The Judges' Contribution
356
III.
Rule 11bis: The Far-reaching Case Referral Mechanism Created by the Judges
362
A.
The purpose and intent of the Rule 11 bis referral mechanism
362
B.
ICTY and ICTR Rule 11bis
366
IV.
ICTY Rule 28(A): A New Oversight Role for the Judges of the Yugoslavia Tribunal
374
V.
Conclusion
381
Index
385