Introduction: Common Civility – International Criminal Law as Cultural Hybrid

2011 ◽  
Vol 24 (2) ◽  
pp. 389-391 ◽  
Author(s):  
ELIES VAN SLIEDREGT
Keyword(s):  
Criminal Law ◽  
International Criminal ◽  
Civil Law ◽  
International Criminal Law ◽  
Recent Discussion ◽  
Social Scientists ◽  
Legal Traditions ◽  
Procedural Law ◽  
The Hague ◽  
National Systems

On 28 and 29 October 2011, a conference was held in The Hague on International Criminal Law (ICL) as a cultural and legal hybrid. The aim of the conference convenors was to facilitate an exchange of thoughts between legal scholars, practitioners, and social scientists on the nature of ICL and to discuss the role (legal) culture plays in international criminal justice. The recent discussion is dominated by the adversarial (common law)–inquisitorial (civil law) dichotomy and centres on the hybrid nature of the procedure in international criminal law. The debate focuses on how a fair and efficient trial can be safeguarded by observing the rights of the accused and other participants through an operational criminal procedure. Sometimes, this clash of legal systems has become an end in itself, resulting in a debate on which system is superior. At least in theory, however, modern international criminal procedural law seems to have overcome the adversarial–inquisitorial dichotomy, since it combines features of both common- and civil-law systems. This unique compromise structure poses a challenge to the practitioners who – although trained in and influenced by their respective national systems – have to apply the procedural norms at the international level and, in doing so, find an appropriate balance between adversarial and inquisitorial features. This is even more challenging since the single elements of the different legal traditions do not fit together seamlessly, leading to myriad, heated disagreements over how to combine them into a single, coherent, workable legal system.

Part 1 Introduction, 3 Parameters of Criminal Responsibility

2012 ◽  
Author(s):  
van Sliedregt Elies
Keyword(s):  
Criminal Law ◽  
International Criminal ◽  
Criminal Responsibility ◽  
Civil Law ◽  
International Criminal Law ◽  
Individual Responsibility ◽  
Municipal Law ◽  
Material Element ◽  
Mental Element ◽  
Superior Responsibility

While the Nuremberg and Tokyo judgments and the subsequent proceedings are important sources of law and indispensable in developing the concept of individual responsibility in international criminal law, they do not provide us with a system of criminal law and doctrine. For that, we need to turn to municipal law. National criminal law and doctrine not only serves as guidance and inspiration in developing a theory of individual responsibility in international criminal law, it also assists in understanding and describing international criminal law. This chapter begins with a brief discussion of terminology which has proved useful at the tribunals to analyze individual and superior responsibility. It then describes the mental element and material element in civil law systems.

Responsibility for Bystanders in Mass Crimes: Towards a Duty to Rescue in International Criminal Justice

2017 ◽  
Vol 17 (5) ◽  
pp. 879-908
Author(s):  
Auriane Botte-Kerrison
Keyword(s):  
Criminal Justice ◽  
Criminal Law ◽  
International Criminal ◽  
Common Law ◽  
Civil Law ◽  
International Criminal Law ◽  
International Criminal Justice ◽  
Attribution Of Responsibility ◽  
The Social ◽  
Collective Dimension

This article examines the viability of integrating the duty to rescue concept in international criminal justice to deal with the responsibility of bystanders. Despite the fact that they often contribute to create the social context in which mass crimes occur, bystanders are almost absent from the scope of international criminal justice, focusing mainly on the perpetrators and the victims. This article explores a possible avenue to fill this gap so that the attribution of responsibility for mass crimes can be more coherent with their collective dimension. It assesses whether the duty to rescue concept, commonly found in the legislation of civil law countries, could provide a ‘ready-made’ solution to deal with bystander responsibility. Following a comparative analysis of the different approaches to the duty to rescue in civil law and common law countries, it examines how the duty to rescue would fit with similar concepts in international criminal law.

Implications of Stripping Immunities of Heads of States on State Cooperation and the Effectiveness of Trial

2016 ◽  
Vol 1 (2) ◽  
pp. 71-93
Author(s):  
Patrick Kimani
Keyword(s):  
Criminal Law ◽  
International Criminal Court ◽  
Rome Statute ◽  
International Criminal ◽  
Criminal Court ◽  
International Criminal Law ◽  
Head Of State ◽  
Invisibility Cloak ◽  
The Hague ◽  
State Cooperation

The development of international criminal law in the last seven decades has seen a gradual erosion of the integrity of immunities for heads of states. The journey from Nuremberg to The Hague has resulted in a permanent international criminal court. Article 27(2) of the Rome Statute of the International Criminal Court (the Rome Statute) disregards immunities as an effective bar to the jurisdiction of the International Criminal Court (ICC). Heads of states have been stripped of their ‘invisibility cloak’ from international criminal prosecutions. The Rome Statute places its reliance on the situation state’s authorities to cooperate with the ICC in its investigation and prosecution of crimes. A special tension is noticeable in circumstances where an incumbent head of state is accused at ICC while his or her state is placed under the general cooperation obligation. This tension is clearly manifest in the two criminal processes against Uhuru Kenyatta and Al Bashir. Bearing in mind the significant political muscle a sitting head of state wields in their state, it is quite likely that their state’s authorities will be very reluctant to discharge their cooperation obligations. The prosecution of sitting heads of states remains a challenge. Is it time to rethink the structure of the ICC or the implementation of the Statute?

The doctrine of Res Judicata in International Criminal Law

2003 ◽  
Vol 3 (3) ◽  
pp. 195-216 ◽  
Author(s):  
Rosa Theofanis
Keyword(s):  
International Law ◽  
Criminal Law ◽  
Ad Hoc ◽  
International Criminal ◽  
Common Law ◽  
Civil Law ◽  
International Criminal Law ◽  
Res Judicata ◽  
The Law ◽  
Definition Of

AbstractRes judicata is well-settled as a general principle of international law. But the rules of res judicata in international criminal procedure are undeveloped. Recent cases from the ad hoc criminal tribunals for the former Yugoslavia and Rwanda have added to the understanding of res judicata in international law - demonstrating the risk that new rules of res judicata will implicitly incorporate either a common-law or civil-law definition of what the "law" is. Analysis of issues considered in recent Tribunal jurisprudence - particularly the questions of review and reconsideration - locates potential hazards in the development of the law and provides guidance for the application of the ICC statute.

The “Struggle” to Dissolve the Kosovo Specialist Chambers in The Hague: Stuck between Constitutional Text and Mission to Pursue Justice

2021 ◽  
Vol 20 (3) ◽  
pp. 548-575
Author(s):  
Avni Puka ◽  
Fisnik Korenica
Keyword(s):  
European Union ◽  
Criminal Law ◽  
International Criminal ◽  
Fundamental Rights ◽  
International Criminal Law ◽  
The European Union ◽  
The Hague ◽  
The Republic ◽  
The Eu

Abstract The Kosovo Specialist Chambers (KSC) manifest the first effort of the European Union to participate in an international criminal law project by running a hybrid criminal tribunal, vested with jurisdiction to investigate the Parliamentary Assembly of the Council of Europe’s Marty Report. The KSC is entrusted with a mandate originating in a number of legal instruments. A “termination clause” is also present in the Constitution of the Republic of Kosovo. The Specialist Constitutional Chamber has recently ruled on an amendment discreetly activating the termination of the KSC. The Chamber’s decision outlawing “the amendment” manifests an attempt to reinforce the constitutive nature of the EU’s proprietorship over the KSC, attaching to it an international personality detached from that of Kosovo. The decision contends that the “power to dissolve” the KSC is basically vested with the EU, and Kosovo’s internal law cannot affect that relationship unilaterally. The article argues that the strong adherence of the Chamber’s decision on fundamental rights is an attempt to expose the victim-rights-centered mission of the KSC, clearly leaning towards a legitimacy rather than a legalistic exercise. The article concludes that the decision will have ample effect on the EU’s responsibility over the KSC, the nature of the “power to dissolve”, and the KSC’s mission in the European fundamental rights landscape in general.

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