Muutke küpsiste eelistusi

Judicial Creativity at the International Criminal Tribunals [Kõva köide]

Edited by (Lecturer, Irish Centre for Human Rights, National University of Ireland, Galway), Edited by (Researcher in International Humanitarian & Criminal Law, T.M.C. Asser Institute, The Netherlands)
  • Formaat: Hardback, 432 pages, kõrgus x laius x paksus: 241x162x31 mm, kaal: 792 g
  • Ilmumisaeg: 16-Dec-2010
  • Kirjastus: Oxford University Press
  • ISBN-10: 0199591466
  • ISBN-13: 9780199591466
Teised raamatud teemal:
  • Kõva köide
  • Hind: 126,60 €*
  • * hind on lõplik, st. muud allahindlused enam ei rakendu
  • Tavahind: 158,25 €
  • Säästad 20%
  • Raamatu kohalejõudmiseks kirjastusest kulub orienteeruvalt 3-4 nädalat
  • Kogus:
  • Lisa ostukorvi
  • Tasuta tarne
  • Tellimisaeg 2-4 nädalat
  • Lisa soovinimekirja
  • Raamatukogudele
    • Oxford Scholarship Online e-raamatud
Judicial Creativity at the International Criminal TribunalsSuurem pilt
  • Formaat: Hardback, 432 pages, kõrgus x laius x paksus: 241x162x31 mm, kaal: 792 g
  • Ilmumisaeg: 16-Dec-2010
  • Kirjastus: Oxford University Press
  • ISBN-10: 0199591466
  • ISBN-13: 9780199591466
Teised raamatud teemal:
Püsilink: https://www.kriso.ee/db/9780199591466.html
Märksõnad:
As the International Criminal Tribunals for the Former Yugoslavia and Rwanda enter the final phase of their work, it is an appropriate time to reflect on the significant contribution that these unique institutions have made to the development of international criminal law. Judgments issued by the ad hoc Tribunals have served to clarify and elucidate key concepts and principles of international criminal law. On several occasions, this practice and jurisprudence has pushed the progressive development of this dynamic and growing branch of international law. Judicial Creativity at the International Criminal Tribunals examines the specific contribution made by the judges of the Yugoslavia and Rwanda Tribunals to the development of international criminal law in the areas of substantive crimes, criminal liability, defences, general principles, fair trial rights, and procedure. The essays illuminate the law on these topics while pointing to key areas where the Tribunals have advanced the understanding of particular concepts and principles. Several contributions address the theories of interpretation employed by the Tribunals judges and the challenges presented by judicial creativity in international criminal trials. As the caseload grows for the International Criminal Court and the international criminal justice project continues to flourish, it is important to take stock of the achievements to date of international criminal bodies. This collection of essays provides a thoughtful analysis by judges, practitioners, and scholars of international criminal law of the profound changes in the field enacted by the judges of the International Criminal Tribunals for Rwanda and the Former Yugoslavia.

Arvustused

I expect the volume to be widely read. It is bound to be of great interest to practitioners and judges involved in international criminal trials. It will plainly attract significant academic interest. It will also repay study by those who are interested in the role played by judges in general in the development of law in the domestic as well as the international field. In addition it provides insight into the historical role and development, as well as the work in general, of the international criminal tribunals * Lord Bonomy, Senator of the College of Justice and formerly Judge of the ICTY, Journal of the Law Society of Scotland Online *

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(16)
I Introduction
1(1)
II Context and Rationale
2(1)
III Scope and Content
3(9)
A Sources of law and judicial interpretation
4(1)
B Definition of crimes
5(2)
C Forms of criminal liability
7(2)
D Fair trial rights and defences
9(2)
E Procedure
11(1)
IV Parting Remarks
12(5)
I Sources Of Law And Judicial Interpretation
1 Judicial Interpretation at the Ad Hoc Tribunals: Method from Chaos?
17(28)
I Introduction
17(4)
II The Rules of the Game: The Laconic Statutes and Fidelity to Customary International Law
21(11)
A The drafting of the Statutes and the challenge facing the bench
21(5)
B Recourse to customary law: sculpture from the bench of the ad hoc Tribunals
26(6)
III Methods of Interpretation: Piecemeal Identification and Fractured Application
32(11)
A A sound interpretational foundation: the Vienna Convention on the Law of Treaties
32(5)
B The utilization of Articles 31 and 32 of the Vienna Convention: buttressing the creative enterprise
37(6)
IV Conclusion
43(2)
2 General Principles of Law, Judicial Creativity, and the Development of International Criminal Law
45(18)
I Introduction
45(2)
II General Principles of Law and the Inherent Powers of the Ad Hoc Tribunals
47(7)
III General Principles and the Substantive Law
54(3)
IV General Principles of Law at the ICC: Limiting Judicial Creativity?
57(1)
V Conclusion
58(5)
II Definition Of Crimes
3 Judicial Activism and the Crime of Genocide
63(17)
I Introduction
63(1)
II The Eichmann Trial: Customary Law and Universal Jurisdiction
64(6)
III Akayesu: `Permanent and Stable Groups'
70(4)
IV The Krstic' Dissent: Cultural Genocide and Ethnic Cleansing
74(3)
V Conclusion
77(3)
4 Using Custom to Reconceptualize Crimes Against Humanity
80(26)
I Introduction
80(1)
II The Concept of Crimes Against Humanity
81(4)
III The Absence of the Armed Conflict Requirement
85(3)
IV The Policy Requirement
88(7)
V The Civilian Population
95(3)
VI Assessing the ICTY's Means and Methods
98(6)
A Identifying custom: inter-state international law versus international law of the community
99(2)
B Evaluating the identification of custom in relation to findings on crimes against humanity
101(3)
VII Conclusion
104(2)
5 The Reinvention of War Crimes by the International Criminal Tribunals
106(23)
I Introduction
106(1)
II War Crimes in the Statutes of the Ad Hoc Tribunals
107(4)
III Judicial Creativity and the Law of War Crimes
111(15)
A Grave breaches
112(4)
B Violations of the laws and customs of war
116(1)
1 Internal armed conflicts
116(3)
2 Unenumerated war crimes
119(7)
IV Conclusion
126(3)
6 Creating a Definition of Rape in International Law: The Contribution of the International Criminal Tribunals
129(30)
I Introduction
129(2)
II Identifying the Definition
131(9)
III The Question of Consent
140(9)
IV The Judicial Interpretation of Rape
149(6)
V Conclusion
155(4)
III Forms Of Criminal Liability
7 The Ad Hoc Tribunals and the Law of Command Responsibility: A Quiet Earthquake
159(25)
I Introduction
159(2)
II The Provisions of the ICTY and ICTR Statutes
161(2)
III The General Approach to Custom and Development
163(8)
A The Hadzihasanovic decision
163(5)
B Oric and overruling
168(3)
IV The Nature of Command Responsibility
171(12)
A The nature of command responsibility at the end of the Second World War
171(1)
B The nature of command responsibility before the ICTY: early cases
172(2)
C Hadzihasanovic: redux
174(3)
D The next steps
177(2)
E Oric: the deferred denouement
179(4)
V Conclusion
183(1)
8 Judicial Creativity and Joint Criminal Enterprise
184(20)
I Judicial Creativity
184(3)
II The Legal Milieu
187(3)
III Category III and the Problem of Intent
190(8)
A Intent was removed
192(1)
1 The law relating to accessories
192(1)
2 This conclusion is in keepingwith the objects of the criminal law
193(1)
B The secondary offender shares the intent of the primary offender to commit the additional crime
194(3)
C Summary of the position in joint criminal enterprise
197(1)
IV Co-perpetratorship
198(3)
A A criticism of joint criminal enterprise
198(1)
B Control
198(1)
C Joint criminal enterprise and co-perpetratorship compared
199(2)
V Postscript
201(1)
VI Conclusion
202(2)
9 Omission Liability at the International Criminal Tribunals---A Case for Reform
204(25)
I Introduction
204(3)
II Aiding and Abetting by Omission---an Incoherent Development
207(9)
A The elements of aiding and abetting
207(1)
B The mental elements of aiding and abetting
208(2)
C The physical elements of aiding and abetting
210(1)
D Aiding and abetting by omission
211(1)
E Presence at the scene as aiding and abetting by omission
212(2)
F Failure to act as aiding and abetting by omission
214(2)
III Aiding and Abetting by Omission---a Legal Fallacy?
216(8)
A Examples of omissions are in fact positive acts
217(2)
B No support for aiding and abetting by omission in customary international law
219(3)
C The only true form of omission liability established as custom in international criminal law is superior responsibility
222(1)
D No omission liability under the Rome Statute for the International Criminal Court
223(1)
IV Conclusion
224(5)
IV Defences And Fair Trial Rights
10 Judicial Development of the Law of Defences by the International Criminal Tribunals
229(23)
I Introduction
229(2)
II The Principle of Legality: A Defence of Sorts
231(3)
III Factors Mitigating Punishment or Admissible Defences?
234(9)
A Obedience to superior orders
234(4)
B Duress
238(3)
C Mental incapacity and intoxication
241(2)
IV Admissible Defences and the Law of Armed Conflict
243(6)
A Self-defence
243(3)
B Reprisals and tu quoque
246(3)
V Conclusion
249(3)
11 The Development of the Right to Self-Representation before the International Criminal Tribunals
252(34)
I Introduction
252(1)
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(1)
III Self-Representation and the Role of Amici Curiae
254(1)
IV A Trend towards the Assignment of Counsel
255(8)
V Obstructionism and Standby Counsel: Assistance or Representation?
263(10)
A Development of the role of standby counsel in the Seselj case
263(8)
B Obstructionism and the self-representing accused: guidance from the Stankovic case
271(2)
VI The Right to Self-Representation Upheld
273(7)
VII Legal Aid and the Right to Self-Representation
280(3)
VIII Conclusion
283(3)
12 The Right to be Informed of the Nature and Cause of the Charges: A Potentially Formidable Jurisprudential Legacy
286(29)
I Introduction
286(1)
II The Human Rights Standards and Ad Hoc Tribunals' Approach
287(4)
III The Development of the Jurisprudence
291(14)
A Jurisprudential vacuum and deference to the disclosure of evidence
291(5)
B Dominance of the prosecution's approach and limited defence success
296(4)
C The beginnings of a new approach
300(2)
D Current pleading requirements
302(3)
IV Pleading of Essential Factual Ingredients and Modes of Criminal Responsibility
305(3)
V Conclusion
308(7)
V Procedure
13 Procedural Lawmaking at the International Criminal Tribunals
315(17)
I Introduction
315(1)
II A Short History of the ICTY's Procedural Law
316(4)
III The Need for a Dynamic Procedural System
320(3)
IV Judges as Lawmakers: Unacceptable Risk or the Only Feasible Alternative?
323(4)
V An Unfortunate Procedural Creation: The Law regarding Detention on Remand
327(3)
VI Conclusion: Lessons Learned
330(2)
14 Trying Cases at the International Criminal Tribunals in the Absence of the Accused?
332(21)
I Introduction
332(2)
II Trials in Absentia and Subsritute Proceedings
334(15)
A For and against trials in absentia
334(1)
B A controversial matter
335(2)
C The law of the ICTY and the ICTR
337(1)
1 Rules of procedure and evidence
337(2)
2 Trials in absentia
339(3)
3 Rule 61 proceedings
342(3)
D Approaches in national law
345(3)
E Approaches by international human rights bodies
348(1)
III Evaluation of ICTY and ICTR Practice
349(2)
IV Conclusion
351(2)
15 The Judicial Role in the Definition and Implementation of the Completion Strategies of the International Criminal Tribunals
353(32)
I Introduction
353(3)
II The Origins and Evolution of the Completion Strategies: The Judges' Contribution
356(6)
III Rule 11bis: The Far-reaching Case Referral Mechanism Created by the Judges
362(12)
A The purpose and intent of the Rule 11 bis referral mechanism
362(4)
B ICTY and ICTR Rule 11bis
366(8)
IV ICTY Rule 28(A): A New Oversight Role for the Judges of the Yugoslavia Tribunal
374(7)
V Conclusion
381(4)
Index 385
Dr. Shane Darcy is a lecturer at the Irish Centre for Human Rights, National University of Ireland, Galway He holds a Ph.D and LL.M in international human rights law from the National University of Ireland, Galway and ahs published widely in the fields of international humanitarian law, criminal law and human rights law.



Joseph Powderly is Researcher in International Criminal and Humanitarian Law at the T.M.C. Asser Instituut in The Hague. He is a Ph.D. candidate at the Irish Centre for Human Rights, National University of Ireland, Galway, and is a recipient of a Postgraduate Research Scholarship from Irish Research Council for the Humanities and Social Sciences.