The Concept of Trials in Absentia in International Criminal Law and the Special Tribunal for Lebanon: An Overview

1970 ◽  
Vol 1 (1) ◽  
pp. 11-26
Author(s):  
Shouvik Kumar Guha
Keyword(s):  
Criminal Law ◽  
Subject Matter ◽  
International Criminal Court ◽  
Due Process ◽  
International Criminal ◽  
Common Law ◽  
Civil Law ◽  
International Criminal Tribunal ◽  
Criminal Court ◽  
International Criminal Law

Trials in absentia have always been quite a contentious source of controversies in international criminal law, especially given the nature of crimes that result into these trials and given the question regarding what can be an acceptable standard of legal due process that ought to be adhered to in course of such trials. Throughout this paper, the author has sought to present an overview of the concept as it is prevalent in the current domestic and international legal scenarios. An effort has also been made to portray the range and acceptability of the arguments that are advanced by the proponents and detractors of the notion of accepting this category of trials as a matter of course to combat international and domestic crimes. The varying approaches of common law and civil law jurisdictions vis-à-vis this subject-matter has also been examined, together with the practices prevalent in renowned international tribunals such as International Criminal Tribunal for the former Yugoslavia [hereinafter referred to as “ICTY”], the International Criminal Tribunal for Rwanda [hereinafter referred to as “ICTR”] and the International Criminal Court [hereinafter referred to as “ICC”]. Finally, the author has looked into the manner in which the question of the validity of such trials has once again come to the forefront owing to its acceptance by the Special Tribunal for Lebanon.

scholarly journals The Legacy of the ICTY and ICTR in China

AJIL Unbound ◽  
2016 ◽  
Vol 110 ◽  
pp. 245-250
Author(s):  
Bing Bing Jia
Keyword(s):  
Criminal Law ◽  
International Criminal Court ◽  
Rome Statute ◽  
Ad Hoc ◽  
International Criminal ◽  
International Criminal Tribunal ◽  
Criminal Court ◽  
Decision Makers ◽  
International Criminal Law ◽  
International Tribunal

Legacy is a matter that may become topical when its creator finally stops producing. Normally, the silent years would be many before the thought of legacy enters into open, formal discourse among lawyers and decision-makers. This comment treats the meaning of the word as relative to the circumstances in which it is invoked. The more closely it is used in relation to the present, the more distant it drifts from its literal meaning, to the extent that it denotes what the word “impact” signifies. This essay questions whether the word “legacy” is apt in describing the footprint of the work of the two ad hoctribunals in China, where its influence has, as a matter of fact, been waning ever since the adoption of the Rome Statute of the International Criminal Court in 1998 (“Rome Statute” ). The Chinese example suggests that the work of the tribunals is (at least so far) no more significant to international criminal law than the illustrious Nuremberg and Tokyo Trials of the 1940s. The most major impact (a more apposite term than legacy) of the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Tribunal for Rwanda (ICTR) for China may be that China’s policy with regard to the tribunals, manifested mostly in the United Nations, has determined its approach to the International Criminal Court (“ICC” ). For that, the work of the tribunals could be considered as having left China something in the nature of an indirect legacy.

Legality, Culpability and Dogmatik: A Dialogue between the ECtHR, Comparative and International Criminal Law

2015 ◽  
Vol 15 (5) ◽  
pp. 823-860
Author(s):  
Giulio Vanacore
Keyword(s):  
Human Rights ◽  
Criminal Law ◽  
International Criminal Court ◽  
International Criminal ◽  
Common Law ◽  
Case Law ◽  
Criminal Court ◽  
International Criminal Law ◽  
European Court ◽  
Constitutive Element

This article aims to analyse a peculiar interplay between the case-law of the European Court of Human Rights (ECtHR), comparative and international criminal law. The discussion focuses on legality, foreseeability of the criminal nature of conduct, knowledge of a fact’s wrongfulness and mistakes of law. Starting from foreseeability as a constitutive element of legality in the ECtHR case-law, the author examines ‘knowability’ of a fact’s wrongfulness as a component of the Continental law Dogmatik category of culpability, the issue of ignorance in common law and the general interaction between the principles of legality and culpability. With regard to the International Criminal Court, there is a problematic need to establish a personal mental link between an individual’s actions and the system criminalising such action. In this context, the issue of foreseeability as applied to modes of liability has proven to be problematic. The upshot is this paper’s appeal for a truly international criminal Dogmatik.

scholarly journals The International Criminal Court: Promise and Politics

2015 ◽  
Vol 109 ◽  
pp. 269-272
Author(s):  
Makau Mutua
Keyword(s):  
Civil Society ◽  
Criminal Law ◽  
International Criminal Court ◽  
Rome Statute ◽  
Ad Hoc ◽  
International Criminal ◽  
International Criminal Tribunal ◽  
Criminal Court ◽  
International Criminal Law ◽  
International Criminal Tribunals

The International Criminal Court (ICC or Court) is an institution born of necessity after a long and arduous process of many false starts. The struggle to establish a permanent international criminal tribunal stretches back to Nuremberg. The dream, which was especially poignant for the international criminal law community, for a permanent international criminal tribunal was realized with the adoption in 1998 of the Rome Statute of the International Criminal Court. The treaty entered into force in 2002. Those were heady days for advocates and scholars concerned with curtailing impunity. No one was more ecstatic about the realization of the ICC than civil society actors across the globe, and particularly in Africa, where impunity has been an endemic problem. Victims who had never received justice at home saw an opportunity for vindication abroad. This optimism in the ICC was partially driven by the successes, however mixed, of two prior ad hoc international criminal tribunals—the International Criminal Tribunal for Rwanda and the International Criminal Tribunal for the Former Yugoslavia.

Redrawing the Line? Serious Crimes of Concern to the International Community beyond the Rome Statute

2015 ◽  
Vol 52 ◽  
pp. 129-183
Author(s):  
SARA WHARTON
Keyword(s):  
Criminal Law ◽  
Subject Matter ◽  
International Criminal Court ◽  
Rome Statute ◽  
International Criminal ◽  
International Community ◽  
Criminal Court ◽  
International Criminal Law ◽  
International Crimes ◽  
Inductive Approach

AbstractInternational criminal law, like all areas of law, must continue to evolve to reflect contemporary realities. This article demonstrates that the current subject matter jurisdiction of the International Criminal Court under the Rome Statute is very much an artefact of history, and it argues that the historical and reactive line that the statute draws between “core” international crimes and other serious international or transnational crimes is inadequate. In order to ensure that international criminal law continues to evolve in a reasoned and principled manner, states need to better articulate the criteria by which conduct is included within the category of “the most serious crimes of concern to the international community as a whole.” Using a primarily inductive approach, the article considers a number of such criteria that have been considered over the years. It concludes that, when assessed in the context of their systematic and organized perpetration, many other serious international and transnational crimes raise some of the same concerns that underpin the current core international crimes, suggesting that it may be time for the international community to consider redrawing the line.

The Contestation of Value-Based Norms: Confirmation or Erosion of International Law?

2019 ◽  
pp. 311-334
Author(s):  
Tiyanjana Maluwa
Keyword(s):  
International Law ◽  
Security Council ◽  
Criminal Law ◽  
International Criminal Court ◽  
International Criminal ◽  
Criminal Court ◽  
International Criminal Law ◽  
The Right ◽  
First Time ◽  
Normative Powers

The chapter discusses the concepts of shared values and value-based norms. It examines two areas of international law that provide illustrative examples of contestation of value-based norms: the fight against impunity under international criminal law and the debates about the responsibility to protect. It argues that the African Union’s (AU) difference of view with the International Criminal Court (ICC) over the indictment of Omar Al-Bashir is not a rejection of the non-impunity norm, but of the context and sequencing of its application. As regards the right of intervention codified in the Constitutive Act of the AU, Africans states responded to the failure of the Security Council to invoke its existing normative powers in the Rwanda situation by establishing a treaty-based norm of intervention, the first time that a regional international instrument had ever done so. Thus, in both cases one cannot speak of a decline of international law.

Part 3 General Principles of Criminal Law: Principes Généraux Du Droit Pénal, Art.27 Irrelevance of official capacity/Défaut de pertinence de la qualité officielle

2016 ◽  
Author(s):  
Schabas William A
Keyword(s):  
International Law ◽  
Criminal Law ◽  
International Criminal Court ◽  
Rome Statute ◽  
International Criminal ◽  
Criminal Responsibility ◽  
Criminal Court ◽  
International Criminal Law ◽  
Customary International Law ◽  
Head Of State

This chapter comments on Article 27 of the Rome Statute of the International Criminal Court. Article 27 consists two paragraphs that are often confounded but fulfil different functions. Paragraph 1 denies a defence of official capacity, i.e. official capacity as a Head of State or Government, a member of a Government or parliament, an elected representative or a government official shall not exempt a person from criminal responsibility under the Statute. Paragraph 2 amounts to a renunciation, by States Parties to the Rome Statute, of the immunity of their own Head of State to which they are entitled by virtue of customary international law. In contrast with paragraph 1, it is without precedent in international criminal law instruments.

Crimes against Humanity

2012 ◽  
Author(s):  
Beth van Schaack
Keyword(s):  
International Law ◽  
Criminal Law ◽  
International Criminal ◽  
International Crime ◽  
International Criminal Tribunal ◽  
Criminal Court ◽  
International Criminal Law ◽  
Crimes Against Humanity ◽  
Criminal Proceedings ◽  
Civilian Population

Crimes against humanity have both a colloquial and a legal existence. In daily parlance, the term is employed to condemn any number of atrocities that violate international human rights. As a legal construct, crimes against humanity encompass a constellation of acts made criminal under international law when they are committed within the context of a widespread and systematic attack against a civilian population. In the domain of international criminal law, crimes against humanity are an increasingly useful component of any international prosecutor’s toolbox, because they can be charged in connection with acts of violence that do not implicate other international criminal prohibitions, such as the prohibitions against war crimes (which require a nexus to an armed conflict) and genocide (which protects only certain human groups and requires proof of a specific intent to destroy such a group). Although the concept of crimes against humanity has deep roots, crimes against humanity were first adjudicated—albeit with some controversy—in the criminal proceedings following the World War II period. The central challenge to defining crimes against humanity under international criminal law since then has been to come up with a formulation of the offense that reconciles the principle of sovereignty—which envisions an exclusive territorial domain in which states are free from outside scrutiny—with the idea that international law can, and indeed should, regulate certain acts committed entirely within the borders of a single state. Because many enumerated crimes against humanity are also crimes under domestic law (e.g., murder, assault, and rape), it was necessary to define crimes against humanity in a way that did not elevate every domestic crime to the status of an international crime, subject to international jurisdiction. Over the years, legal drafters have experimented with various elements in an effort to arrive at a workable penal definition. The definitional confusion plaguing the crime over its life span generated a considerable amount of legal scholarship. It was not until the UN Security Council promulgated the statutes of the two ad hoc international criminal tribunals—the International Criminal Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda—that a modern definition of the crime emerged. These definitions were further refined by the case law of the two tribunals and their progeny, such as the Special Court for Sierra Leone. All these doctrinal developments were codified, with some additional modifications, in a consensus definition in Article 7 of the Statute of the International Criminal Court (ICC). It is now clear that the offense constitutes three essential elements: (1) the existence of a widespread or systematic attack against a civilian population and (2) the intentional commission of an enumerated act (such as an act of murder or torture) (3) by an individual with knowledge that his or her act would contribute to the larger attack. A renewed effort is now afoot to promulgate a multilateral treaty devoted to crimes against humanity based on the ICC definition and these central elements. Through this dynamic process of codification and interpretation, many—but not all—definitional issues left open in the postwar period have finally been resolved. Although their origins were somewhat shaky, crimes against humanity now have a firm place in the canon of international criminal law.

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