Search

Abbreviations Preface and Acknowledgments Introduction Flavia Lattanzi Chapter 1 'Fragmentation', Diversification and '3D' Legal Pluralism: International Criminal Law as the Jack-in-the-Box? Carsten Stahn & Larissa van den Herik Part I Institutional Aspects of Fragmentation Chapter 2 The Judicial Dialogue between the ICJ and International Criminal Courts on the Question of Immunity Rosanne van Alebeek Chapter 3 Binocular Vision: State Responsibility and Individual Criminal Responsibility for Genocide Philippa Webb Chapter 4 Finding Custom: The ICJ and the International Criminal Courts and Tribunals Compared Yeghishe Kirakosyan Chapter 5 Human Rights Cases in Sub-regional African Courts: Towards Justice for Victims or Just More Fragmentation? Helen Duff y Chapter 6 Praising the Region: What Might a Complementary Criminal Justice System Learn from the Inter-American Court of Human Rights? Cecilia Cristina Naddeo Chapter 7 The Regionalization of Criminal Law - the Example of European Criminal Law Ricardo Pereira Chapter 8 Alternative Justice Mechanisms, Compliance and Fragmentation of International Law Susan Kemp Chapter 9 Limits of Information-sharing between the International Criminal Court and Truth Commissions Eszter Kirs Chapter 10 Puzzling over Amnesties: Defragmenting the Debate for International Criminal Tribunals Dov Jacobs Part II Fragmentation of Substantive Law Chapter 11 Chinese Humanitarian Law and International Humanitarian Law Liu Daqun Chapter 12 Approximation or Harmonisation as a Result of Implementation of the Rome Statute David Donat Cattin Chapter 13 Fragmentation of the Rome Statute through an Incoherent Jurisdictional Regime for the Crime of Aggression: A Silent Operation Deborah Ruiz Verduzco Chapter 14 Domestic Prosecution of Genocide: Fragmentation or Natural Diversity? Cristina Fernandez-Pacheco Estrada Chapter 15 The Rome Statute and Domestic Proceedings for Ordinary Crimes: The (In)Admissibility of Cases before the International Criminal Court Beatrice Pisani Chapter 16 Fragmentation of the Notion of Co-Perpetration in International Criminal Law? Chantal Meloni Chapter 17 The Mens Rea Enigma in the Jurisprudence of the International Criminal Court Mohamed Elewa Badar Chapter 18 Reception of Common Law in Substantive International Criminal Law James L. Bischoff Chapter 19 The Principle of Complicity under International Law - Its Application to States and Individuals in Cases involving Genocide, Crimes against Humanity and War Crimes Erik Kok Part III Fragmentation and Criminal Procedure Chapter 20 Unifi cation or Fragmentation? Structural Tendencies in International Criminal Procedure Mark Klamberg Chapter 21 Prosecutorial Discretion in International Criminal Justice: Between Fragmentation and Unification Hitomi Takemura Chapter 22 Fragmentation in International Criminal Law and the Rights of Victims Margaret Burnham Chapter 23 The Influences of French Law on Appeal Proceedings before the International Criminal Court and the Tribunals Xavier Tracol Index.

The emergence of international criminal law as a new specialist regime has reinvigorated concerns relating to 'fragmentation'. This chapter treats 'fragmentation' as a symptom, and looks at the implications of this symptom in a specific discipline - international criminal law. It is thus a priori 'neutral' in its observational standpoint, and focused on identification of the impact and verification of the paradigm in the specific field of international criminal justice. The chapter investigates conflicts between rules of general public international law and international criminal law as well as conflicts between different layers and constituencies inside the domain of international criminal law. In doing so, it examines different forms of 'differentiation', and consequences of the 'fragmentation' debate in this field. The chapter addresses procedural implications. The diversification of international law and its judicial fora requires a deeper engagement with legal pluralism, and the symbiotic interaction of criminal justice and human rights. Keywords:diversification; fragmentation; human rights; international criminal justice; international criminal law; legal pluralism

The concept of justice is essential in this context of human development as well as in the context of cooperation. It plays a central role in the context of ‘human rights, democracy’ and ‘good governance’ which form core foundations of EU development cooperation. This study clarifies the use of the concept in EU cooperation and development practice, and possible strategies for future policies. First, it determines the content and meaning of the notion of ‘justice’, taking into account justice theories and their application in the international context. Second, it examines how the concept is applied in both internal and external European policy, especially in the framework of development and/or to justice. Following these findings, the study examines ‘justice’ strategies in the context of multilateral relationships and in the context of European external programmes, as well as peace-building and transitional justice. It concludes with a set of targeted recommendations.

This systematic, contextual and practice-oriented account of complementarity explores the background and historical expectations associated with complementarity, its interpretation in prosecutorial policy and judicial practice, its context (ad hoc tribunals, universal jurisdiction, R2P) and its impact in specific situations (Colombia, Congo, Uganda, Central African Republic, Sudan and Kenya). Written by leading experts from inside and outside the Court and scholars from multiple disciplines, the essays combine theoretical inquiry with policy recommendations and the first-hand experience of practitioners. It is geared towards academics, lawyers and policy-makers who deal with the impact and application of international criminal justice and its interplay with peace and security, transitional justice and international relations.

Complementarity has many faces. Today, it is traditionally theorized on the basis of a distinction between ‘classical’ and ‘positive complementarity’. This chapter revisits this categorization. It argues that both conceptions are inherent in the framework of the Rome Statute, but underdeveloped in their articulation and meaning due to the framing of Article 17. Both concepts are often misunderstood or used in order to justify specific policy choices. This chapter argues that forum allocation is governed by three cardinal principles which underpin the functioning of the Rome system of justice: (i) effectivenes, (ii) impartiality and (iii) fairness. It defines means and methods of ‘classical’ complementarity, including its use as a carrot and stick. It challenges the assumption that ‘positive’ complementarity is merely a policy principle or a tool to strengthen domestic jurisdiction. It argues that the ICC is empowered to use techniques to overcome ‘inability’ and ‘unwillingness’ as part of its mandate. It claims that the move from a passive to a managerial understanding of complementarity requires greater attention to the foundational goals of the Court, i.e. judicial independence, effective justice, fairness and sustainability. Introduction The concept of complementarity has undergone significant transformation in international criminal justice. In the ad hoc tribunals, the virtue of complementarity was largely revealed as a byproduct of judicial activity. It is inherent in the referral mechanism under Rule 11 bis which was introduced as part of the completion strategy. In this context, i.e. the process of transfer of cases to national jurisdictions, complementarity has become a ‘main priority’ for the tribunals. Under the Rome Statute, complementarity is not only a technical concept, but a systemic feature of the International Criminal Court (ICC). It marks the very foundation of a new system of justice. Its potential to create a broader culture of accountability and prevention of mass atrocity crimes constitutes one of the prerequisites for the long-term impact and success of the ICC.

Complementarity has many faces. Today, it is traditionally theorised on the basis of a distinction between ‘classical’ and ‘positive complementarity’. This chapter revisits this categorisation. It argues that both conceptions are inherent in the framework of the Statute, but underdeveloped in their articulation and meaning due to the framing of Article 17. Both concepts are often misunderstood or used, in order to justify specific policy choices. This chapter argues that forum allocation is governed by three cardinal principles which underpin the functioning of the Rome system of justice: (i) effectivenes, (ii) impartiality and (iii) fairness. It defines means and methods of ‘classical’ complementarity, including its use as a carrot and stick. It challenges the assumption that ‘positive’ complementarity is merely a policy principle or a tool to strengthen domestic jurisdiction. It argues that the Court is empowered to use techniques to overcome ‘inability’ and unwillingness’ as part of its mandate. It claims that the move from a passive to a managerial understanding of complementarity requires greater attention to the foundational goals of the Court, i.e. judicial independence, effective justice, fairness and sustainability.

The influence of scholars and practitioners on the development and conceptualization of international criminal law.- 'satires of Circumstance': Some Notes on War Crimes Trials and Irony.- The Banality of Evil on Trial.- Why International Criminal Lawyers Should Read Mirjan Damaska.- The Gentle Humanizer of Humanitarian Law - Antonio Cassese and the Creation of the Customary Law of Non-International Armed Conflict.- The International Criminal Legal Process: Towards a Realistic Model of International Criminal Law in Action.- Theorizing international criminal justice.- The Two Liberalisms of International Criminal Law.- International Criminal Law at the Crossroads: From ad Hoc Imposition to a Treaty-Based Universal System.- In Search of the 'Vertical': Towards an Institutional Theory of International Criminal Justice's Core.- Re-assessing the balance between international and domestic jurisdiction.- Situational Gravity Under the Rome Statute.- When Law 'Expresses' More Than it Cares to Admit: Comments on Heller.- Should the Prosecution of Ordinary Crimes in Domestic Jurisdictions Satisfy the Complementarity Principle?.- Interpreting Complementarity and Interests of Justice in the Presence of Restorative-Based Alternative Forms of Justice.- Universal Jurisdiction and the Prosecution of Excluded Asylum Seekers.- De-individualizing international criminal law: Can abstract entities commit international crimes after all?.- The Inter-American Court of Human Rights and Aggravated State Responsibility: Operationalizing the Concept of State Crime.- Corporations as Future Subjects of the International Criminal Court: An Exploration of the Counterarguments and Consequences.- Grey War Zone? The Question of Contractual Control of the Privatization of Warfare and Civilianization of the Military.- Holding Private Military Corporations Accountable for Their Crimes: The Applicability of the Command/Superior Responsibility Doctrine to Crimes of Pmcs.- Crime definitions revisited.- Defining the Crime of Aggression.- Complementarity and Aggression: A Ticking Time Bomb?.- The Recruitment and Use of Child Soldiers: Some Reflections on the Prosecution of a New War Crime.- System-criminality and the principle of personal fault: A balancing test in setting the appropriate standards for modes of liability.- The Difficulty with Individual Criminal Responsibility in International Criminal Law.- Current Trends on Modes of Liability for Genocide, Crimes Against Humanity and War Crimes.- From 'Conspiracy' to 'Joint Criminal Enterprise': In Search of the Organizational Parameter.- Towards one international criminal procedure?.- Trends in the Development of a Unified Law of International Criminal Procedure.- Witness Memory and the Manufacture of Evidence at the International Criminal Tribunals.- Remedies for War Victims.- Victim Partication in ICC Proceedings.- Arrest and Surrender Under the ICC Statute: A Contextual Reading.

In domestic criminal proceedings, judicial review of prosecutorial discretion is an everyday reality. Discretion extends to various types of decisions, such as the decision whether or not to investigate or prosecute, the selection of charges, the timing of charges and the determination of the forum of adjudication. The Prosecutor has made significant efforts to enhance transparency and coherence through the adoption of regulations and the articulation of policy-guidelines. The rationale for defending prosecutorial discretion lies rather in the division of roles between judges and the Prosecutor in international criminal proceedings and the limits of judicial review. One may formally distinguish four models of accountability: political accountability, process-based checks and balances, (self-)regulation and judicial review. The drafters of the Statute have made significant efforts to strengthen the transparency and justification of prosecutorial decision-making in the context of the International Criminal Court (ICC). Keywords: International Criminal Court (ICC); judicial review; prosecutorial discretion

This is the introductory chapter of the book, which begins with general reflections on the theme of the International Criminal Court (ICC) at five years by those who have closely shaped or followed the naissance of the Court and its policies. Where does the Court stand now? In generational terms, the Court is widely considered as the successor of the ad hoc tribunals. The Court is still an entity in statu nascendi ; certain teething symptoms have been diagnosed in the first practice. Some of the grand doyens of the discipline have raised doubts about the first steps of the ICC. The book combines expertise from inside the Court with inputs from external and critical observers. The authors hope that this diversity of views and analysis will shed a fresh light on some of the merits and main challenges of the Court in the transition from infancy to emancipation. Keywords: Court' first practice; International Criminal Court (ICC)

The UN Charter does not expressly provide for the conduct of the UN in an executive capacity such as territorial administration outside the framework of the Trusteeship system. Nevertheless, three factors support the claim that the United Nations has statutory authority to administer territories beyond the scope of application of Article 81: the drafting history of the Charter, the institutional practice of the organisation, and the systemic structure of the Charter system. Authority to administer territories under the Charter of the United Nations The debates at the San Francisco Conference lend support to the view that the UN was intended to possess sufficient personality to exercise jurisdiction and control over territory. The drafting history of the UN Charter Following the practice of the League of Nations in territorial administration, the drafters of the Charter deliberated in 1945 whether it was necessary to bestow the organisation with the express power to exercise territorial jurisdiction or to guarantee the territorial integrity of an entity. The Norwegian delegation introduced a proposal expressly to state that the Security Council may “take over on behalf of the Organisation the administration of any territory of which the continued administration by the state in possession is found to constitute a threat to the peace”. This proposal was only withdrawn because it was assumed that such a reference could limit the discretion and field of application of measures at the disposition of the Council under Chapter VII.

Although the UN engagement in Somalia was in many ways a reversion to the traditions and habits of the Cold War experiment in the Congo, the 1990s marked a conceptual turning point in UN practice. The organisation made increasing efforts to eliminate the root causes of conflict through the assumption of administering responsibilities, instead of merely combating the symptoms of violence. The theoretical cornerstone of the new UN agenda was Secretary-General Boutros-Ghali's Agenda for Peace , which developed the concept of “post-conflict peace building”, arguing that UN interventions require political, economic and social support structures in order to address the causes of conflict and to avoid a relapse into hostilities. This new strategy was subsequently reaffirmed by the Agenda for Democratisation , the Brahimi Report and the practice of the Security Council which emphasised at the beginning of the new millennium that peacebuilding operations “should focus on fostering sustainable institutions and processes in areas such as sustainable development, the eradication of poverty and inequalities, transparent and accountable governance, the promotion of democracy, respect for human rights and the rule of law and the promotion of a culture of peace and non-violence”. This agenda is reflected in the peacemaking practice of the UN in the 1990s. Peace-maintenance did not stand still at the ideal of the absence of violence (“negative peace”) or the restoration of the status quo ante . Intervention was more systematically coupled with UN initiatives to reform the internal structure of conflict areas, or the will of the organisation to fill political, economic and legal gaps in post-conflict societies.

The status of international territorial authorities varies from case to case. Some international administrations are comparable to traditional peacekeeping missions. Other administrations, however, come much closer to classical state authorities within the exercise of administering powers. This creates difficulties in two areas: the scope of application of privileges and immunities and the accountability of international territorial administrations. The practice of international administration requires new thinking in the area of the law of immunity and the treatment of the accountability of international organisations more generally. Two arguments shall be developed in greater detail here. There is compelling evidence that the principle of functional immunity, which is largely based on operational necessity, cannot be applied to international administrations which exercise powers of government. An absolute standard of jurisdictional immunity collides in such cases with the governmental and human rights responsibilities of the international administration towards the inhabitants of the administered territory. Secondly, the development of international governance mechanisms creates a need for greater diversity in institutional accountability. A distinction may be made in relation to the type of international administration. Traditional forms of accountability based on intra-institutional control or international monitoring are acceptable in the context of governance assistance missions. The exercise of governmental authority with direct powers over individuals, by contrast, requires basic forms of responsibility towards domestic or quasi-domestic actors. The conceptual move: from external to internal responsibility International organisations typically perform functions which are international in nature and detached from the domestic legal order of states.

The turn of the millennium brought a certain shift in strategy. UN administration moved away from comprehensive governance models a la Kosovo or East Timor, and returned to more moderate formulas of international administering authority. The idea of preserving local capacity and domestic decision-making choices in processes of foreign governance is by no means novel. Practices of deference to local rule were well established in the colonial practice of the nineteenth century. British administrators maintained and used certain local laws and institutional structures for the purpose of the administration of African colonies. This practice continued under the Mandate and Trusteeship Systems. Moreover, on various occasions, the UN itself decided to limit its engagement in the field of territorial administration to forms of governance assistance. However, it took some time for the principle of “local ownership” to begin to gain ground in contemporary practice. The notion of “local ownership” emerged formally in the context of economic development assistance. International organisations such as the OECD promoted the principle of “local ownership” in donor policies in the 1990s. The OECD emphasised that that “the peoples of … countries concerned must remain the ‘owners’ of their policies and programmes”, in order to achieve sustainable development and to avoid the pitfalls of donor dependency. In the field of UN administration, this idea began to gain systematic support and recognition after the experiences of Kosovo and East Timor.

International actors have played an active role in the administration of territories over the past two centuries. This book analyses the genesis and law and practice of international territorial administration, covering all experiments from the Treaty of Versailles to contemporary engagements such as the conflict in Iraq. The book discusses the background, legal framework and practice of international territorial administration, including its relationship to related paradigms (internationalisation, mandate administration, trusteeship administration and occupation). This is complemented by a discussion of four common legal issues which arise in the context of this activity: the status of the territory under administration, the status and accountability of administering authorities, the exercise of regulatory powers by international administrations, and the relationship between international and domestic actors. Alongside surveys of the existing approaches and conceptual choices, the book also includes relevant case-law and practice and lessons learned for future engagements.

The international administration of territories raises different legal questions related to the status of the administered territory. The establishment of an international administration may affect the status of the administered territory itself. Moreover, the assumption of territorial authority by an international administration may have an impact on relations between the administered territory and other entities. Status concepts Territories under international administration do not fit easily within traditional status models. There is often dissociation between sovereignty and government. International administrations typically assume powers of government and administration over the administered territory without acquiring ownership or title over the territory. This distinguishes international administration from territorial sovereignty. The scope of authority assumed by international administrations varies from case to case. It may range from mere coordination and assistance in specific sectors of public authority, to the exercise of exclusive jurisdiction. Notions developed in legal doctrine Legal scholars recognised quite early on that the phenomenon of international territorial administration raises status questions which require further specification. International territorial administration has, in particular, been rightly distinguished from historical models of foreign administration within the framework of protectorates and condominia, and from administration within the framework of the Mandate and the Trusteeship Systems. However, most of the alternative classifications developed in legal doctrine suffer from conceptual problems. Some of them are too narrow, because they have been developed in response to very specific types of administration. Others are impractical, because they are too vague and imprecise in scope.

The UN Trusteeship System was built upon the premises of Mandate administration. It was specifically designed to further self-government and decolonisation. Moreover, it operated mainly on the principle of state-based administration. At the same time, the Trusteeship System administration shared some more parallels with modern engagements in international territorial administration than the Mandate System. The Trusteeship system gave rise to two quasi-experiments of direct UN administration: the proposed UN administration of Jerusalem and de jure authority of the UN over Namibia - two examples of direct UN administration exercised after the termination of former Mandates (the UK Mandate over Palestine and South Africa's Mandate concerning South West Africa). Furthermore, the Trusteeship System corrected some of the failings of the League's system of administration and laid some foundations for the conceptualisation of territorial administration under the umbrella of peace-maintenance. Genesis The Trusteeship System has its origins in the negotiations held during World War II. Both the US and the Soviet Union pushed for the dismemberment of the old European empires, and organised bilateral talks on the issue of decolonisation as early as 1942. The first proposal to establish an international forum for the control of colonial policy was prepared by the US Department of State. The draft, known as the “Declaration by the United Nations on National Independence”, proposed the creation of a truly international trusteeship administration, composed of UN representatives, interested nations and the trust territories, which would operate through regional Councils in order to supervise the protection of colonial territories.

In Jus Post Bellum: Towards a Law of Transition From Conflict to Peace