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This chapter examines generally the issue of the position of the Defence in hybrid tribunals, more particularly at the Extraordinary African Chambers (EAC) before proposing those reflections on the role of the Defence within the international criminal justice project. When it comes to the EAC, it should be noted that the initial agreement and Statute of the Chambers signed in 2012 did not include any specific provision relating to an institutional representation of the Defence within the institution. However, in 2014, an addendum to the initial agreement was signed between Senegal and the African Union (AU) in order to create a Defence office within the EAC. The ambition of this addendum was clearly to promote the respect for the rights of the Defence at the African Chambers, as noted in the Preamble to the addendum, where the right to a fair trial and the presumption of innocence are reaffirmed as fundamental principles. The chapter then looks at the legal challenges faced by the Defence during the Hissène Habré trial and how they were dealt with by the Trial and Appeals Chamber.

This chapter argues that international tribunals minimize the need to accurately determine the defendant’s guilt by routinely ‘balancing away’ defence rights vis-à-vis other values that are deemed more important, such as ‘combating impunity’ or acknowledging the suffering of the victims. It identifies four different types of such balancing: foundational, procedural, institutional, and systemic. Foundational balancing concerns the (mis)use of the sources of international law. Procedural balancing primarily involves de-emphasizing the importance of defence rights by elevating the (assumed) rights of other actors in the system. Institutional balancing relates to the structural position of the defence at international tribunals. And systemic balancing focuses on how the collective nature of international crimes requires international tribunals to rely on substantive doctrines that make it more difficult to accurately assess the criminal responsibility of individual defendants. Those four types of balancing, this chapter suggests, relegate defendants to the margins of the trial process, significantly increasing the likelihood of unjust verdicts.

It is common in international practice that several states and/or international organizations contribute together to the indivisible injury of a third party. Examples thereof are aplenty in relation to climate change and other environmental disasters, joint military activities and cooperative actions aimed at stemming migration. Such situations are hardly captured by the existing rules of the law of international responsibility. In particular, the work of the International Law Commission, which is widely considered to provide authoritative guidance for legal questions of international responsibility, has little to offer. As a result, it is often very difficult, according to the existing rules of the law of international responsibility, to share responsibility and apportion reparation between the states and/or international organizations that contribute together to the indivisible injury of a third party. The Guiding Principles on Shared Responsibility in International Law seek to provide guidance to judges, practitioners and researchers when confronted with legal questions of shared responsibility of states and international organizations for their contribution to an indivisible injury of third parties. The Guiding Principles identify the conditions of shared responsibility (including questions of multiple attribution of conduct), the consequences of shared responsibility (notably, the possibility of joint and several liability) and the modes of implementation of shared responsibility. The Guiding Principles are of an interpretive nature. They build on the existing rules of the law of international responsibility and sometimes offer novel interpretations thereof. They also expand on those existing rules, backed by authoritative practice and scholarship, to address complex questions of shared responsibility.

This editorial explores some methodological difficulties that might be faced by the practice of the critique of international criminal law (ICL). It more particularly explores what it might mean to do an ‘internal’ critique of ICL, both on a disciplinary level and an intra-disciplinary level. The editorial also addresses two important issues: (i) the ambiguities of the normative agendas of critical legal scholars; and (ii) the difficulty of dialogue between critical legal scholars and positivists. The editorial concludes with the fact that while disciplinary dialogue might not always be possible, it will always take place on a personal, more complex level, in the Leiden Journal of International Law (LJIL) as elsewhere.

This article discusses whether the International Criminal Court (ICC) could be considered as a possible avenue to address the Armenian Genocide. In light of the jurisdictional limits of the Court, it is argued that it is unlikely that it will ever be a suitable forum in this respect. Indeed, not only are the alleged perpetrators all deceased, but the ICC does not have retroactive jurisdiction. Moreover, it might be the case that some factual aspects of the events might make the crimes against humanity characterisation more adequate. The article concludes with a discussion of the necessity of accepting the limitations of law, notably criminal law, in addressing past events of such magnitude. Ignorance of these limitations makes the operation of trying to get the ICC to address the issue akin to the impossible task of jumping hurdles backwards.

‘Is the unilateral declaration of independence by the Provisional Institutions of Self-Government of Kosovo in accordance with international law?’ It is to answer this question that the General Assembly of the United Nations (‘UNGA’) requested an advisory opinion of the International Court of Justice (‘ICJ’). The request, adopted in October 20081 and initially sponsored by Serbia, was triggered by the declaration of independence of Kosovo issued on the 17 February 2008.2 Some two years later, on the 22 July 2010, the ICJ delivered its Advisory Opinion.3 By a 10–4 vote, the ICJ found that the declaration of independence of Kosovo did not violate international law.

The Kosovo Advisory Opinion gave rise to responses that suggest that the Court went too far, or not far enough, depending on one's perspective. In this article, the authors argue that the Court should either have done nothing or gone all the way. By accepting an inadequately drafted question, the Court was necessarily going to give an inadequate answer. This article adopts a strict approach to the legal nature of the question and considers that the ICJ should have declined its competence, not as an exercise of its discretion, but as a preservation of its core judicial function, which does not include primarily the conduct of non-state entities. Going further, the authors suggest that the Court could have rephrased the question and sought to establish the international responsibility of the United Nations, and, ultimately, of Kosovo, which, it is argued, is in fact implicitly recognized by the Court, both politically and legally.

This commentary argues that the Trial Chamber in Katanga adopted an erroneous interpretation of the Statute of the International Criminal Court by limiting the grounds to ne bis in idem on which a challenge to admissibility can be brought after the confirmation of charges. The Trial Chamber held that the ‘commencement of trial’ under Article 19(4) is the moment of the constitution of the Trial Chamber, rather than the making of opening statements. This commentary re-examines the legal reasoning of the Court and advocates a different reading. It also suggests that the Chamber has failed to strike a proper balance between the possibility of making challenges to admissibility and the smooth and efficient working of the proceedings, which compromises the long-term legitimacy of the institution and the interests of justice.

This article covers the past two years of the activity of the International Criminal Court. Ten years after the signature of the Rome Statute, the Court has continued investigating situations in four countries (Democratic Republic of Congo, Uganda, the Sudan and the Central African Republic). The activity of the Court has accelerated, with four indictees in custody in the DRC situation, one public arrest warrant in the CAR situation and two in the Sudan situation. The Court has developed its case law on victim participation and refined its procedural framework, through constant debate between the Prosecutor and the pre-trial chambers. It has also pursued its goal of increasing cooperation with State parties, and raising awareness of the Court through outreach programs. The Court faces difficult challenges in establishing itself as a credible court, balancing the necessary requirements of fairness in a criminal trial and the high expectations of victims and the international community. The recent stay of proceedings and granting of release in the Lubanga case, which is supposed to be the first trial of the Court, is an illustration of this challenge and the difficulty in finding this balance.

The Prosecutor of the International Criminal Court is a central figure of current international justice. Given his fundamental role in the choice of situations to investigate and cases to prosecute, he will certainly shape the way the work of the Court will be perceived. In exercising his discretion, the Prosecutor will need to balance the interests of victims and the defence, accommodate the will of States and the pressure from NGOs. This balancing act first takes place at the preliminary phase where the genuineness of the information provided will need to be evaluated. During the formal investigative phase, the OTP needs to carry out its duties independently from a financial and political perspective, while trying to obtain the cooperation of States without which no investigations will be possible, respecting the rights of the defence and the views of the victims, all this under the supervision of the Pre-Trial Chamber. If this Samson at the International Criminal Court pulls on his binds too much, he risks bringing down the temple of international justice.

French Abstract: L’adhesion de la Palestine au Statut de la Cour penale internationale le 1er Janvier 2015 souleve de nombreuses questions tant politiques que juridiques. La presente note fournit des eclaircissements sur les differentes options qui s’offrent aux politiques en fonction de l’etat des lieux juridique. Cette note propose de considerer ces options sous un angle pratique, sur la base d’un fondement theorique solide.Juridiquement, cette adhesion souleve des questions difficiles de droit international relatives a l’acquisition de la qualite d’Etat. Malgre les ambiguites du droit applicable en la matiere, il est peu probable que l’adhesion de la Palestine a la CPI soit remise en cause a l’avenir.Deuxiemement, concernant l’exercice de la competence de la CPI, notamment en ce qui concerne les evenements survenus a Gaza a l’ete 2014, il convient de noter que, si une enquete preliminaire a bien ete ouverte, nous sommes encore bien loin d’un proces. Pour bien saisir la complexite de la procedure, il est important de bien poser le cadre juridique en ce qui concerne le droit applicable, la competence temporelle, territoriale et personnelle de la Cour, la complementarite et la cooperation.En definitive, au-dela du droit applicable, se posent de reels choix strategiques aux differents protagonistes. Quelle sera la strategie d’enquete du Procureur en matiere de choix des crimes allegues a poursuivre ? Quelle sera la strategie de cooperation des responsables Palestiniens qui ont pris le risque de voir leurs actions scrutees par la Cour du fait de leur adhesion ? Surtout, la question se pose de savoir si une strategie de refus de cooperation d’Israel avec la CPI serait la plus productive a long terme pour sortir de l’isolement.La note souligne l’importance de bien comprendre la complexite des enjeux juridiques d’un point de vue pratique, afin d’eviter les a priori et les raccourcis en ce qui concerne la procedure qui pourrait etre suivie dans les annees a venir a la CPI. Plus particulierement, il convient de ne pas presupposer un quelconque biais de la part du Bureau du Procureur vis a vis des protagonistes du conflit.English Abstract: Palestine joining the International Criminal Court on 1 January 2015 gives rise to a number of political and legal questions. The present legal opinion, in French, sheds light on the different options available to stakeholders on the basis on the legal state of affairs. This legal opinion, grounded on a solid legal analysis, aims at considering these options from a practical perspective. Legally, Palestine joining the ICC touches upon complex international law issues regarding statehood. Despite the ambiguities of the applicable law in that field, it is unlikely that Palestine’s membership to the ICC will be seriously put in question in the future.Given this state of affairs, it is important to focus on the actual consequences of this membership in relation to ICC procedure, particularly in relation to investigations conducted by the Prosecutor. In that respect, it should be stressed that, while a preliminary examination has been initiated by the OTP in relation to the events that occured in Gaza during the summer of 2014, we are still very far from an actual investigation, let alone a trial. Understanding the complexity of the procedure requires a solid understanding of the ICC legal framework in terms of jurisdiction (temporal, territorial and personal), admissibility and cooperation.Ultimately, faced with this new situation, the various stakeholders will have to make serious strategic choices. What will be the OTP’s investigation strategy? How will the Palestinians react to the possibility of their own actions coming under the scrutiny of the Court as a result of their joining the Court? Would a strategy of non-cooperation on the part of Israel really be the most productive in the long-run to avoid international isolation?Ultimately, this legal opinion underscores the importance of having a good understanding of the complexity of the legal landscape from a pratical perspective in order to avoid biases and over-simplifications about the procedure that could be followed at the ICC in the years to come. More particularly, no bias can or should be pre-supposed on the part of the OTP in the conduct of the investigations.

This chapter will discuss the relevance of sovereignty, both as a legal norm and a concept, in the context of jus post bellum situations. The chapter first illustrates this relevance through a number of examples that bring sovereignty into play in contemporary international law that might apply in post-conflict situations (self-determination, statehood, accountability mechanisms), before suggesting a conceptual framework to think about these transformations of sovereignty in a holistic way, through a re-adaptation of Georges Scelle’s Role-Splitting theory. What this chapter suggests is that, while the evolutions of sovereignty need to be acknowledged, post-conflict policies need to aim at religitimizing the state, rather than target it as an obstacle.

The interaction between fact-finding bodies and international criminal courts and tribunals has been subject to growing attention in past decades. There is a visible trend in UN practice to charge fact-finding missions with mandates involving (quasi-) criminal investigation or the determination of accountability of specific actors (e.g., individuals or groups) for human rights violations. In existing discourse, it is frequently assumed that this increased focus on criminalization supports the prevention or prosecution of atrocity crimes. This chapter re-visits this claim. It argues that the impact and use of the findings of fact-finding bodies for criminal investigations and prosecutions depends on a number of key parameters, namely (i) the nature of fact-finding entities, (ii) the relevant addressee in the criminal process (e.g., Prosecution, Defence, Judges), (iii) the stage of proceedings, (iv) the type of decision, and (v) the nature of evidence. These parameters provide a basis for a more nuanced assessment of institutional interaction that takes into account the different ‘centres of gravity’ of fact-finding and criminal proceedings. Based on analysis of these five parameters, and relevant practice and jurisprudence, it appears misleading to frame the link between external fact-finding and international criminal justice in terms of a natural continuum. It is more appropriate to conceptualize interaction based on a sliding scale. Materials, documents and testimony provided by fact-finding bodies have undisputed relevance to ‘context’-related evidence. They may also support other functions in the criminal process. But they are by no means determinative for the outcome of investigations and prosecutions.

This chapter discusses the trials that took place in France after World War II to prosecute those accused of collaborating with and actively promoting the agenda of the Nazi occupiers. It first details the legal framework set up to try collaborators, which included both the use of existing provisions of the Criminal Code and the creation of a new offence, that of indignité nationale, or national indignity. It then highlights the difficulties of such judicial proceedings with two examples, the trials of political leaders Philipe Pétain and Pierre Laval. The chapter concludes with some general thoughts on the evasive question of historical truth.

The renaissance of international criminal law in the 1990s not only altered the landscape of international law, but has had an impact on international fact-finding. Analysis of mandates and reports of international commissions of inquiry established by the United Nations reveals that international criminal law concepts have migrated into their investigations, findings and recommendations. This chapter tracks this migration of international criminal law from the courtroom and explores how an increased focus on international criminal law may affect the quality of the fact-finding process. A focus on international crimes has an influence on both substantive and procedural dimensions of fact-finding. Ultimately, these questions lead to an inquiry into the fundamental notion of 'quality'. An international criminal law-focus might contribute to a more rigorous fact-finding methodology, thereby increasing certainty in findings. However, when 'quality' is considered as a wider notion linked to normative and narrative agendas, an international criminal law-focus may limit the utility of fact-finding.

This chapter provides a thorough overview of the elements that compose the fragmented debate on amnesties, whether in international law, within international criminal law and other levels, vertical and pluri-disciplinary. It focuses on the recognition in international criminal law and more specifically by international tribunals, most notably the International Criminal Court, but also any hybrid institution that might be created in the future to deal with a specific situation. The chapter considers how the institutional framework set up by the United Nations Transitional Administration in East Timor (UNTAET) chose to deal with the question of amnesties. Finally, it concludes defragmentation by considering the impact of pluridisciplinary fragmentation on international criminal tribunals. Keywords:amnesties; international criminal court; international criminal law; international criminal tribunals; UNTAET

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.