An Investigation into the Ruling of International Tribunal for the Law of the Sea in the Norstar case

In the process of creation of international criminal tribunals not only criminal procedure sui generis was designed but also for the first time detailed powers of prosecutor had to be adapted to specificity of their functioning. Procedure of international criminal tribunals creates new foundations to the position of prosecutor. The role that is played by this organ in international justice system depends mainly on the position of the tribunal itself. The creators of international tribunals applied legal instruments from several legal systems choosing solutions that seemed most appropriate for organs of international justice. In the consequence such procedure constitutes an amalgamate of common law institutions and solutions used in continental legal systems. In the negotiations during creation of the International Criminal Court for many years the best solutions were discussed and designed. Several questions regarding the shape of procedure had to be answered. The answers influenced not only the powers of prosecutor but also the role of tribunal. The place of prosecutor as an organ of the tribunal was the first issue of fundamental importance. International military tribunals in Nuremberg and Tokyo did not create prosecutor as an independent organ. Prosecutors acted only in the name of the victorious governments. It was only with creation of ad hoc tribunals – International Criminal Tribunal for former Yugoslavia and International Criminal Tribunal for Rwanda – that prosecutor became an independent organ, equipped with his own powers. At the time being, in the procedure before the International Criminal Court independence of prosecutor is the fundamental element of his status and is protected equally to independence of judges. Secondly, the choice between opportunity and legality of prosecution had to be made. It was agreed that prosecutor should take actions only in the most severe situations regarding most serious violations of international criminal law when specific circumstances indicate that they are in the interest of an international organ of justice. Perpetrators of international crimes are usually too numerous to be brought to justice before an international organ. In such situation it is accepted that prosecutor should initiate criminal proceedings only when he sees the procedure to be in interests of international justice. The issue of initiation of procedure was equally crucial. Each tribunal offers to prosecutor such powers, although in the ICC it was one of the most disputed solutions. In the consequence prosecutor plays an important role in the functioning of international justice. Not only he can initiate procedure proprio motu but also chooses situations and perpetrators that should be brought to justice before international tribunals. The shape of pre-trial stage constitutes an amalgamate of different criminal justice systems – both elements of common law and continental legal systems have been employed in order to create procedure most fitted to the specificity of situations that have to be dealt with by international tribunals. Such institutions as disclosure of charges and documents come from common law. Continental legal systems provided solutions of confirmation of indictment and active role of Pre-Trial Chamber in the pre-trial stage. In the consequence system of checks and balances was created – prosecutor conducts the pre-trial stage but most important decisions have to be confirmed by a judicial organ. This article presents powers of prosecutors of international criminal tribunals during the pre-trial stage of proceedings. It focuses on such institutions as power to initiate of proceedings and its limitations, preliminary examination of a case, authorization of investigation, conditions of such authorization and powers of prosecutor to act on a territory of states. Many procedural issues concerning the role of prosecutor have been explained during the judicial activities of ad hoc tribunals. It can be expected that in the jurisprudence of the ICC problems concerning the role of prosecutor of international tribunal will be further developed.

The recent increase in the number of international tribunals, and in their caseloads, has brought to the forefront the role and tasks of international counsel, and the need to address ethical issues and codes of conduct concerning advocacy before these tribunals. In the absence of a common set of principles applicable to all international tribunals to provide guidance to counsel on ethical matters, including issues of conflict of interest, the ILA Study Group on the Practice and Procedure of International Tribunals embarked on a study on the ethical standards for counsel appearing before international courts and tribunals which resulted in “the Hague Principles”. In developing the Hague Principles, the aim of the Study Group was to elaborate a set of guidelines to assist specific tribunals in developing their own codes of conduct, and to provide guidance to counsel on main issues and problems relating to professional conduct before international tribunals. Based on its review of the literature and existing codes of conduct for some of the international courts and tribunals, as well as the experience and views of its members and advisors, the Study Group has identified a set of clear principles that concentrate on the core of the ethical issues, and in particular, on the independence of international counsel and conflict of interest issues.

One the most dramatic development in international law in the 20th century was the formation of international criminal tribunals. Unlike conventional international tribunals, such as the International Court of Justice and the Permanent Court of Arbitration, international criminal tribunals—such as the International Criminal Tribunal for the Former Yugoslavia, the International Criminal Tribunal for Rwanda, and the International Military Tribunal at Nuremberg—are a controversial element of international law and international politics. Precisely because they are aimed at individuals who act under color of law, such as military officials or heads of state, they invoke a number of political challenges. Their combination of international law, human rights, criminal justice, and hotly disputed facts of great moral gravity makes them a subject of intense debate among academics, government officials, and the public at large. Much of the scholarship on international tribunals can be summed up by three periods: pre-Nuremberg, Nuremberg, and post-Cold War developments. Each period reveals shifts in the way that international criminal tribunals were studied and conceptualized in the academic world. In the future, much of the scholarship on international tribunals is expected to be influenced by the impact that the actual tribunals themselves have on international politics.

This thesis explores the relationship between international war crimes tribunals and peacebuilding in post-conflict societies. The aim of the present study was to examine how the role and function of international tribunals has changed since the establishment of the Nuremberg tribunal in the early years after World War II. Due to the evolving nature of international law and the international criminal legal system, international tribunals have become increasingly recognized as an integral component of peacebuilding processes in the aftermath of conflict. As the first international tribunal mandated to restore international peace and security, the International Criminal Tribunal for the former Yugoslavia (ICTY) set a new precedent for international tribunals. Beginning with its establishment, there appeared to be a new trend of using international judicial mechanisms to promote peace and reconciliation in the aftermath of conflict. One important element of change was the increased tendency of international tribunals to engage in public outreach and help build the capacity of national justice sector institutions. As the first international tribunal to succeed the Nuremberg and Tokyo tribunals and the first UN tribunal of its kind, the ICTY has shown the extent to which international tribunals facilitate societal reconciliation is, and will be, understood within the context of the legacies they leave behind. Institutions such as the ICTY will not be judged solely on the merits of the ideals on which they were established, but instead on their concrete successes in the domestic arena and their ability to fortify domestic judicial capacity.

Author is pointing out the problem of interaction between the political nature of the dispute concerned and the competence of international tribunals. To assess such legal interaction the “justiciability” concept is used. This concept, well known from the US and the UK jurisprudence, allow national courts, for the purpose of stable state administration, to exercise “prudency” in invalidating executive acts, guarantee the operation of the principle of separation of powers, preserve the legitimacy of an unelected judicial branch allowing it, at the same time, to participate in a dialogue with the other branches and the public. Despite the fact that the concept initially appeared in the national law, it became equally important for the international dispute resolution system. Using some remarkable recent cases from the supreme national and international tribunals’ practice author concludes that international tribunals are increasingly expanding their own competence to cover issues traditionally reserved for national authorities and/or lying exclusively in the diplomatic realm. The “evolutive” interpretation of provisions of international law adapted by some international tribunals (and other international organs) contradicts their literal meaning as originally intended by the states, is becoming a persistent trend. This entails a natural reaction of national legal systems represented by higher courts: on the one hand, they avoid direct confrontation through maintaining the classical paradigm of respect to international law, and, on the other hand, draw “border lines” designed to limit the jurisdiction of international courts and arbitration tribunals. The politicization of international arbitration is a question that should not be embarrassingly swept under the carpet or considered marginal. Otherwise, there is a risk that it would destroy the international dispute resolution system and, as a consequence, undermine the mechanisms of international law. At the same time, no peaceful resolution of the conflict of jurisdictions is possible without understanding the problem in the legal plane, without joint determination of which cases are justiciable in the international process, and which questions should be considered “political”. Author made the attempt to give a legal definition of the “political question” in the international procedure and formulate legal tests which could help international judges and arbitrators to define, whether they are ready to and whether they should consider the particular case, related to the “political question”, on the merits (and not to recognise it inadmissible on procedural grounds).

Contemporary institutions of international cooperation are very diverse, a particular example of which are international courts and tribunals. The past few decades have seen a very dynamic development of such institutions of international cooperation. Not only do they take an active part in settling regular international disputes between states, but also play a role in implementing state obligations arising under their membership in international organisations. With respect to the latter role, judicial bodies act as not only international courts, but they also perform the functions of constitutional courts, administrative courts and labour tribunals. Moreover, the jurisdiction of international courts and tribunals is being extended onto the process of implementing the international law of human rights and international humanitarian law. From the point of view of international law, the legal status, structure and competence of contemporary international courts and tribunals are very diverse. This is due to the nature and content of their constituent instruments. The determining criterium of classifying a court as international is its formation by an international treaty, usually a multilateral one. Permanent courts formed by such treaties usually operate within the institutional framework of international organizations (ICJ, CJEU, ECHR) and do not have their own international legal personalities. However, it may happen that a permanent judicial body formed by an international treaty operates outside the framework of an international organisation and has its own international legal personality (ICC). This is different compared to the formation of ad hoc judicial bodies. Their legal basis can be both international treaties, including bilateral treaties (e.g. RSCSL-SCSL), and UN Security Council resolutions (e.g. ICTY, ICTR, IRMCT). Some of the international criminal tribunals are the so-called hybrid tribunals. They are specific in nature and are referred to as internationalized tribunals. Their status is clearly different than that of other tribunals, as is the legal basis for their formation and the degree of their internationalisation. Due to the above-mentioned issues, the legal status of international courts is diversified. They need to be analysed against the backdrop of the underlying issue of subjectivity of international law, and also with reference to the law of treaties and the law of the international organisations.

Trial chambers at the international criminal tribunals must accompany their verdict with a written judgement setting forth the judges' reasoning. Due to many factors, judgements at the international criminal tribunals have been notoriously lengthy. These include, among others, the chamber's need to articulate factual findings in detail; the sprawling nature of the crime base in many cases; the accused's senior status and the consequent need to set forth analyses of large quantities of linkage evidence; the joinder of several accused into the same trial; and a tradition of lengthy judgements dating from the earliest ICTY and ICTR trials. If the chamber convicts the accused and decides to impose a penalty of imprisonment, the judges also must set forth the reasons supporting the sentence in the same or a subsequent written judgement. For reasons discussed below, sentencing decisions at the international criminal tribunals, though guided by a large and detailed body of jurisprudence, have been unpredictable and sentences have been often astonishingly lenient considering the extreme gravity of the crimes. This chapter looks at judgement, sentences of imprisonment and other penalties, and post-conviction and post-acquittal procedures at the international criminal tribunals. Though occasional reference is made to internationalised tribunals other than the SCSL, the chapter's main focus is the ICTY, the ICTR, and the SCSL as the most influential internationalised tribunal; these three tribunals have handed down many judgements and sentences and have contributed the bulk of the law on judgement and sentencing.

By what right, or under whose authority, do you try me? This is a common challenge raised by defendants standing trial in front of international criminal courts or tribunals. The challenge comes from the fact that traditionally criminal law is justified as a response of the state to wrongdoing that has been identified by the state as a crime. Nevertheless, since the early 1990s we have seen the development of international criminal tribunals that have the authority to judge certain crimes. This article examines the moral foundation for the authority of international tribunals, arguing that it can be grounded on delegation of powers from the states with primary jurisdiction. The first part of the article examines whether there is any problem, as a matter of principle, in founding the courts’ jurisdictional authority on delegation of powers. It will argue that contrary to David Luban’s view, there is no inherent problem with states delegating their power to punish to other states or to international tribunals. Nevertheless, in making such a decision the ability of the court to provide fair process—a necessary requirement for the court’s ability to issue authoritative decisions—should be taken into account. The second part of the article takes the ICC as a case study and examines whether its jurisdiction can be grounded on delegation of powers. It will be shown that the court’s jurisdiction can indeed be founded on both direct and indirect delegation of jurisdiction from states with primary jurisdiction. This conclusion suggests that other international tribunals created by either multilateral treaties or by Security Council decisions may also be founded on similar grounds

This chapter illustrates that independent from whether international tribunals will manage to catch the hearts of the population of wartorn countries, they will certainly have a major impact on peace-building at the institutional level. Both national and international justice can be crucial in the re-establishment and reconstruction of a state. The chapter focuses on international justice. It first looks at the differences characterising the creation and aims of the International Military Tribunal of Nuremberg (IMT) and the International Military Tribunal for the Far East (IMTFE) in the aftermath of World War II. It then examines the role played by the International Criminal Tribunal for the Former Yugoslavia (ICTY), International Criminal Tribunal for Rwanda (ICTR) and the International Criminal Court (ICC) in the implementation and enforcement of international law, thereby contributing to peace-building. Finally, it considers the special case of the Special Iraqi Tribunal and the Special Court for Sierra Leone. Keywords: ICTY; IMTFE; international criminal court (ICC); international criminal tribunal for Rwanda (ICTR); international justice; international military tribunal of Nuremberg (IMT); international tribunals; peace-building; Special Court for Sierra Leone; Special Iraqi Tribunal

In the course of 2016, international human rights tribunals (ECtHR, IACtHR and ACtHPR) kept on making cross-references to each other’s case-law, as well as to that of other international tribunals. The same has taken place on the part of international criminal tribunals (ICC and ICTFY), at a time of special attention to the preservation of the legacy of the ad hoc tribunals (ICTFY and ICTR). One could have expected the same from the ICJ, as to the case-law of other international tribunals, in its recent decisions in the cases concerning the Obligation of Nuclear Disarmament (2016), keeping in mind the common mission (of realization of justice) of contemporary international tribunals from an essentially humanist outlook.

More than a decade ago, the Eleventh Sokol Colloquium was devoted in its entirety to the problem of Fact-Finding Before International Tribunals. This chapter introduces this subject, identifies some significant issues, and offers some observations based on forty years of litigating before international courts and arbitral tribunals, as well as before national courts—both federal and state—across the United States. Fact-finding by international tribunals, like fact-finding by national courts, can be divided into three parts: production of evidence; admission or rejection of evidence; and evaluation or interpretation of evidence. The chapter focuses on the problems associated with this aspect of the fact-finding function. As a regular practitioner before the Court, as well as before U.S. courts, the author believes that, notwithstanding the obstacles, the International Court of Justice (ICJ) generally does as well as our national courts in finding the facts. Keywords:Eleventh Sokol Colloquium; fact-finding function; international court of justice (ICJ); international tribunals; United States

Caroline Foster's book constitutes an important addition to the literature on international tribunals and the inter-linkage between science and law in the international domain. The book includes a detailed analysis of the place of scientific evidence in international disputes, the role of adjudicators and experts, and the way in which these issues are influenced by the precautionary principle. The book addresses a wide range of disputes and venues, ranging from the World Trade Organization (WTO) to the International Court of Justice and the International Tribunal for the Law of the Sea. The detailed analysis of the different methods through which varied international tribunals deal with scientific evidence (e.g., party-appointed independent experts, cross examination, site visits, court-appointed experts) advances our understanding of the function and dynamics of international tribunals. To give one example, Foster describes the system that was devised by WTO panels for taking expert evidence even though the WTO dispute settlement understanding (DSU) is silent about this issue (at 114�123). One innovative mechanism that was created by the panels is the joint meeting (at 115�116). Joint meetings with experts are generally held between the two substantive meetings between the Panel and the parties, take place over a 1 to 2 day period, and are attended by the panel members, its experts, and the parties and their experts. While these meetings do not constitute a full-blown adversarial process they offer the parties and the panel the opportunity to put the opposing scientific views to deliberative scrutiny. The book advances three recommendations in relation to how the precautionary principle is to be accommodated within international adjudicatory processes (at xvii, 343�44). First the author argues that we should welcome the precautionary influence wielded through expert scientific evidence (whether this be scientific evidence from parties' appointed experts or evidence from court-appointed experts). Secondly,

As the first international criminal tribunals since the end of the Second World War, the International Tribunals have played a significant role in developing and enhancing international criminal law. One important issue that will have to be addressed after the International Tribunals close is the prevention of double jeopardy in national courts. This chapter provides an overview of the double jeopardy issues that could arise after the International Tribunals close, and suggests that a mechanism be established for reviewing claims to prevent double jeopardy violations and for enforcing fair trial standards. It introduces the principles of double jeopardy and non bis in idem . The chapter discusses the application of non bis in idem before the International Tribunals. It contains the author's suggestions on a possible residual mechanism. Keywords: double jeopardy in national courts; international tribunals; non bis in idem

Outreach activities of international criminal tribunals remain as a neglected area in the field of international criminal law. This article draws attention to this very under-researched area and highlights the importance of outreach work in providing international criminal justice. By focusing on the International Criminal Tribunal for the former Yugoslavia (the ICTY) as a case study, the article argues that outreach activities are significant for international criminal tribunals to gain the support of the local populations under their jurisdictions. For the purpose of the article, the ICTY’s main outreach activities are overviewed by using the online data provided in the ICTY’s official website. A detailed analysis of these activities through an engagement with the existing literature shows that delays in the outreach activities, lack of other transitional justice mechanisms, and plea bargaining became the main challenges for the ICTY’s outreach work. These conclusions are significant not only for an evaluation of the tribunal’s legacy in the region of former Yugoslavia but also for deriving “lessons learned” for the other international criminal tribunals and the permanent court International Criminal Court (ICC). International tribunals and courts must learn from the ICTY’s failures and should be vigilant from their establishment till their closure to enhance the public awareness about their work and to gain the support of the local communities under their jurisdictions.

This paper examines the recent trends in regional and international tribunals that relate to the position of the victim in the criminal process. Recent decisions in both the European Court of Human Rights and other international tribunals have illustrated a new and progressive attitude towards the role of the crime victim. This can be attributed, in part, to the breakdown of the public/private divide in human rights law and the mutually expanding parameters of both human rights discourse and criminal law. It is argued here that cross-fertilisation between these disciplines, which is widely evident in current policy making and judicial decision-making, has meant that the traditional failures of human rights law and the criminal law to protect victims are being addressed – at least to some extent. A line of European and international case law has developed which suggests that victims of crime have acquired a number of enforceable substantive rights, similar to those held by victims of abuse of power. While the potential for victims to be further empowered will always be inherently limited in adversarial jurisdictions, it is none the less a welcome development that a clear trend is emerging which indicates that international policy makers and tribunals are viewing criminal justice issues in a much more holistic manner.