Commentary on the Hague Principles on Ethical Standards for Counsel Appearing before International Courts and Tribunals

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.

[, In August 2010 the ILA Study Group on the Practice and Procedure of International Tribunals presented the ‘Hague Principles on Ethical Standards for Counsel Appearing before International Courts and Tribunals’. Although these Principles are not intended as a comprehensive code, they represent a first step towards minimum and common ethical standards and principles for counsel and other representatives of parties before international courts and tribunals. The principals are intended to stimulate debate in the wider international community and contribute to future developments.]

This paper explores the relationship between international war crimes tribunals and reconciliation in post-conflict societies. The aim of the present study was to examine how the role of international war crimes tribunals has changed in the peacebuilding process since 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 in post-conflict societies. The International Criminal Tribunal for the former Yugoslavia (ICTY) was the first international tribunal with a mandate to contribute to international peace and security. The ICTY established a new precedent for the role of international tribunals. Not only did it secure accountability for past abuses, it made a significant contribution to the development of the rule of law in the region of the former Yugoslavia. As the first international criminal court since the Nuremberg tribunal and the first UN tribunal of its kind, the ICTY provides an important model for future judicial intervention in the aftermath of conflict. It has shown the extent to which international war crimes 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.

I want to make three points in connection with David's lecture, looking at his subject from my own perspective, i.e., that of a judge in an international criminal tribunal. First, I want to consider the specific function of international criminal courts and tribunals as finders. Secondly, I will examine how international criminal courts fit into David's theoretical picture of top-down versus bottom-up judicial bodies. Thirdly, I wish to convey some of my concerns arising from the multiplication of proceedings (criminal and civil) arising from the same facts before different international courts and tribunals. International Criminal Courts as Truth Finders A new feature of the international legal order in the past few decades has undoubtedly been the reemergence of international criminal courts, with the ad hoc criminal tribunals of the United Nations (the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR)), the regional mixed international tribunals (Sierra Leone, Cambodia, East Timor), and the permanent International Criminal Court (ICC). The driving impulses behind the creation of these institutions may, as David mentioned in his lecture, differ from those behind the classical international courts and tribunals. One of the functions of international criminal law courts is that of providing a historical account and achieving reconciliation of post-conflict societies that have gone through a painful episode of mass atrocities. This is something which they share with another newcomer in the international legal order, and reconciliation commissions (TRCs), which in part originate from the same generating impulses. The latter may even be complementary to international criminal adjudication, as Tom suggested in his Holocaust memorial lecture, wondering whether the post-World War II criminal proceedings in Nuremberg should not have been complemented by a commission that could have examined the greater patterns of the historical behind the holocaust. (1) According to some, international criminal courts have, as far as finding process is concerned, little to add to the truth as it is revealed by journalists or historians, who base themselves on largely the same sources. I beg to disagree with that view. The finding process before criminal courts is of a different qualitative nature, because it is obtained through the specific rules of evidence that apply in criminal proceedings, above all the presumption of innocence and the prosecutorial burden of proof. What has been established by a criminal court following a correct procedure can therefore be said to be more credible in terms of its truthfulness than the produced by journalism or history writing. For example, for those who would wish to deny the Srebrenica massacre, it may have been easier to do so when only journalistic and historical accounts of the 1995 event were available than it is today after the judgments of the ICTY in which two panels of judges (first the Trial Chamber and thereafter the Appeals Chamber) found the facts to be established. This function of finding, and the contribution to history writing that results from this, may be one of the core missions for international criminal courts. In post conflict societies, different versions of the traumatic events often compete with each other. (2) It is extremely difficult for national courts in a post conflict society to make an unbiased assessment of these different versions, especially shortly after the events. This assessment is, however, a crucial factor in the process of transition. Without it, post conflict societies will have little more than annals of these traumatic events, produced by journalists and historians. (3) Through the process of judicial fact finding, international criminal courts help to sort out competing accounts of traumatic events in a conflict situation and to determine the account that will count as the official history that society. …

Climate change is the justice challenge of our century, and the increasingly serious impacts of climate change on human societies and ecosystems are raising important international legal challenges. States and stakeholders are appealing to international courts for clarity concerning their responsibilities in the global response to climate change, as well as their accountability for climaterelated loss and damage. Through advisory proceedings, these institutions are being asked to clarify the legal obligations of States in addressing climate change, including the prevention of ocean impacts, the protection of human rights, and in international law more broadly. The International Tribunal for the Law of the Sea (ITLOS), the Inter-American Court of Human Rights (IACtHR) and the International Court of Justice (ICJ) are at the forefront of such proceedings with the potential to reshape international climate law and governance. In this article, expert legal scholars highlight the significance of climate advisory proceedings in these tribunals, briefly underlining the legal reasoning of the ITLOS advisory opinion, its implications for international climate governance, and the questions and arguments before the IACtHR and the ICJ. The article explores, in the context of global efforts to implement the Paris Agreement under the United Nations Framework Convention on Climate Change (UNFCCC) and other climate litigation including in international courts and tribunals, the transformative potential of recent advisory opinions sought from the ITLOS, the IACtHR and the ICJ. In their responses to the pressing need for legal clarity in a world grappling with unprecedented climate challenges, the article suggests, courts are offered an historic opportunity to shape the contributions of international law to global sustainability, justice and the survival of life on Earth.

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,

This article inquires how the EC courts deal with judgments of other international courts and tribunals, such as the European Court of Human Rights, WTO tribunals, and panels set up by the EC’s proliferating number of bilateral agreements. Having reviewed the case law to date, the essay focuses on one question in particular: should the EC courts consider themselves bound by rulings of other international tribunals? Although the ECJ recognized in the early 1990s that it might be so bound, to date it has never accepted this in actual case. The article submits that, in the absence of a specific instruction in a particular international agreement, there are strong reasons for the EC courts not to bind themselves a priori to rulings of other international tribunals. The EC Courts should normally follow the rulings of the international tribunal, but should keep the power to deviate from another international ruling in narrowly defined circumstances. Reference is made to the practice of national courts. Allowing the EC courts to perform such limited checks and balances should not weaken the Community’s credibility as a reliable negotiating partner. It will also facilitate the domestic reception of international law in the EC legal order.

This chapter compares international criminal tribunals and courts with the so-called mixed or internationalized tribunals and courts, and examines the reasons underlying the establishment of these particular mixed or internationalized courts. It also considers the main practical and legal problems that these courts are facing, focusing on the experiences of Kosovo, East Timor, Cambodia, and Sierra Leone, along with areas where new internationalized courts could or might be established in the near future. A general outlook for international criminal justice is also presented. The chapter argues that there is no single response to the multifarious aspects of international criminality, and that mixed or internationalized criminal courts and tribunals may prove to be one of the most effective societal and institutional devices currently available to international lawmakers.

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

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

The idea of a permanent international criminal court has been on the international agenda for much of this century. After World War I unsuccessful attempts were made to bring the German Emperor to trial before an international tribunal and, later, to try Turks responsible for the genocide of Armenians before a tribunal to be designated by the Allied Powers. In 1937, following the assassination in 1934 of King Alexander of Yugoslavia by Croatian nationalists in Marseilles, treaties were drafted to outlaw international terrorism and to provide for the trial of terrorists before an international tribunal, but states lost interest in this venture as war approached and no state ratified the treaty for an international criminal court and only one (India) ratified the treaty outlawing international terrorism. The establishment of the Nuremberg and Tokyo international military tribunals to try the principal leaders of the Nazi and Japanese regimes after World War II as a natural culmination of the pre-war debate over an international criminal court and set the scene for renewed attempts to create a permanent international criminal court.

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.

Beneath the calm and measured prose of Dr. Caroline Foster lies a tsunami for the field of risk assessment in international adjudication.Dr. Foster, a senior lecturer at the Faculty of Law, University of Auckland, looks boldly in the eye the difficult question of the influence of scientific evidence on international courts and tribunals. In an era where international law is endeavouring to come to terms with environmental protection, sustainable development, and public health and safety regulations and policies, international tribunals are called upon to adjudicate matters of extreme scientific complexity and, in this context, to understand the scientific approach to risk. One can no longer escape the realisation that judges and arbitrators on international tribunals rely on scientific expertise, and that this has a significant impact on their decision-making. This is one of the central tenets of Dr. Foster's book, and the basis for her analysis.

The Governance of International Courts and Tribunals: Organizing and Guaranteeing Independence and Accountability - A Appeal for Research