Extracurricular International Criminal Law

This article unpacks the jurisprudential footprints of international criminal courts and tribunals in domestic civil litigation in the United States conducted under the Alien Tort Statute (ats). The ats allows victims of human rights abuses to file tort-based lawsuits for violations of the laws of nations. While diverse, citations to international cases and materials in ats adjudication cluster around three areas: (1) aiding and abetting as a mode of liability; (2) substantive legal elements of genocide and crimes against humanity; and (3) the availability of corporate liability. The limited capacity of international criminal courts and tribunals portends that domestic tort claims as avenues for redress of systematic human rights abuses will likely grow in number. The experiences of us courts of general jurisdiction as receivers of international criminal law instruct upon broader patterns of transnational legal migration and reveal an unanticipated extracurricular legacy of international criminal courts and tribunals.

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

This chapter describes the formation of customary international law in one of the specialized areas of international law, international criminal law. International criminal law is one of the fastest developing fields of international law. Since the two international ad hoc criminal tribunals for the Former Yugoslavia and Rwanda were established by the UN after a long period of silence following the closure of the Nuremberg and Tokyo trial files, the development of customary norms in this field is very difficult to establish. Both the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) had the task and opportunity to pronounce extensively on the development of customary international law within their jurisdiction. The crime of genocide probably constitutes the very core of international criminal law. It acquired its autonomous significance with the adoption of the Genocide Convention by the United Nations General Assembly (UNGA).Keywords: customary international law; Genocide Convention; international ad hoc criminal tribunals; International Criminal Tribunal for Rwanda (ICTR); International Criminal Tribunal for the Former Yugoslavia (ICTY); United Nations General Assembly (UNGA)

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. …

The creation of International Criminal Tribunals (ICTs) promote the cross-fertilization of international criminal law (ICL) jurisprudence, enriching ICL (both procedurally and substantive) as a growing discipline. At the same time, however, one should bear in mind that the proliferation of ICTs could, in its effect, also result in some adverse consequences for a spontaneous development of ICL. In particular, regional and ad hoc ICTs in specific regions of post-conflict, such as the United Nations (UN) Special Court for Sierra Leone, have resulted in several convictions of the most responsible individuals, such as Charles Taylor. Noticeably, the International Criminal Tribunal for the former Yugoslavia (ICTY) has contributed to the development of national war crimes chambers in the former Yugoslavia, while the International Criminal Tribunal for Rwanda (ICTR) has contributed to the criminal justice system in Rwanda, so that several ICTR-cases could be transferred to Rwanda for trial.Keywords: Charles Taylor; ICTY; international criminal law (ICL); International Criminal Tribunal for Rwanda (ICTR); International Criminal Tribunals (ICTs); war crimes

The Nuremberg tribunal was the expression and the beginning of states' recognition of their duty to prosecute genocide and other gross human rights violations. It was a first step towards fulfillin...

The author discusses the relationship between international criminal law and national criminal law. The relationship between international and domestic law is a perennial issue in the theory and practice of international and constitutional law. Slovenian law recognises the supremacy of international law over national laws and regulations but maintains the supremacy of the Constitution over international law. Customary international law poses the greatest problem in the relationship between international and national criminal law. Unlike international law, which considers customary law an extremely important source, national criminal law expressly prohibits using customary law because of the principle of legality. In Slovenia, the principle of legality in criminal proceedings is also expressly enshrined in Article 28 of the Constitution. The author considers that, by adopting the Act on Cooperation between the Republic of Slovenia and the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda, Slovenia has ratified instruments of international law which are contrary to Article 28 of the Constitution of the Republic of Slovenia. A similar finding applies to the Rome Statute of the International Criminal Court. Such a conflict can only be resolved in two ways: either by denunciation of the treaty or by amendment of the Constitution. The author cannot predict how the legislator will decide.

International criminal law is a legal fiction; it is deemed to exist whereas in reality, it is still a work in progress. The creation of international criminal law as a physical and legal entity is a byproduct of necessity. The Rules of Procedure and Evidence of both the International Criminal Tribunal for Rwanda (ICTR) and the International Criminal Tribunal for the former Yugoslavia (ICTY) state categorically that the tribunals are not bound by any principle of national law. The convergence of the common law and inquisitorial systems of law in international criminal law is fraught with difficulties because of the differences between the systems. Both the adversarial and inquisitorial trial aim to expose the guilt or innocence of the accused but the way in which they arrive at this destination differs. The rules restricting the admissibility of hearsay evidence are an invention of the common law. Keywords: common law; ICTY; inquisitorial systems; International Criminal Court (ICC); International Criminal Tribunal for Rwanda (ICTR); international law

The question of change has emerged as one of the main conceptual and empirical challenges for International Relations' practice turn. In the context of international law, such a challenge is brought into particularly stark relief due to the significant development of legal meaning through more informal, interpretive avenues, including through the judgments of international courts. This paper develops a framework for theorizing how interpretive legal practices generate normative content change in international law. Specifically, it uses the example of the development of international criminal law through the decisions of international criminal courts to analyze how legal interpretation can lead to normative change in practice. Drawing on interviews conducted with judges and legal officers at the International Criminal Court (ICC), the International Criminal Tribunal for the former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR), and the Special Court for Sierra Leone (SCSL), I analyze how a community of legal practice centered around these courts was able to construct and alter legal meaning in international criminal law, and how such a potential for change was curbed by understandings of the interpretive process and the role of international courts dominant among international lawyers.

International criminal law is often seen as more progressive than many domestic legal traditions in its consideration of gender-based crimes such as rape. That said, domestic legal traditions have profoundly influenced how international criminal law has addressed gender-based crimes, especially crimes of sexual violence. In turn, international criminal law has also, to a lesser extent, influenced domestic law on gender-based crimes, again especially with respect to sexual violence. This seems to indicate an ongoing dialogue on sexual violence between the international and national spheres, but a closer examination raises questions about the appropriateness of that exchange. For example, have the correct domestic laws been considered when searching for international general principles of law on rape? Has gender-based discrimination in domestic laws been taken into account when considering the lessons those laws provide to international criminal law? And, perhaps most central to the consideration of whether there should be a flow of influence from the domestic to the international and back to the domestic: are the circumstances of international criminal law—namely the context of genocide, crimes against humanity or war crimes—so different from domestic circumstances that there can be no useful comparison? This article begins with an examination of two examples of the flow from domestic to international criminal law. The first example relates to how rape has been defined by international criminal courts and tribunals. It demonstrates that, after an initial rejection of engagement with the domestic sphere, international criminal law has cautiously (in the case of the International Criminal Court) or fully (in certain cases before the International Criminal Tribunals for the

The question of change has emerged as one of the main conceptual and empirical challenges for IR’s practice turn. In the context of international law, such a challenge is brought into particularly stark relief due to the significant development of legal meaning through more informal, interpretive avenues, including through the judgments of international courts. This article develops a framework for theorizing how interpretive legal practices generate normative content change in international law. Specifically, it uses the example of the development of international criminal law through the decisions of international criminal courts to analyze how legal interpretation can lead to normative change in practice. Drawing on interviews conducted with judges and legal officers at the International Criminal Court (ICC), the International Criminal Tribunal for the former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR), and the Special Court for Sierra Leone (SCSL), I analyze how a community of legal practice centered around these courts was able to construct and alter legal meaning in international criminal law, and how such a potential for change was curbed by understandings of the interpretive process and the role of international courts dominant among international lawyers.

Theodor Meron has been a Judge and, between March 2012 and January 2019, was the President of the International Residual Mechanism for Criminal Tribunals (the Mechanism). He was also a Judge of the Appeals Chambers of the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda from November 2011 until the closure of those tribunals. He served a total of four terms as President of the ICTY and three terms as President of the Mechanism. A leading scholar of international humanitarian law, human rights and international criminal law, Judge Meron is the author of thirteen books on international law and chivalry in Shakespeare and more than 100 articles, including some of the books and articles that helped build the legal foundations for the international criminal tribunals. His most recent book is Standing up for Justice (Oxford University Press, 2021).He is a member of the Institute of International Law and of the Council on Foreign Relations, a Fellow of the American Academy of Arts and Sciences, and the recipient of numerous awards, honours and medals, such as the Hudson Medal (American Society of International Law) and the Haskins Prize (American Council of Learned Societies). He is also an Officer of the French Legion of Honour, Grand Officer of the French National Order of Merit, Officer of the Order of Merit of Poland and Companion of the Order of St. Michael and St. George (United Kingdom). A past honorary President of the American Society of International Law and past Editor-in-Chief of the American Journal of International Law and Visiting Fellow of All Souls College, Oxford, he is Charles L. Denison Professor of Law Emeritus at NYU Law School and, since 2014, a Visiting Professor of Law at Oxford University. He is a Visiting Fellow at Mansfield College, an Academic Associate of the Bonavero Human Rights Institute and an Honorary Fellow at Trinity College.

This chapter considers the accuracy of interpretations and, to some extent, translations in international and hybrid criminal courts settings and looks at the effects of both linguistic and paralinguistic (nonverbal) misinterpretations on the effectiveness of the international criminal process and, in particular, the effects these can have on the quality of trials, procedural fairness, and ultimately defense rights. Specifically, the rights to seek and expect from international criminal courts and tribunals competent and effective language services, as well as the corresponding right to review translated transcripts and relevant documents, are considered here. As this chapter tries to demonstrate, the protection and further development of these specific rights are essential to the requirements of procedural fairness alongside the rights to equality before the law, equality of arms, and the right to a fair trial. Although statutes and rules of international courts and tribunals assert that equal treatment before the law, as recognized in international human rights law, requires that there be no significant disparity in trial and punishment regimes in individual cases, there remain considerable outcome problems in these complex multilingual and multicultural settings. Right to equality before the law and the right to a fair trial are examined here with a particular reference to the International Covenant on Civil and Political Rights 1996 (ICCPR) Article 14. Case law reveals in fact that equal and equitable protection of fundamental procedural pretrial and trial rights remains inconsistent and that the determination of the nature of ICCPR provisions is contradictory. Given the complexity of most international criminal trials, some practical interpretation and translations problems may be readily recognized and anticipated. Nevertheless, the responsibility to fully explore reasons and conditions that lead to potentially procedurally and ethically unjust trial outcomes rests on the judiciary. The responsibility to provide effective remedies in individual cases rests on them too. Importantly, these courts and tribunals are based and legitimized on the basis of their legal foundations and principles deriving from the rule of law, such as independence, transparency, and accountability. In turn, the rule of law increasingly requires that international justice is administered by applying norms that promote and protect elevated, and not just minimum, human rights standards and fundamental values of equality, fairness, and justice. By analyzing statutes and rules of procedure and evidence of international courts and their proceedings as well as studying court transcripts and simultaneous translations in different international criminal law jurisdictions (mainly the International Criminal Tribunal for the former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR), and the International Criminal Court), the chapter examines whether the review of court transcripts in the second (translated) language could amount to a procedural right in international criminal law.

The article is devoted to one of the aspects of the problem of correlation between international and domestic law, namely the relationship between international and national law. This relationship is developing dynamically. The development of the interconnectedness of international and domestic law occurs in connection with the constant increase in the number of international treaties and national legal acts aimed at regulating social and domestic relations, which is the object of international cooperation. At present, trends in the further development of international law and its interaction with national legal systems have begun to emerge clearly. The process of globalization has strengthened the interconnection of states, expanded the range of intrastate social relations that are a common object of regulation of two legal systems - the international legal system and the domestic legal system. Based on the analysis of the provisions of the general theory of law and the doctrine of international law and international normative acts, the theoretical and legal problems of the relationship between domestic and international law are considered. It explores the social and legal nature of the relationship between the two legal systems and explores the importance of harmonizing domestic state law with international law. It is noted that although international law and domestic law have a single social nature, they functionally act as two relatively independent and closely interacting and interdependent systems of law. The nature of their interrelations, methods and forms of interaction, as well as their functional connection, interdependence and the role of the state in this process are revealed. It is emphasized that the relationship and interaction are not limited only to the norms of the two legal systems, but cover the two legal systems as a whole. Consequently, there must be harmonization of the norms of national law with all sources of international law, including with the individual international obligations of states. The article notes that the state is a participant in the creation of legal norms of both domestic and international law. The process of coordinating the will or position of states when concluding international treaties is regulated by the norms of international law, and the process and procedure for expressing these declarations of will or positions are determined by the norms of national law. At the same time, international law does not belong to the legal system of specific states, although in fact it is part of all legal systems. If the object of regulation coincides, the norms of international law always take precedence over domestic ones. According to the author of the article, the concept of a legal conflict should not be identified with the invalidity of international treaties. It is argued that the case of conflict occurs only with a valid contract. It is also emphasized that many norms, enshrined in international law by treaty or customary means, acquire the character of jus cogens and therefore are binding on all states, regardless of ratification or accession to certain treaties or agreements. The article points out that international law imposes an obligation on the state as a whole, but it is domestic law that determines state bodies and officials who are responsible for fulfilling the international obligations of the state.
 The purpose of the article is to theoretically clarify the essence of the relationship and interaction between international and domestic law, to identify the importance of harmonizing domestic legislation with international law and the grounds for the priority of international norms over national law.

INTRODUCTION. The practice of modern international criminal courts and tribunals raises serious questions about the proper enforcement of the rights of the accused. Among these rights, the accused's right to compensation is highlighted. Compensation is given to the accused (regardless of the verdict) for violation of his procedural rights and fundamental human rights and compensation to the acquitted person.MATERIALS AND METHODS. The analysis of ensuring the human right to compensation in the event of an unjust sentence is carried out on the basis of international human rights treaties, treaties on the creation of international courts, including appeal to the travaux preparatoires of the Statute of the International Criminal Court (ICC) and the practice of international criminal courts and tribunals, especially the ICC, as well as the International Tribunal for Rwanda and the International Tribunal for the Former Yugoslavia. The study was conducted using general scientific methods of cognition (in particular, analysis and synthesis), as well as comparative legal, historical legal and formal dogmatic methods. To achieve the corresponding conclusions, various methods of interpretation of the rule of law are used, in particular, grammatical, systematic, teleological, harmonic, etc.RESEARCH RESULTS. In the activities of international criminal courts and tribunals, a violation of the accused’s right to a hearing within a reasonable time is systemic, including due to the absence of any procedural deadlines on the one hand, and the absence of any rules (or their non-application) to restore the rights of the accused and punishment of the party who committed the violation of these rights. This situation poses serious problems of ensuring the rights of specific accused (including justified), but also the development of modern international criminal procedural law and international human rights law.DISCUSSION AND CONCLUSIONS. National legislation and international human rights instruments provide for the right of an acquitted person to compensation. In international criminal courts, this issue, however, is addressed in different ways. The statutes of international criminal courts ad hoc created by the UN Security Council do not mention the right to compensation for an accused or acquitted person. At the same time, the International Criminal Tribunal for Rwanda recognized that the absence of a reference to law in the Statute of the Tribunal does not mean that the persons concerned do not have the corresponding right. At the same time, this recognition did not have practical consequences. The Statute of the International Criminal Court recognizes the right to compensation, however, does so to a limited extent. Thus, in international criminal courts and tribunals, the provision of the human right to compensation (primarily compensation to an acquitted person) is performed at a lower level than that established in international human rights treaties.