Istina u međunarodnom krivičnom pravosuđu, istina u tranzicionoj pravdi i pravo na istinu

This report seeks to place criminal justice reforms at the center of ongoing transitional justice debates and discussions in Sri Lanka. The country is eight years on from the end of the war, and in the early stages of its own transitional justice processes. The four mechanisms promised by the Government are either not yet operational (the Office of Missing Persons) or do not yet exist (the truth commission, the special court, and the office for reparations). While everything that is transitional justice related has received much energy and attention, much needed criminal justice reforms have received very little or arguably no attention at all. There is a serious danger that the special court and its prosecutorial mechanism—the primary avenue for criminal accountability for past wrongs—will be conceived in isolation to the existing criminal justice system. However credible, such a mechanism, necessarily temporary and which will address a relatively small number of cases, cannot be a substitute for an entire criminal justice system. The existing criminal justice system must be contended with and it is artificial and dangerous to discuss criminal accountability and the special court without equally considering the failures of the existing criminal justice system and the many aspects of the system that warrant urgent reform. This report highlights the need for developing a comprehensive criminal justice reform agenda that looks at the system holistically and to that end maps out the problem areas and the reforms needed. Alarmingly, however, the Government appears to be adopting a strategy of ad hoc, piecemeal and sporadic criminal justice reforms. This is evidenced by a number of reforms impacting on the criminal justice system either effected or attempted since the transitional justice commitments were made in September 2015. These are discussed in Part 1 of this report. Many of these came to fruition in almost total secrecy and/or are deeply flawed in substance. The haphazard approach to reforms signaled by what has happened to date raises concerns about the reform attempts yet to come. It also raises concerns about whether and how the problems of the criminal justice system—central to ensuring meaningful access to justice for all in the long run—will be addressed. The extent of the problems in the existing criminal justice system have been surveyed and extensive recommendations for reform made by a variety of national and international bodies. Part 2 of this report brings together, thematically grouped, recent recommendations made by the Consultation Task Force, the Special Rapporteurs on torture and the independence of the judiciary, the UN Committees on Torture and the Elimination of Discrimination Against Women, and the Prime Minister’s Task Force on Violence Against Women. These observations and recommendations highlight the nature of reforms that are necessary, both to overhaul the criminal justice system as a whole and to give meaningful effect to the transitional justice mechanisms themselves.

The article analyzes the activities of international treaty bodies and the grounds for the emergence of powers in them regarding the interpretation of international treaties. There are legal and factual grounds for the emergence of jurisprudence practice in international control bodies. As for legal grounds, the only such indisputable basis is an international treaty by which the participating states grant the international body the appropriate powers.The actual reasons for the emergence of jurisprudence may be the vagueness of the international treaty itself, the need for the international body to explain in the relevant evaluation report the state’s compliance with its international legal obligations under the international treaty, the reason for the passage of time to give the obligations the character of «living law», as well as factors globalization and regionalization.The question of the use of fictitious or immanent powers is investigated. In the case when an international body departs from a general understanding of its contractual powers, then one speaks of immanent powers. Otherwise, the international body tries not to go beyond the contractual norm, in this case we are talking about fictitious powers. Imaginary powers are considered in a «broad» and «narrow» sense. At the same time, it is difficult to distinguish between implied powers in the «broad» sense and immanent powers. In the science of international law, the attitude towards immanent and imaginary powers of international bodies is not the same. The international legal significance of the jurisprudence of international treaty bodies, which do not have the contractual authority to authentically interpret an international treaty, is related to the customary legal fulfillment of the contractual obligations of states.On the basis of the conducted research, conclusions were made regarding the solution to the problems of implementing the powers of treaty bodies and the influence of jurisprudence on their interpretation of international treaties, which should take place in the plane of researching the imaginary or immanent powers of these bodies themselves.

An effective pandemic treaty requires accountability

Introduction The subject of victims in relation to international criminal justice mechanisms is a relatively new area of concern (Musila 2010; Parmentier and Weitekamp 2013; Robins 2011; Rothe 2012; Weinstein 2011). Given the scale and scope of crimes over which institutions such as the International Criminal Court (ICC) have jurisdiction, it seems that the analysis of the role, or lack thereof, of victims in this process merits more attention. This is especially so given that the role of the victim within international criminal justice has been touted as having made major advancements since the early 1990s by providing a greater amount of victim participation. Consider the 2005 survey by Stover (Stover 2005), where most victims and witnesses who testified felt some degree of satisfaction after participating in the International Criminal Tribunal for the former Yugoslavia (ICTY) proceedings, and Horn et al.’s (2009) findings, which also found that the majority of those who participated as witnesses felt it was a positive experience and would do so again. Indeed, the value of a punitive system to respond to victims’ desires for accountability may well have merit, at least in some cases. Parmentier and Weitekamp (2013) conducted a population-based survey on the perceptions of Serbian people regarding accountability for war crimes committed, prosecutions, and other forms of transitional justice in the country. Delineated down to two main issues – the quest for justice and the search for truth through the eyes of the population – Parmentier and Weitekamp conclude that a large majority of the respondents believed it was of utmost importance that the “truth” about what happened during the war be established, and that this is most favored when done through the courts and truth commissions. An official validation of “truth,” so to speak. Additionally, they found that the issue of accountability was most noted in the context of prosecutions at the ICTY and linked to the more senior political and military leaders, with less emphasis and concern on “direct”perpetrators who were seen as carrying out orders (Rothe 2013). One could also consider if an international criminal justice system can provide a form of “symbolic reparations”1 to the massive number of victims inherent in the forms of crimes that international criminal law covers (genocide, crimes against humanity, massive and systematic human rights violations, war crimes). In other words, even if not all inclusive, the international criminal justice process could, theoretically, contribute to restoring a victim’s dignity through the acknowledgment of the harm done, directly or indirectly (symbolically). A similar frame for thinking of the symbolic value would be as a venue for “closure.” On the other hand, scholars have noted that while some studies have found levels of satisfaction with international tribunals, these findings do not reflect the numbers of victims who felt omitted, unsatisfied with their limited abilities to share or explain, lack of ability to travel to the locations outside of their country for the proceedings, and a host of other issues that have been levied against international criminal justice proceedings by victims and scholars of post-conflict justice, transitional justice, and restorative justice (see also Chapter 9 in this volume). Other criticisms include claims that the solution, or redress for victims (in any form) cannot merely come from the top down or be removed from the specific victims to a mass victim representation via punishment of the offender; the local and individual responses and needs must also be met in some form (Rothe and Mullins 2008). It is no secret that the International Criminal Tribunals for Rwanda (ICTR) and Yugoslavia have had major issues and areas of contention when it comes to dealing with victims and victims’ needs. Given that the ICTR and ICTY are ad hoc tribunals nearing completion, the focus of this chapter will be on the issue of victims in relation to the ICC.

Women are underrepresented in virtually every international body responsible for adjudicating, monitoring, and developing international law. As of February 2017, three of the 15 judges on the International Court of Justice are women; the International Tribunal for the Law of the Sea has 21 judges, only one of whom is a woman; and the International Criminal Tribunal for the Former Yugoslavia has no permanent women judges. This working paper analyzes the extent to which international human rights law and standards support the GQUAL Campaign’s call for States to pledge to achieve gender parity on international courts and monitoring bodies. States establish the nominating or voting procedures that apply to any particular international body. There are a number of opportunities for States to shape the pool of applicants, the composition of any short list, and the final composition of the international body. Because States have a fundamental role in establishing the procedures and controlling the final outcome, the GQUAL Campaign calls on States to address underrepresentation by adopting measures to rectify the gender imbalance on international judicial and monitoring bodies. The Campaign is rooted in well-established and widely accepted provisions of international law. Article 8 of the Convention on the Elimination of all Forms of Discrimination against Women (“CEDAW”) establishes the right of women to represent their governments at the international level, on equal terms with men and without discrimination, and to participate in the work of international organizations. To gain a fuller understanding of the international legal basis for gender parity in addition to the CEDAW framework, this working paper identifies and analyzes complementary international human rights law standards pertinent to the GQUAL Declaration found in the UN Charter, selected international human rights treaties, UN resolutions, and policy statements. The absence of women in equal numbers with men as international judges and members of human rights monitoring bodies is a grave issue. Gender disparities in international institutions undermine the international commitment to equality and non-discrimination. Further, the lack of gender parity erodes the legitimacy of international legal institutions and their mandates to uphold these universal values. This working paper contributes to the effort to address this gap by drawing attention to the scope of international human rights law and standards that can be marshaled to ground the GQUAL Declaration in international law and accepted best practices. This working paper was prepared by Mary Dahdouh ’18, Vaitiari Rodriguez Segui ’17, Virginia Smith ’17, and Miguel Zavala Herrera ’18, interns in the International Human Rights Law Clinic (IHRLC), University of California, Berkeley, under the supervision of Laurel E. Fletcher, Clinical Professor of Law and IHRLC Director. Maria Noel Leoni, Senior Lawyer, Center for Justice and International Law (CEJIL) and Viviana Krsticevic, CEJIL Executive Director, provided guidance and editorial feedback. Katrina Natale, IHRLC Clinical Teaching Fellow provided valuable research and project support.

The author states that modern social development is based on humanistic ideas, which underpin the policy for the liberalization of modern criminal and criminal procedure legislations, and analyzes the corresponding amendments to the Criminal Code and the Criminal Procedure Code of the Russian Federation. This analysis proves the relevance of researching the methodological foundations of determining the goal of Russian criminal proceedings. As philosophy teaches us, the goal of any activity is determined by external factors and should thus be derived from them. At the same time, the organization of the work of actors «within» the system presupposes setting corresponding goals. Applying the logic of scientific cognition «from general to specific» to the criminal process, the author proves that it is necessary to initially determine its purpose at the highest possible level of generalization. After that, the purpose should be interpreted in practical terms, i.e. it is necessary to set the goal and objectives of criminal proceedings. It is noted that the purpose of criminal proceedings - protection against criminal infringements - determines the goal of criminal procedure activities - the implementation of this protection. Such are the dialectic features of the goal manifested in the combination of specific and general characteristics. At the same time, a goal needs to be specific enough, and not too general. The author supports the approach of the lawmakers used in Part 2, Art. 2 of the Model Criminal Procedure Code for the CIS countries, which determines the results that the bodies responsible for criminal procedures should strive to achieve. It is stated that in the countries of the Romano-Germanic legal system the goal of criminal court proceedings is considered to be reached if the guilty party is determined and the just criminal law norms are applied to this party in the form of punishment, whereas in the Anglo-Saxon legal family the goal of criminal proceedings consists in settling the conflict between the victim and the perpetrator. Besides, the author proves that the objectives of criminal court proceedings reflect the specific features of criminal procedure instrumentarium, while the results of reaching their goals are of criminal law nature since they are determined by the factors that are external in relation to the criminal proceedings. Based on this, the author presents the formulation of the goal of criminal proceedings as well as the results of reaching it.

In this article, the author contends that transparency and exchange of information on request became an international tax custom. The content of this new international tax custom is the exchange of information on request with regard to all tax matters for the administration and enforcement of domestic tax law without regard to a domestic tax interest requirement or bank secrecy for tax purposes with extensive safeguards to protect confidentiality of the information exchanged (the so called EOI Standard). The emergence of the EOI Standard as an international tax custom is a clear sign of change of the existing global tax governance. There is a realization that international organizations and global forums with expertise in tax matters (especially the OECD, UN, and Global Forum on Transparency and Exchange of Information for Tax Purposes) are actually performing a fundamental role. They influence states’ practices and opinio juris with soft law instruments and peer review procedures that ultimately influence the development of hard law in tax matters, a sphere traditionally conceived as being exclusive to states. The consequences of the emergence of new international tax customs are the submission of states to the international obligation to exchange information on request even in the absence of treaty provisions and the applicability of a state responsibility doctrine in the event of non-compliance. Therefore, if states intend to not lose their almost exclusive role in global tax governance, the role of the existing international organizations and other institutional players must be restrained. The disadvantage, however, is the inability to achieve cooperation in certain strategic matters in tackling double non-taxation arising from aggressive tax planning arrangements. Global tax governance, international tax cooperation, transparency and exchange of information on request, international custom, customary international law, tax sovereignty.

Among the many international bodies and organizations that have made transitional justice a precondition for cooperation is the European Union (EU), The Union‟s strong advocacy for human rights, democracy and transitional justice during reconciliation of the Western Balkans is one of the factors that led to the bestowal of the 2012 Nobel Peace Prize ("The Nobel Peace Prize 2012 to the European Union”). This article will address the role of the EU in creating security within Europe in relation to the transitional justice that is taking place within the Western Balkans. The Union‟s involvement in the reconciliation process of the Western Balkans through the Stabilisation and Association Process (SAP) will be explored and the Union‟s European Neighborhood Policy (ENP) will also be brought into focus regarding the policy‟s means of evasion in creating a secure European neighbourhood. In order to understand the breadth of transitional justice measures taken by the Union within the Western Balkans, the case of Croatia will be taken into account, as the first country from the area to be accessed into the Union in 2012, and to some extent compared to the process that is taking place in Serbia. This article seeks to bear out how although the ENP has to a degree succeeded in establishing constitutional peace within „Wider Europe‟, the cursoriness of its role in executing transitional justice in the Western Balkans has led to the obstruction of sustainable peace within the region.

The third wave of democratization has meant the end of autocratic rule and oppressive state-sponsored practices in many countries around the world. Yet the transition from authoritarianism and state-sponsored terror to more open and participatory societies has its own imperatives. After autocratic rule and protracted conflicts, it is necessary to heal the wounds caused by years, sometimes decades, of mistrust, fear, and violence. Systematic violations of human rights, in the form of oppression, physical and psychological violence, and death, leave lasting individual and collective wounds. Transitional (or restorative) justice is designed to address and (hopefully) mitigate such legacies left by the previous regime. In doing so, it draws on a variety of instruments: criminal prosecutions, special tribunals, amnesties, apologies, memorials, lustrations, and truth commissions (TCs), among others. The end of the Cold War also gave a new impetus to international criminal justice. Special tribunals for the former Yugoslavia, for Rwanda, and for Sierra Leone were established, as was, most prominently, the International Criminal Court, originated in the 1999 Rome Treaty and based in The Hague. For many, this portends a major shift in international relations, one in which the traditional, Westphalian, and sovereignty-centered international system gives way to another, based on more porous units, in which individual and human rights have more sway and human rights abuses trigger a more proactive international reaction. In turn, these developments have given rise to a whole new field of study: transitional justice. This is an interdisciplinary field in which political science, law, sociology, history, anthropology, psychology, theology, and other disciplines converge. Not surprisingly, since transitional justice emerges as a result of the developments described above, it is, much like democratization and political transitions, also marked by contingency and paradox. Transitions are fluid and political action and the uses of the law find themselves under a different set of rules than under ordinary circumstances. Grasping the transformative opportunities presented by the conjuncture becomes a key test of political leadership. (1) Truth commissions have emerged as a popular tool of transitional justice, especially in cases where a delicate balance between the extant remnants of the previous regime coexist with the new dispensation. (2) TCs have come to the fore because of their flexibility, their open-endedness, and their ability to act as a bridge of sorts between an evil past and a democratic present, thus laying the foundations for a future society at peace with itself. At first, transitional justice was mainly concerned with transitions from authoritarian to democratic rule. However, after the large number of internal conflicts that arose in the post-Cold War era, it has also been applied within the wider panoply of nation- and peacebuilding instruments following the end of a war or conflict. This has been especially true for Africa. Some transitional justice tools, like TCs, have shown to be so prevalent and useful for a variety of reasons that they are now deployed in advanced Western democracies, like Canada, to investigate historical human rights abuses as well as to investigate the conditions that led to the breakdown of democracy, as happened with the TC set up in Honduras after the June 2009-January 2010 crisis. Especially in Latin America and Africa, TCs as well as truth and reconciliation commissions have been deployed to come to terms with past injustices while rebuilding trust in government and among social groups, although they have also been deployed in Asia, Europe, and North America. (3) While they share a number of common features, TCs must reflect local specificities to address the crimes of the past amidst the fluid, uncertain, and challenging conditions that are the hallmark of democratic transitions. …

It is indicated that ensuring human rights and freedoms in conditions of armed conflicts is one of the most pressing issues of modern international law and national legal systems of many states. The article examines the system of participants in international criminal proceedings and their functional role in ensuring international justice in the context of modern challenges, in particular the Russian- Ukrainian war. The author analyzes the evolution of the subject composition of international criminal courts from the Nuremberg Tribunal to the modern International Criminal Court, emphasizing the relevance of the study in the context of full-scale armed aggression of the Russian Federation against Ukraine. The study reveals the specifics of international criminal proceedings as the activities of specialized subjects who participate in the process, regulated by the norms of international law, in accordance with the requirements of international criminal law. The author analyzes the founding documents of international criminal jurisdiction bodies, in particular the Rome Statute of the ICC, revealing the lack of unified terminology regarding the subjects of criminal proceedings. Special attention is paid to the classification of participants in international criminal proceedings according to their procedural status and functional purpose. The five-member classification of T. Syroid is considered, which includes bodies and officials with authority, parties to the proceedings, persons who facilitate the administration of justice, states as subjects of the proceedings, and subjects of legal aid. The author emphasizes the complex nature of this system, which combines traditional participants in the criminal proceedings and specific international legal subjects. The study reveals that the subjects of international criminal proceedings are characterized by various grounds for involvement in procedural relations - from the performance of official duties to the exercise of their own rights and interests. The author justifies the need to rethink the role of various categories of participants in the judicial process in the context of ensuring effective cooperation between states and international judicial bodies, especially during the investigation of mass crimes in modern armed conflicts.

This article examines the issue of the procedure and forms of use of specialized knowledge in criminal proceedings. It is noted that the main tools of cognitive activities for the investigation of criminal offenses are investigative (search) actions aimed at finding traces of a criminal offense, their research and the formation of court evidence. An analysis of the opinions of scientists regarding the evolution of forms of using special knowledge in criminal justice at different historical stages was carried out. Attention is drawn to the gradual expansion of the forms of use of specialized knowledge which is being enshrined in the current criminal procedure legislation. The author analyzes the scientific studies which reveal the essence of special knowledge, its importance for establishing the circumstances of a criminal offense, the subjects who can use special knowledge, and the procedural documents which record the process of application of special knowledge and its evidentiary value. The author compares the requirements which must be met by a person involved in criminal proceedings as a specialist and an expert. The author shows significant differences in the requirements for these participants to criminal proceedings. On this basis, it is proved that a specialist’s opinion may be consistent with an expert’s opinion, provided that all other requirements are the same. Since the qualification requirements for a person who has special knowledge in a certain field and is involved in criminal proceedings as a specialist and an expert are different, and the regulatory procedure for their involvement in criminal proceedings is different, it is considered impossible to put an equal sign between the specialist’s opinion and the expert’s opinion as a proven source of evidence. The author substantiates the proposal to change Part 3 of Article 214 of the CPC of Ukraine and to restate it in the following wording: “In order to clarify the circumstances of a criminal offense, prior to entering information into the Unified Register of Pre-trial Investigations, it may be 3) an expert opinion may be obtained...” and so on. This will contribute to the formation of reliable and high-quality evidence in criminal misdemeanor proceedings

The concept of transitional justice has been on an upward trajectory for three decades, attesting to its broad empirical applicability, its analytical potential, and the normative attraction it holds. At the same time, conceptual confusion is widespread as “transitional justice” functions as shorthand for both a specific type of event and the research on these events. The present chapter untangles these overlapping understandings by exploring the multiple genealogies of “transitional justice” as historical event, normative project, and heuristic lens. In the first section of this chapter, a conceptual history addresses the prehistory, emergence, and evolution of “transitional justice” as an analytical category. The second section offers an inevitably incomplete survey of transitional justice as a sequence of historically discrete events. The final section tries to integrate outlying cases which run afoul of common expectations as to what constitutes transitional justice, and reconceptualizes the term as a heuristic instrument rather than an empirical phenomenon or an academic field. Avoiding linear, teleological, and normative assumptions, this chapter proposes to understand transitional justice as a question rather than an answer.

Improving personal effectiveness has been a popular subject for many decades in the business world. However, in transitional justice and rule of law, effectiveness has only relatively recently been a topic of interest, as researchers investigate reasons why international legal interventions succeed and why they fail. This paper examines the issue of effectiveness of rule of law and transitional justice interventions from the perspective of the actors themselves – the international lawyers – especially as they work with their national counterparts to achieve their objectives. The report analyses the barriers to intercultural effectiveness at the individual level for international lawyers. The main part of this paper then focuses on the specific knowledge, skills and values through which an international lawyer may be able to optimise their own intercultural effectiveness. In particular, we highlight the desirability of a full factual briefing before starting work in a different country, the need for effective intercultural communication and organisational skills and the importance of adopting a flexible attitude and an understanding of one’s personal and professional limitations. We will also discuss how institutions hiring international lawyers can take also concrete practical steps to improve the success of interventions, by helping their staff and consultants to become more interculturally effective.The methodology for this paper is qualitative and more than fifty lawyers with experience working in international interventions were surveyed for their personal reflections on effectiveness in their workplace. The author of the paper has also drawn on his own experiences and discussions with both international and national colleagues, having spent more than ten years working in the field of international criminal law, transitional justice and rule of law development.This report was commissioned as part of the Lawyers, Conflict & Transition project – a three-year initiative funded by the Economic & Social Research Council that is run in partnership between the School of Law, Queen’s University Belfast and the Transitional Justice Institute.

International law is a set of norms that covers the general procedures and institutions for the conduct of international relations. Its general function is to safeguard international peace, security, and justice in relations between states. As its name suggests, it is concerned with relationships between states, and that makes states the main actors or subjects of international law. As international law continues to evolve, however, the subjects of international law have broadened and changed. This has inevitably led to an evolution in the law-making process. Classically international rules could only be made by states, mainly by treaty or through international custom. More recently, the sources of law have expanded, as have the makers of international law. The classical sources of international law, stated in Article 38(1) of the Statute establishing the International Court of Justice (international conventions, international custom, general principles of law, and judicial decisions and teachings of highly qualified publicists), remain relevant, and new sources, principally ‘soft law,’ are gaining ground. In addition, non-state actors (NSAs) are becoming increasingly relevant, not just as subjects of international law but as participants in the law-making process. NSAs include international organizations, international and domestic judicial and quasi-judicial bodies, hybrid bodies, Civil Society, the private sector, and others. While previously and indeed currently in many spheres of international law international rules were only enforceable by and against states, it is increasingly common for NSAs to enjoy rights of audience before courts and tribunals, and also to participate in the law-making progress in various capacities. This has been through the creation of new customary international law, laying down new rules through the determination of disputes, the operation of soft law, and even the conclusion of treaties that bind states. The readings below start from a more general coverage of law-making to specific works about law-making by NSAs. They have been selected, as far as possible, to blend classical writings with current and recent research on the subject of law-making. Wherever possible, they include writings by practitioners in their relevant areas, such as judges and academics or legal counsel in and before judicial bodies. A note on terminology: many publications use the term “lawmaking” rather than “law-making”. Where in the original title of the publication the word “lawmaking” is used or else the words “law” and “making” appear disjunctively, it has been retained; otherwise, the word “law-making” is used.

This Article focuses on the right to truth and its interaction with the duty to bring perpetrators to justice following a period of gross violations of international human rights law and serious violations of international humanitarian law. It explores how truth-finding and criminal justice programs interact, and how States can most comprehensively satisfy their obligations with regard to the right to truth and the duty to bring perpetrators to justice, given the raft of practical limitations that a State may face in periods of political transition. The Article argues that even when a State is able to carry out prosecutions, it is likely obliged to look for additional strategies, including truth commissions, to more comprehensively fulfill its international human rights obligations. Additionally, where an exhaustive suite of prosecutions is not feasible in the short term, truth commissions and other transitional justice mechanisms can be employed to commence the fulfillment of the right to truth, though these should be implemented with a view to proceeding to thorough criminal justice processes as soon as the State’s political context permits.