Procedural Convergence in International Courts and Tribunals

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. …

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.

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.

The United States' participation in international courts, and in particular, the potential accession to the International Criminal Court (ICC), which would have jurisdiction over U.S. nationals and U.S. territory, raises serious constitutional questions. These questions were thoroughly analyzed in the course of the debate about the constitutionality of international courts proposed by Britain in the early 19th century. This episode has never been examined by legal scholars or historians, despite its great relevance to a current legal and policy debates. This Article presents that historical debate over the slave trade courts, and draws lessons for the present legal questions. The permissibility of joining international tribunals spans several major constitutional issues: delegating federal powers to supernational institutions; the limits if any on what can be done through the Treaty Power; and vesting judicial power in non-Article III While these are all famously confused and contentious areas of law, a preponderance of scholarly opinion concludes that the Constitution does not bar joining international courts, the ICC included. However, the jurisprudence and literature on these questions has entirely neglected an important evidence. In the wake of the Napoleonic Wars, a network of international tribunals to punish slave trading as created. Many European nations joined these courts. The United States, however, saw the courts as unconstitutional. It refused to join the mixed court system for forty-five years, spanning eleven presidencies. The constitutional objections were formulated by some of the leading statesmen of the early Republic, and even some members of the Founding Generation. They raised several constitutional objections of both structural and individual rights varieties: that the court would not be reviewable by the Supreme Court; and, even more importantly, that it would subject U.S. nationals to criminal trials without jury trial and other Bill of Rights protections. These objections were held unanimously in the distinguished Cabinet of James Monroe; shared by Congress; and undisputed by anyone for decades. This suggests that giving an international criminal court jurisdiction over certain offenses within the ICC's charter would be unconstitutional. This does not mean that U.S. participation in international criminal courts would always be unconstitutional. Those interested in seeing the United States participate in such courts will find in the slave trade court episode not a constitutional straitjacket but rather a guide to tailoring their jurisdiction to avoid constitutional constraints. This Article unpacks the constitutional objections stated at the time and shows that some but not all international criminal courts are likely to be unconstitutional, while non-criminal international tribunals are far less problematic. Aside from the precedential significance, the nineteenth century discussion of why joining such a court would be impermissible speaks directly to today's constitutional jurisprudence in modern terms. It provides surprisingly relevant guidance on questions like the permissibility of non-Article III courts; constitutional restraints on the Treaty Power; and the binding effect of judgments of international Additionally, nearly every argument made today about American exceptionalism in international law and the conflict between domestic and international law was rehearsed nearly 200 years ago.

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.

This chapter discusses how the European Court of Justice (ECJ) can reconcile its special sui generis status in the universe of international (and national) courts and tribunals with the requirement of being holistic by showing systemic responsibility to the system of international law as a whole. A true dialogue and more trust in these international courts and tribunals by the ECJ would make it easier for the ECJ to stop emphasizing the sui generis nature of the European legal order and enable it to bring the European legal order down to the same level of the other branches of international law. In fact, this boils down to concepts of judicial comity and the Solange-method, which encompasses several aspects. ECJ must deliver constitutional justice by becoming an integral and equal part of the universe of international courts and tribunals, rather than continuing to claim a sui generis position. Keywords: European Court of Justice (ECJ); International courts; Judicial comity; sui generis ; systemic responsibility; tribunals

International courts exercise public authority. Their decisions affect individual and collective self-determination. Nowadays, international courts decide on criminal, constitutional and administrative matters, much in the same way as domestic courts. Possible tensions between international and domestic courts raise the question of how to frame international judicial authority vis-à-vis domestic courts in a way that contributes to the legitimacy of their decisions. To respond to these concerns, the article analyses the potential of a generalised principle of complementarity. The principle's underlying idea can be rooted back to several procedural and substantive manifestations of it in human rights courts and in international investment tribunals. It regulates the relationship between international and domestic courts in order to ensure individual legal protection and the balance of individual and collective interests. In accordance with the rationale of the Rome Statute, domestic courts are primary responsible in this regard; and only when they are unable or unwilling may international courts compensate domestic institutional deficiencies, safeguard subjective rights, ensure compliance with international law standards and strengthen domestic capacities. The function of the principle is twofold: (i) to structure the relationship between international and domestic courts—a relationship that is characterised by a division of labour, cooperation and mutual responsibility; and (ii) to normatively guide and evaluate the jurisprudence of international courts. In fulfilling these functions, the legitimating potential of complementarity can best be unfolded.

This chapter offers a comparative consideration of the efficacy of civil versus common law in adjudicating atrocity crimes, using the example of the French war crimes unit prosecution practice. On 16 October 2017, representatives of international criminal courts and tribunals met in France at the French National School for the Judiciary. Their meeting resulted in the signing of a Declaration on the effectiveness of international criminal justice (Paris Declaration). In gathering professionals from international courts and tribunals where the need to comply with founding texts and specific procedures can challenge those who, by habit, comfort, or conviction, draw on their national practise to interpret and apply the rules of procedure, the question of common versus civil law practice was the implicit focus. The Paris Declaration was adopted at a time when disappointment towards the ‘efficiency’ of international(ized) tribunals and courts is high. They are considered too slow and too costly. In this context, it is not unusual to hear that international trials would be better managed and more efficient if they borrowed more elements of ‘civil law’ on their ‘common law’ foundation. The chapter then describes the main characteristics of each procedural system to help identify which procedural model has been favoured before international(ized) tribunals. It also asks whether national investigation and prosecution of core international crimes are more efficient.

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.

What difference does international criminal law make to global security, and what contributions has the United Nations made to international criminal law? The establishment through the UN of international criminal tribunals for the former Yugoslavia (ICTY) and Rwanda (ICTR), its role in initiating tribunals in East Timor, Sierra Leone, and Cambodia, and the rapid coming into force of the International Criminal Court represent revolutionary developments in how the world attempts to deal with war and crimes against humanity. While the Nuremberg and Tokyo military tribunals after World War II provided a major shift in the paradigm of legal responsibility for conduct in war from states to individuals, the more recent tribunals symbolize a decisive move away from the perception of “victors’ justice” towards a more universal mechanism for ensuring accountability for atrocities committed during wartime and even peacetime. In doing so, these courts have overcome a number of obstacles that skeptics over the years have argued would prevent the effective operation or even existence of such international courts. Observers of international law and war had long maintained that the diverse legal systems and cultures around the world present an insuperable obstacle to the creation of a permanent international criminal court.

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.

International courts and tribunals have by now become well-established institutions. Many books and articles have been published on the law and practice of, for example, the International Criminal Court, various international criminal tribunals - notably those for the former Yugoslavia and for Rwanda - the International Tribunal for the Law of the Sea (ITLOS), the Appellate Body of the World Trade Organization, international administrative tribunals (dealing with complaints of staff of international organizations), regional courts in Europe, Africa and America (such as the European Court of Justice (ECJ) and the European Court of Human Rights (ECtHR)). At the same time, significantly less research has been done into the law and practice of those international organs (‘governance institutions’) that carry out the necessary governance functions over all these international courts and tribunals. Examples of such organs are the Assembly of States Parties (the governance institution for the ICC), the Meeting of States Parties to the UN Convention on the Law of the Sea (‘SPLOS’, for ITLOS), the Dispute Settlement Body of the WTO (for the WTO Appellate Body), the Committee of Ministers and the Parliamentary Assembly of the Council of Europe (for the ECtHR). These governance institutions elect the judges of international courts and tribunals, adopt their budgets, supervise the implementation of judgments and take other decisions that are of fundamental importance for the way in which international courts and tribunals can carry out their judicial tasks independently. This paper is an appeal for more research into the law and practice of what I will call international judicial governance institutions (injugovins).

Children enjoy special protection from the harms of armed conflict under international humanitarian law. While the protection of children in armed conflict has been widely researched with regard to recruitment and use of children in armed conflict, the research on protection of children from sexual violence has received less attention. In this paper I look at the protection of children in relation to sexual violence under international humanitarian law and its actualisation in the practise of international criminal courts and tribunals. I consider first how the protection of children from sexual violence under international humanitarian law made its way to Conventions. Second, I explore the case law of sexual violence as a war crime in international courts and tribunals and how the special protection of children is reflected in the case law. I argue that despite a gradual improvement, the provisions of the Conventions have not been recognised particularly well. While there have been cases in which more attention has been paid to sexual violence against children, the practice is mostly incoherent and sporadic: there exists a discrepancy between the Conventions, and the practice of international criminal courts and tribunals.

Inherent jurisdiction and or inherent powers, although their true source remains unclear, have frequently been invoked in decisions by International, internationalized and mixed Tribunals and Courts in order to vindicate certain authority and prerogatives and also to overcome gaps and even limits set by statutes and rules of procedure and evidence. The strings of court decisions usually quoted by international criminal courts and tribunals shows to be, to some extent, out of focus if not distorted. The invocation of inherent powers may also impact on core principles. Claim by International Courts and Tribunals of inherent jurisdiction and power determine the temptation to recall the concept of a "Grotian moment," a shift in paradigms and the emergence of new values with unusual rapidity and equally unusual acceptance. For some stances the “Grotian moment” seems to be over, as in the case of the vindication of the power to review United Nations Security Council Resolutions underlying the original assertion of Kompetenz Kompetenz by the ICTY, which has been recently resized.

This study examines the role of international courts and tribunals (ICTs) as important agents for the peaceful settlement of international disputes through the instrumentality of law. The rapid upswing in the number of specialised international courts and tribunals (in areas such as trade, human rights, law of the sea, criminal justice and environment) can be perceived as an attempt by sovereign States to maintain the viability of ICTs in light of perplexity in international relations, growing recognition of peaceful co-existence, quest for institutionalised cooperation and emergence of some of the “common concerns of humankind”, as well as the “duty to cooperate”. The article has sought to make sense of the emergence of ICTs as the “New Environmental Sentinels” and what it portends for our common future. Do we need a specialised international environmental court?