The Inflated Invocation of Inherent Jurisdiction and Powers by International and Internationalized Criminal Courts and Tribunals: Between Gap Filling and the Erosion of Core Values

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 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.

Inherent powers of international courts and tribunals are a necessary consequence of exercising properly judicial functions in the context of a legal system lacking a central legislative power setting the limits of these functions through firm legal rules. Power to grant binding provisional measures is the most extreme example of international judiciary reaching for inherent powers, since this process disregards ordinary textual interpretations of judicial statutes. At the same time, this process is an example of cross-fertilization between various judicial regimes in international law, where tribunals for the law of the sea influence general international courts, while they in turn influence investment and human rights tribunals. Limits to these inherent powers must provide that state consent, as the central tenet of international legal order remains unaffected. The fact that this practice has not met with resistance from states indicates that international courts and tribunals have assumed this inherent power with propriety and logic.

The amicus curiae brief has increasingly been used before international criminal tribunals. The practice of accepting or inviting amicus curiae briefs or submissions has been included in the rules of procedure and evidence of the ICTY, the ICTR, the Special Court for Sierra Leone and the International Criminal Court. This article examines the role of amicus curiae before international criminal courts, including: how and when amicus are granted permission to appear; how amicus curiae are used by these international courts; the influence, if any, of amicus briefs on decisions and judgments; and whether the role of amicus curiae in international criminal courts has diverged from the traditional concept of an amicus curiae. Also considered are the arguments in support of the continued role of amicus curiae before international criminal tribunals.

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.

Legality in the Modern International and Internationalized Criminal Courts and Tribunals

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.

The concepts of inherent powers and inherent jurisdiction are curious under international criminal law. Their source is unclear and their content indeterminate. With potentially coercive consequences on individuals, the exercise of such powers in the criminal context deserves close scrutiny. This article argues that the concepts serve a legitimate function within international criminal courts and tribunals. They are indispensable for filling lacunae in jurisdiction and controlling the abuse of process. Invocations of a court's inherent powers are guided by the necessity of guarding the judicial function and notions of justice. Problematically, this vests substantial discretion in the judiciary and opens their use to judicial activism. This article delineates a clear set of limitations and argues that judicial restraint is crucial to ensuring that there is no abuse of discretion flowing from the exercise of this power.

This article examines the seemingly dynamic relationship between the United States and inter- national criminal courts. Its scope is limited to a description of the attitude of the US government toward international criminal courts and tribunals, both at present and historically, and how that attitude has evolved. The article surveys US attitudes toward all of the major international criminal courts created or proposed over the past century. The US attitude is infl uenced by a range of factors, including such variables as ideological leanings of those in power and the strength of certain personalities (proponents or opponents). The impact of such variables tends to be moder- ated over time. The survey also reveals certain consistent themes underlying US attitudes toward international criminal courts. One consistent element would appear to be the (un)likelihood of prosecution of US nationals. The US has tended to support international criminal courts where the US government has (or is perceived by US offi cials to have) a signifi cant degree of control over the court, or where the possibility of prosecution of US nationals is either expressly precluded or otherwise remote. If the US is assured that US nationals will not be prosecuted (or, at least, not without its consent), it will engage in a balancing of interests to determine its level of support or opposition. Ideological leanings will of course colour this balancing of interests and at times defi ne some of those interests. To the extent that an administration's ideological strain in favour of accountability is stronger than its ideological strain opposed to the creation of international authority, the prospect of US support of a given international criminal court increases. * John P. Cerone is Associate Professor of Law and Director of the Center for International Law & Policy at the New England School of Law. He has served as a confi dential legal advisor to several international criminal courts and was involved in the establishment of the Special Court for Sierra Leone and the Extraordinary Chambers in the Courts of Cambodia. Most recently, he was a Visiting Professional in Chambers at the International Criminal Court. The views expressed by the author are not attributable to

The 2021 edition both updates readers on the important work of long-standing international tribunals and introduces readers to more novel topics in international law. The Yearbook continues to provide expert coverage of the Court of Justice of the European Union and diverse tribunals from the International Court of Justice (ICJ) to criminal tribunals such as the International Criminal Court (ICC) and the International Residual Mechanism for Criminal Tribunals (MICT), to economically based tribunals such as ICSID and the WTO Dispute Resolution panel. This edition contains original research articles on the development and analysis of the concept of global law and the views of the global law theorists such as: a comprehensive analysis of the legal frameworks on Norway, Sweden and Finland in respect of the rights of the Sami people; the philosophical grounds of the human right to environment; the EU's challenge in addressing Member State which reject foundational EU values of the Lisbon Treaty; and how international human rights are present in the law and the practices of international and hybrid criminal courts and tribunals. The Yearbook provides students, scholars, and practitioners alike a valuable combination of expert discussion and direct quotes from the court opinions to which that discussion relates, as well as an annual overview of the process of cross-fertilization between international courts and tribunals.

This chapter analyses the use of customary international law by international criminal tribunals through a different lens. It examines whether the method that international criminal courts and tribunals use to determine the existence of a rule of customary international law constitutes an instance of fragmentation in itself. More specifically, the chapter investigates whether and to what extent international criminal courts and tribunals depart from the conventional methodology of identifying custom in the realm of public international law. The fact that an international criminal tribunal uses customary international law is not remarkable from the international perspective, as customary international law is an accepted source of public international law. The chapter focuses on the treatment of customary international law by the adhoc Tribunals. The tribunals' methodology will be compared and contrasted to the conventional approach of the International Court of Justice (ICJ). Keywords:customaryinternational law; international court of justice (ICJ); international criminal courts; international criminal tribunals; public international law

After prefatory terminological and conceptual clarifications, the chapter examines the basis for, and the international legal significance of, the formal juridical distinction between international and municipal (or ‘national’ or ‘domestic’) criminal courts, as well as the differences among international criminal courts when it comes to the legal underpinnings of their establishment and empowerment. It highlights how, for the purposes of international law, relatively little turns on the technical distinction between an international and a municipal criminal court and how of far greater international legal significance are the differing legal bases on which international criminal courts can be established and empowered. The chapter also suggests that what is more important in practical terms than the distinction between an international and a municipal criminal court are the differences as to jurisdiction ratione materiae, applicable law, rules of procedure and evidence, composition of the bench and its method of appointment, and so on, among international criminal courts and municipal criminal courts respectively.

The Constitutionality of International Courts: The Forgotten Precedent of Slave Trade Tribunals

This chapter discusses principles of substantive and procedural criminal law from common law and international treaty-law. The trial practice of the International Criminal Tribunal for the former Yugoslavia (ICTY) illustrates a gradual shift to a judiciary having a more prominent role in accelerating trials. The main character of pre-trial proceedings is the absence of the determination of guilt or innocence of the accused, as this is finally assessed at the subsequent trial stage. An essential pre-trial right is that of the right to apply for provisional or interim release. Accordingly, the International Criminal Tribunals (ICTS) have incorporated this right in their Rules of Procedure and Evidence. In holding individuals criminally responsible for the most heinous offences, trials before international criminal courts must ensure the protection of the rights of the accused, as only the highest moral standards can legitimate the outcome of these trials.Keywords: ICTY; international criminal courts; International Criminal Tribunals (ICTS); pre-trial right; procedural criminal law; Rules of Procedure and Evidence

International Criminal Courts and Tribunals