Practice Of International Criminal Tribunals Research Articles

Justice in the Practice of International Criminal Tribunals, in the Context of the Tasks of Contemporary International Humanitarian Law

Transitional justice, which today has become a widespread and very useful concept, which allows the transition from an authoritarian system to the rule of law, which aims to establish a democratic regime that respects human rights - and what is important not at the level of declarations and applicable methods, but, first of all, this must become the philosophical basis of his daily life. The purpose of transitional justice is to restore the dignity of the victims, to establish mutual trust between the antagonistic groups, to favor the institutional exchange necessary for a new relationship within the population that will allow the establishment of a state of law, including through an effective control of the practice of total or partial impunity. The various constitutive elements of transitional justice generally combine reparative measures of restorative justice (Truth and Reconciliation Commissions), meanwhile establishing parallel mechanisms of punitive justice (especially in relation to the main responsible or direct executors of the most serious crimes).2 On the other hand, transitional justice claims to reform the institutional system, restoring the primacy of law and ensuring the functioning of judicial institutions for the future, fighting in the meantime against impunity for the crimes committed during the previous period. In this sense, transitional justice pursues a multiple goal within the framework of an end to a conflict, in which other imperatives are imposed on government officials - the disarmament of combatant forces, the restoration of citizens' security, the compensation of victims and the restoration of the economy of devastated societies. After being neglected for a long time, the victim is at the center of current political concerns and is the object of a constantly growing interest, mainly in the criminal field and not in social discourses.3 But this phenomenon, positive from some aspects, is not without problems and arouses controversial debates among researchers and actors of the criminal world. This imposition of the victim seems to exist not only in the criminal system, but also in the current socio-political terrain. This predominance is observed in many Western states, lately becoming dominant to some extent both in international criminal law and in international humanitarian law, being taken into consideration the burden of victims in the status granted to them in armed conflicts. The participation of victims in the criminal procedure is generally a recent phenomenon, which seems to be far from being accepted. Victims played and play a secondary role in the tribunals previously established by the International Criminal Court (ICC).4 They were considered only as a means in the de facto absence of a participation or compensation system. Under the influence of strong pressures, the tendency to take into account the opinions and concerns of the victims, including admission in the criminal procedure, became visible in national and international law, and with the involvement of non-governmental organizations and states, the basis of a system was laid that provides for a relatively broad participation of victims in ICC trials. Even if its modalities are still the subject of harsh discussions, it is generally recognized that it is an important and useful tool that would allow victims of serious violations of human rights and international humanitarian law to be heard and to hope for possible reconciliation.5 The evolution of the process of increasing interest in victims is the result of political, social and legal tensions that started in the 1960s, with the implementation of state policies regarding victim compensation and the development of victim defense associations, being influenced by the social movement that opted for civil and women's rights. We find that taking the victim into consideration in social and penal policies has progressed in a meteorological manner. National and international investigations allowed taking into account the victims' dissatisfaction with the criminal system, which led to a genuine experience of secondary victimization, which has as a general consequence the tendency of a weak denunciation of the criminal acts to which they were subjected. They also emphasized the diversity and extent of trauma suffered by some victims, especially after going through interpersonal violence, such as rape or family violence. In addition, towards 1950, a new discipline had developed, a component of criminology, but which very quickly became autonomous - victimology. This field of research focuses on the study of the victim, on his psychological and physical reactions to the sustained achievement, but also on his experience of relying on the act of justice and society in general. These various findings gave rise to state structures to help victims, which have spread throughout the world. The victim thus became a political stake.

Subjective Side (Mens Rea) of Aiding and Abetting War Crimes and Crimes Against Humanity in the Context of the Alien Tort Statute

The American Alien Tort Statute (ATS) is a landmark instrument on a global scale, since, based on its provisions, plaintiffs in American courts have sought compensation for human rights violations committed on other continents. Many of these cases involved war crimes and crimes against humanity. And since such large-scale crimes are almost never committed by a single perpetrator, one of the key issues before the courts in these cases was the question of establishing standards of liability for aiding and abetting such crimes. In considering these cases, the American courts based their decisions on the provisions of international law and thus developed a substantial body of case law, the study of which will undoubtedly be valuable in light of the legal challenges posed by the war in Ukraine. The objective of the article is to examine the requirements for the mens rea of aiding and abetting war crimes and crimes against humanity through the prism of the case law applying the Alien Tort Statute. From a methodological point of view, the study focuses on the analysis of the case law of American courts through the prism of international law. An important component of the research is to determine the contents of customary international law, the provisions of which are subject to separate proof in the relevant cases. The article itself is a part of comparative legal research with the aim of drawing lessons that could be used to solve the complex legal problems arising from the war in Ukraine. The article examines two standards of aiding and abetting used by American courts in cases under the Alien Tort Statute, namely, the purpose standard and the knowledge standard. The author examines the American precedents in which the courts have used one or the other standard. It is argued that the origins of the disagreement should be sought in international law, since American courts in the relevant category of cases rely on international law. The author analyses the arguments of Judge Katzmann, whose position forms the basis for all subsequent decisions applying the purpose standard. The critical analysis of Judge Katzmann's arguments is complemented by a thorough examination of the practice of international criminal tribunals - from the Nuremberg Tribunal to the later tribunals for Yugoslavia, Rwanda and Sierra Leone. The author concludes that the standard of knowledge is predominant and should be considered a rule of customary international law and should define the criteria of liability for harm caused by gross violations of internationally recognised human rights.

Ordering as an Alternative to Indirect Co-Perpetration

Abstract This article explores the issue of leadership criminality with a view to construing it as ordering liability under Article 25(3)(b) of the ICC Statute. It outlines the requirements of ordering liability as they can be deduced from the practice of international criminal tribunals and the International Criminal Court. In a case study, it applies these criteria to the conduct of Bosco Ntaganda to ascertain whether he could have been convicted for ordering crimes. Based on the case study, the article discusses whether ordering, as a form of criminal responsibility, should be preferred to the theory of indirect (co-)perpetration.

International Criminal Tribunals and Reconciliation

Literature on transitional justice routinely assumes positive effects of international criminal proceedings on reconciliation processes. Expressions of remorse and apology before international criminal tribunals are attributed a key role in the scenario. This view is influenced by the role of remorse and apology in human dispute resolution in general and, particularly, in domestic criminal proceedings. That Western societies have become friendlier towards remorse and apology in the last decades — in the age of the ‘new culture of apology’ — might also play a certain role. This article argues, however, that there is a substantive gap between the assumed and the actual role of apology and remorse in international criminal proceedings. Analysis of the practice of international criminal tribunals reveals that cases of sincere remorse or apologies among high ranks — that would be of particular value for reconciliation processes — are hardly existent, and fakery of remorse is fostered by judicial practice. Additionally, positive effects of remorse and apology in the context of macro crimes tend to be overestimated. The article attributes the gap between the assumed and the actual role partly to the wish to avoid facing the void.

Zbrodnie przeciwko dziedzictwu kulturowemu przed Międzynarodowym Trybunałem Karnym – analiza krytyczna

On 24 March 2016 the International Criminal Court (ICC) issued a decision confirming the charges of committing war crimes by Al Ahmad Al Mahdi (Abu Tourab). He is suspected of war crimes allegedly committed in 2012, in Timbuktu (Mali), through intentionally directing attacks against buildings dedicated to religion and/or historical monuments (Article8(2)(e)(iv) of the Rome Statute). In fact, this is the first case to be brought before the ICC concerning the destruction of cultural property. By referring to the circumstances of the case, this article analyses the complimentary function of international criminal tribunals in the prosecuting and convicting of individuals liable for grave cultural heritage crimes vis-à-vis the shortcomings of national criminal jurisdiction. First, it reconstructs the normative foundations of prohibiting and prosecuting cultural heritage crimes. Second, it endeavours to critically assess the practice of international criminal tribunals ad hoc in dealing with the destruction of cultural property. In particular, by referring to certain cases adjudged by the ICTY, it aims to demonstrate to what extent the international protective status of a cultural heritage site may constitute a critical factor in imposing criminal responsibility on individual perpetrators (the cases of Blaškić, Čerkez and Strugar). It also analyses whether intentional attacks against cultural heritage sites, whose protection lies in the general interest of all humanity, may have an impact on the gravity of the crime and the penalty imposed for its commission. Third, the paper deals with the limited provisions of the Rome Statute and offers some general conclusions in respect to the evolving system of individual criminal responsibility for cultural heritage crimes.

Genocide as a Fact of Common Knowledge

AbstractJudicial notice has become a widely used tool in the practice of international criminal tribunals but its use has always been constrained by the fair trial rights of the accused. This article considers the possible impact on those rights of the decision of the International Criminal Tribunal for Rwanda (ICTR) Appeals Chamber to take judicial notice of the genocide in Rwanda as a notorious fact against the backdrop of the legal requirements for judicial notice as a fact of common knowledge and as an adjudicated fact. The question whether it would have been more appropriate to notice the Rwandan genocide as an adjudicated fact is addressed in the context of the implications for other instances of genocide, for example Srebrenica.