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131. The International Residual Mechanism and the Legacy of the International Criminal Tribunals for the former Yugoslavia and Rwanda

Author:
Gabrielle Bardall
Publication Date:
12-2011
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
By Security Council Resolution 1966 (2010), the Security Council established the International Residual Mechanism for Criminal Tribunals as the legal successor to the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda. In the creation of the Residual Mechanism, the Security Council appears to have intended to ensure the continuation of the work of the Tribunals and thereby safeguard their legacies. Accordingly, the Statute of the Residual Mechanism continues the jurisdiction of the Tribunals, mirrors in many respects the structures of the Tribunals, and ensures that the Residual Mechanism's Rules of Procedure and Evidence are based on those of the Tribunals. However, the Statute of the Residual Mechanism is silent with regard to the weight the Judges of the Residual Mechanism must accord to ICTY and ICTR judicial decisions. While there is no doctrine of precedent in international law or hierarchy between international courts, this omission by the Security Council does have the potential to negatively impact the legacies of the Tribunal by allowing for departures by the Residual Mechanism from the jurisprudence of the Tribunals, which lead to similarly situated persons being dissimilarly treated. Nevertheless, even if the Residual Mechanism does adopt the jurisprudence of the Tribunals as its own, as a separate legal body it will still have to answer constitutional questions regarding the legitimacy of its establishment by the Security Council. While it can be anticipated that the Residual Mechanism will find itself validly constituted, the wisdom of the Security Council's decision to artificially end the work of the Tribunals by the establishment of the Residual Mechanisms will ultimately turn upon the question of whether any inherent unfairness could be occasioned to persons whose proceedings are before the Residual Mechanism. It will be suggested that the Security Council has provided the Residual Mechanism with sufficient tools to ensure that its proceedings are conducted in para passu with those of the Tribunals and that the responsibility of ensuring the highest standards of international due process and fairness falls to the Judges of the Residual Mechanism.
Topic:
Security
Political Geography:
Yugoslavia and Rwanda

132. Tadic Revisited: Some Critical Comments on the Legacy and the Legitimacy of the ICTY

Author:
Mia Swart
Publication Date:
12-2011
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
This article will return to questions raised during the establishment of the ICTY and particularly the Tadic case. It will be argued here that the aspect of Tadic that remains unresolved is the fundamental question of whether the ICTY has been established legitimately. The legitimacy argument forms an important part of the legacy debate of the ICTY. Although the Tadic Appeals Chamber has formally answered the question of the legitimacy of the ICTY it will be argued that the reasoning of the Appeals Chamber was not sufficiently strong or persuasive. The legitimacy debate reflects the wider influence of the ICTY's jurisprudence since some of the arguments made by the Tadic Appeals Chamber have been replicated or repeated in the trials of Saddam Hussein and Charles Taylor. The legitimacy question is crucial since it affects the very foundations of the ICTY. If the legitimacy of the ICTY is not established satisfactorily, it affects how one considers the achievements mentioned above. In a sense the substantive and procedural achievements of the ICTY are dependent on the legitimacy of the ICTY. This article will consider the difference between the ICTY's self-perception and the way the work of the Tribunal over the last sixteen years has been perceived from the outside. The focus of the article will be on the lingering question of the legitimacy of the Tribunal. It has argued that legitimacy can also be acquired after the initial establishment. The article will consider whether the ICTY's initial defect in legitimacy could subsequently be remedied by the fairness of the proceedings and the moral power of the ICTY.
Topic:
Security
Political Geography:
Yugoslavia

133. The Legacy of the ICTY as Seen Through Some of its Actors and Observers

Author:
Frédéric Mégret
Publication Date:
12-2011
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
This article proposes an exploration of the 'legacy' of the ICTY through the experience of some of its actors and observers. It is based on material provided by a dozen interviews and written in the spirit of understanding the tribunal's legacy as a collection of complex individual narratives of what the tribunal stands for, what it did well, and what it might have done better. The legacy of the ICTY as an international criminal tribunal on the one hand, and as a device for transitional justice on the other hand are considered. Although a tension is found to exist between a more 'forensic' and a more 'transitional' view of its role which is particularly manifest in determining the tribunal's constituencies and policies, the two are also linked. There is broad consensus about the tribunal's importance, but on the eve of its closing, also a sense of the limits of what international criminal justice can aspire to achieve.
Political Geography:
Yugoslavia

134. The ICTY Legacy: A Defense Counsel's Perspective

Author:
Michael G. Karnavas
Publication Date:
12-2011
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
The ICTY's achievements are as impressive as they are irrefutable. Less impressive is the uneven quality of procedural and substantive justice that the Tribunal has rendered. The author highlights several shortcomings at the Tribunal, including the appointment of unqualified judges, excessive judicial activism, its disparate application of law, procedure, and prosecutorial resources to different ethnic groups, and its tinkering with the rules of procedure to promote efficiency at the cost of eroding the fundamental rights of the Accused. Drawing on specific examples, from the approach adopted concerning the admissibility of testimonial evidence to specific areas of substantive law where judicial activism has been pronounced – the development of joint criminal enterprise and the requirements for provisional release at a late stage of the proceedings – this article is one defense counsel's perspective of some of the most unfortunate shortcomings of the ICTY, which regrettably form part and parcel of the Tribunal's legacy.
Topic:
Security and Law
Political Geography:
Yugoslavia and United Nations

135. The Winding Down of the ICTY: The Impact of the Completion Strategy and the Residual Mechanism on Victims

Author:
Giovanna M. Frisso
Publication Date:
12-2011
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
Even though not clearly spelled out in its constitutive instrument, one characteristic of the International Criminal Tribunal for the Former Yugoslavia (ICTY) is its temporary character. This characteristic presents the ICTY with a significant challenge, the complexity of which is increased by the fact that the tribunal has a multi-faceted mandate. This article examines the effects of the completion strategy of the ICTY on the victims of the crimes under its jurisdiction. Initially, it considers the impact of the completion strategy on the victims who participated, as witnesses, in the proceedings before the ICTY. It argues that the pressure to comply with the timeframe established by the Security Council has resulted in the reduction of the victims to their forensic usefulness. The victims were considered primarily in light of their instrumental relevance to the proceedings. Then, the article suggests, through the analysis of the referral of cases to domestic courts and the value of the archives of the ICTY, that the completion strategy can or might have a positive effect on the implementation of the rights of the victims who have not had direct contact with the ICTY. In this context, this article argues that the termination of the ICTY does not necessarily mean that the struggle for the implementation of the rights of the victims has finished.
Topic:
Security
Political Geography:
Yugoslavia

136. Editorial

Publication Date:
08-2010
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
After our last issue “Strategies for Solving Global Crises – The Financial Crisis and Beyond” in March we are delighted to present this issue to our esteemed readers.

137. New Protectionism – How Binding are International Economic Legal Obligations During a Global Economic Crisis?

Author:
Stephan Hobe and Jörn Griebel
Publication Date:
08-2010
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
The global financial crisis has not only instigated states to enact a wide range of protectionist measures, by which they seek to protect their economic interests, but it also forms the background against which possible justifications regarding protectionist measures have to be discussed and measured. The present article examines recent examples of protectionist measures and discusses, to what extent such measures may be justified by rules stemming from the WTO legal regime or international investment law in general. The authors focus on the concept of “economic necessity”, which is enshrined in Art. 25 of the ILC Articles on State Responsibility and which has taken on even greater importance due to the Argentina investement law cases. They furthermore explore, whether this concept has been recognized by the WTO legal regime and/or bilateral investment treaties (BITs) and what criteria would have to be met so that a state could successfully rely on necessity to justify its actions in times of an economic crisis.
Political Geography:
Argentina

138. Reservations and the Effective Protection of Human Rights

Author:
Johanna Fournier
Publication Date:
08-2010
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
Already since the first United Nations (UN) human rights treaties have been signed in 1966, it has been contested whether signatory states should be allowed to make reservations to different articles of the treaties. Many argue that reservation undermine the treaties and are not compatible with the universal application of human rights. One might hence ask whether reservations are compatible with human rights at all. Without disagreeing with these demurs, this essay will reverse the question: Is an effective protection of human rights possible without reservations? To answer this question, this essay will outline the current legal and practical framework on making reservations to UN human rights treaties in Part A. and will present a possible modification to this framework. In Part B. it will then demonstrate how reservations can be used to actually advance the effective protection of human rights. By being used as a starting point for the dialogue between the treaty bodies and the signatory state, reservations do not undermine human rights treaties, but support their purpose: the effective protection of human rights.
Topic:
United Nations

139. The Future of Peacekeeping in Africa and the Normative Role of the African Union

Author:
Charles Riziki Majinge
Publication Date:
08-2010
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
While it has been the responsibility of the United Nations to conduct peacekeeping operations on the continent, the trend is gradually changing. African Union and its regional organizations (RECs) are increasingly assuming responsibility of securing peace and stability on the continent. Many reasons militate in favour of this trend. Chiefly the unwillingness of the United Nations Security Council and of the developed countries to intervene timely and adequately to avert humanitarian catastrophes as happened in Rwanda, Southern Sudan and Angola. Furthermore, the desire of Africa to take steps to address its own problems without heavily relying on assistance from the international community whose availability is neither assured nor sufficient. This contribution argues that Africa can no longer expect the international community to shoulder the burden of peacekeeping in some of the most intractable conflicts on the continent without taking steps to participate actively in the process itself. While Africa has expressed its desire to address its own problems through the vision of “African solutions for African Problems”, African leaders must show greater willingness to fund and strengthen institutions they establish to carry out this vision. Lastly, the paper contends that the international community, especially the developed states, should take genuine and adequate measures to assist Africa realize its vision. A strong African Union capable of securing peace and stability on the continent is in the best interests not only of Africa but also of the international community as a whole.
Political Geography:
Africa, Sudan, Rwanda, and Angola

140. Humaneness, Humankind and Crimes against Humanity

Author:
Bernhard Kuschnik
Publication Date:
08-2010
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
Due to its vagueness, the notion of humanity has created some discomfort within the system of international criminal law ever since it was codified as a legally binding concept in the mid 1940's. In Prosecutor v. Kantanga/Chui the Pre-Trial Chamber I of the International Criminal Court (ICC) has given its own interpretation of the term. The Chamber claimed that the related provision of 'other inhumane acts' is more strictly construed in the ICC Statute than in previous Statutes of the ICTY and ICTR, and cannot be regarded as a catch all provision, and should predominantly be interpreted from the wording of the ICC Statute. The author argues in this article that a broad interpretation of 'other inhumane acts' pursuant to Article 7(1) (k) of the ICC Statute is required. The notions of humanity and 'other inhumane acts' should be concretized by relying closely on the legal historical and linguistic roots of the provision. Coming from this analysis, it is suggested that a serious injury to human dignity should count as an 'other inhumane act' and thus, as a crime against humanity.