The Effectiveness of International Criminal Tribunals

The Effectiveness of International Criminal Tribunals

by Cedric Ryngaert (Editor)

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Overview

The Effectiveness of International Criminal Tribunals by Cedric Ryngaert

This edited volume ascertains the added value of international criminal tribunals in fighting impunity for crimes against international law and fostering political reconciliation in affected States. It identifies the best practices which may inform the choice between the establishment of international criminal tribunals and recourse to other mechanisms, and which may render existing or future tribunals more effective institutions. The first part of the book analyzes how such tribunals, if the international community decides to establish them, could be effective institutions. Obviously, the tribunals' conduct of their own legal proceedings, within their mandate, may go a long way to make the tribunals effective mechanisms of post-conflict justice (e.g. prosecutor's choice of suspects, outreach, human rights protection, victims' participation, etc.). It will be argued, however, that effectiveness will, in fact, for a large part, depend on factors outside the tribunal's control, such as the presence of the right political parameters and the financial, logistical, and other support of States. The second part contrasts international criminal justice with other judicial or political mechanisms aimed at dispensing justice or reconciling communities. As opposed to international justice avenues, an answer is sought to the question whether national amnesties for grave crimes or restorative justice mechanisms (reparations, housing restitution) could sometimes be more effective than international criminal tribunals.

Product Details

ISBN-13: 9789050958127
Publisher: Intersentia
Publication date: 10/15/2009
Pages: 306
Product dimensions: 6.50(w) x 9.50(h) x 1.00(d)

Table of Contents

Acknowledgements v

Introduction Cedric Ryngaert vii

Cost xix

Part I Making International Criminal Tribunals Work

The International Military Tribunals In Nuremberg And Tokyo-Epoch-making and standard-setting, yet with different effectiveness Erik André Andresen 3

1 Historical Background-Early Examples 4

2 The First World War-The Leipzig Cases 5

3 The League of Nations 7

4 Nuremberg and Tokyo 7

5 The International Military Tribunal in Nuremberg 8

6 The International Military Tribunal in the Far East (Tokyo) 15

7 Critique of the International Military Tribunals 19

8 The Significance of the International Military Tribunals 21

9 The Effectiveness of the International Military Tribunals 22

Literature 24

The Balanced Scorecard Of International Criminal Tribunals Mikaela Heikkilä 27

The Idea of Balanced Scorecaids 27

The Vision and Strategy of the International Criminal Tribunals 30

The Stakeholder Perspective 32

The Internal Process Perspective 38

Numeric Performance Indicators 41

Learning and Growth Perspective 46

Reflections on Effectiveness Evaluations Regarding the International Criminal Tribunals 48

Safeguarding The Rights Of Suspects And Accused Persons In International Criminal Proceedings Masha Fedorova Sten Verhorven Jan Wouters 55

1 Introductory Remarks 55

1.1 Purpose and Scope of this Contribution 55

1.2 The Question of Effectiveness 56

2 Comparing Legal Frameworks 58

2.1 Legal Frameworks of ICTY/ICTR and ICC 58

2.1.1 Presumption of innocence 59

2.1.2 Right to a fair and public trial 61

2.1.3 Other guarantees of fair trial 62

2.2 Applicability of Human Rights Standards to International Criminal Proceedings63

Internationa (Criminal Proceedings 63

3 Application of Human Rights: Selected Issues 65

3.1 Protection of Rights During Investigation 66

3.2 Rights of the Defence 70

3.3 Disclosure Obligations and the Right to Obtain Exculpatory Evidence 74

4 Providing for an Effective Remedy in Case of Violations of the Rights of the Suspect or the Accused 77

4.1 General Remarks on the Right to an Effective Remedy 77

4.2 Slay of Proceedings 80

4.3 Right to Compensation 85

5 Conclusion 89

Apples And Oranges? Victim Participation Approaches At the ICC And ECCC Brianne McGonigle 91

1 Introduction 91

2 Procedural Frameworks of the Courts in Relation to Victims 93

2.1 The International Criminal Court and Victim Participation 94

2.2 The Extraordinary Chambers in the Court of Cambodia and Civil Party Participation 95

3 Effective Approaches? 97

3.1 Criteria for Determining Victim Status 97

3.2 Modalities of Participation 105

3.3 Dual Status of Victim-Witnesses 111

4 Conclusion 114

The Creation Of A Global Criminal Justice System: The European Union And The International Criminal Court Jan Wouters Sudeshna Basu 117

1 Introduction 117

2 The EU and International Criminal Justice 118

2.1 EU Guidelines: A Framework to Protect and Promote International Humanitarian/Criminal Law in Third Countries 119

2.2 The EU's Approach to International Criminal Justice Mechanisms: ICTR and ICTY 120

3 The Need for an International Criminal Court 123

4 The Establishment of the ICC and Variables that Determine Its Effectiveness 125

5 A Global Criminal Justice System based on International Cooperation 128

6 The EU and the International Criminal Court 129

6.1 Why Does the EU Support the ICC? 129

6.2 EU-ICC Cooperation 132

6.3 The EU and the Universality and Integrity of the Rome Statute 133

6.4 Universality of the Rome Statute and the Case of the Czech Republic 135

6.5 The EU and the Independent and Effective Functioning of the International Criminal Court 136

6.5.1 European network of contact points in respects of persons responsible for genocide, crimes against humanity and war crimes 138

6.5.2 EU Framework Decision on the European Arrest Warrant 138

6.5.3 EU Framework Decision on the investigation and prosecution of genocide, crimes against humanity and war crimes 139

6.5.4 Summary 140

Conclusion 140

Part II Fostering Peace, Human Rights And Security Through Complementary Judicial Or Political Mechanisms

The Principle Of Complementarity: A Means Of Ensuring Effective International Criminal Justice Cedric Ryngaert 145

1 The Positive Complementarity Principle: A Path Towards an Effective Administration of Justice 148

2 Positive Complementarity in Practice 153

2.1 Democratic Republic of the Congo 153

2.2 Uganda 155

2.3 Central African Republic 159

2.4 Darfur, Sudan 161

3 Complementarity and Transitional Justice Efforts 164

4 Complementarity In Other International Criminal Tribunals 167

5 Concluding Observations 170

The Legacy Of The ICTR In Rwanda In The Context Of The Completion Strategy: The Impact Of Rule 11BIS Inneke Onsea 173

Introduction 173

1 The Life of the Tribunal and Implementation of the Completion Strategy through Rule 11bis 174

1.1 International Justice Response Gradually Replaced by National Justice Response 174

1.2 The Obstacles Faced in Implementing Rule 11bis 177

13 Rwanda as One of the Only Options to Assist the Tribunal in the Completion of its Mandate 180

2 The Contribution of Rule 11bis Ws on Rwanda's Legal Framework and Practical Application of Rule 11bis vis-à-vis Rwanda 182

Ambiguity About Applicable Punishment 185

Fair Trial Issues 186

3 The Way Forward 189

4 Conclusion 193

The Role Of Amnesties In Conflict Transformation Louise Mallinder 195

1 Introduction 195

2 Growing Controversy on the Use of Amnesties 196

3 Exploring Key Concepts 202

3.1 Exploring the Nature of Conflict and Cultures of Violence 202

3.2 Denning Amnesty and Its Objectives 208

4 Amnesties in Ongoing Conflicts 210

5 Amnesties during Peace Negotiations 212

6 Amnesties in Conflict Transformation 216

6.1 Transformine. the Attitudes of Individuals 220

6.2 Transforming Entrenched Cultures of Violence at the Communal Level 226

6.3 National Transformation Projects 229

6.4 Role of International Actors in Conflict Transformation 232

7 Conclusions and Recommendations 233

Financial Compensation For Victims Of International Crimea As A Political Process Peter Malcontent 237

Introduction 237

The Rise of Financial Compensation as a Remedy in International Law 241

The Legal Approach in Practice 246

Financial Compensation as a Political Process 250

Concluding Observations 255

The Other Path To Peace: Restitution As A Method to undo past injustice Antoine Buyse 257

1 Introduction 257

2 Restitution Efforts as Part and Parcel of Structural Peace 258

3 Housing and Property Restitution in Practice: the Bosnian Case 264

4 A Disappointing Start 268

5 Trying a Different Approach 271

6 Endgame 274

7 Conclusion 277

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