Martinus Nijhoff Online

 The Emerging Practice of the International Criminal Court

Contents

• • Preliminary Material (i-xviii)   (160K)
    • Jump to section:
    • Table Of Contents
    • Abreviations
    • Foreword
  • From "Infancy" To Emancipation? - A Review Of The Court's First Practice (1-8) by Carsten Stahn and Göran Sluiter   (103K)
  • ICC Marks Five Years Since Entry Into Force Of Rome Statute (9-12) by Philippe Kirsch   (80K)
  • The International Criminal Court In Motion (13-20) by Luis Moreno Ocampo   (103K)
    • Jump to section:
    • 1. Selection Of Situations
    • 2. Policy Of Focused Investigations And Prosecutions
    • 3. Future Challenges Of The Court: Enforcing Judicial Decisions
    • Addendum
  • The International Criminal Court Five Years On: Andante Or Moderato? (21-30) by Antonio Cassese   (126K)
    • Jump to section:
    • 1. The Failings Of The Current World Community
    • 2. The ICC One Of The Few Bright Spots In The World Community
    • 3. Six Daunting Tasks For The Builders Of A New International Judicial Institution, Which May Also Serve As Parameters For Appraising Its Efficacy
    • 4. Applying The Various Benchmarks To The ICC
    • 5. The Crucial Parameter Of Judicial Productivity
    • 6. The Question Of States' Judicial Cooperation
    • 7. Concluding Remarks
  • The International Criminal Court - Its Relationship To Domestic Jurisdictions (31-38) by Hans-Peter Kaul   (107K)
    • Jump to section:
    • 1. Introduction
    • 2. Jurisdiction And Admissibility
    • 3. Cooperation
    • 4. Conclusion
  • Auto-Referrals And The Complementary Nature Of The ICC (39-54) by Jann K. Kleffner   (145K)
    • Jump to section:
    • 1. Introduction
    • 2. Applicability Of Complementarity
    • 3. Auto-Referrals And The Procedural Framework Of Complementarity
    • 4. Conclusion
  • The Legitimacy Of Withdrawing State Party Referrals And Ad Hoc Declarations Under The Statute Of The International Criminal Court (55-78) by Mohamed M. El Zeidy   (194K)
    • Jump to section:
    • 1. Introduction
    • 2. Development Of The Question Of Withdrawing A State Party'S Referral Under Articles 13 (A) And 14 (1) Of The Rome Statute
    • 3. Development Of The Question Of Withdrawing A Third State'S Ad Hoc Declaration Under Article 12 (3) Of The Rome Statute
    • 4. The Legal Basis For Assessing The Question Of Withdrawal Under The Rome Statute
    • 5. Conclusion
  • Shaping The Contours Of Domestic Justice: The International Criminal Court And An Admissibility Challenge In The Uganda Situation (79-114) by William W. Burke-White and Scott Kaplan   (248K)
    • Jump to section:
    • 1. The Legal Basis For Challenging Admissibility
    • 2. Three Visions Of Admissibility
    • 3. The Potential Ugandan Admissibility Challenge
    • 4. Conclusion: Evaluating Admissibility, Shaping Domestic Justice
  • The International Criminal Court And Its Relationship To Non-Party States (115-134) by Robert Cryer   (165K)
    • Jump to section:
    • 1. Introduction
    • 2. The Law On Point
    • 3. The Court'S Janus-Faced Nature
    • 4. Judges And Diplomats
    • 5. Conclusion
  • The International Criminal Tribunal For The Former Yugoslavia: Transitional Justice, The Transfer Of Cases To National Courts, And Lessons For The ICC (135-162) by David Tolbert and Aleksandar Kontic   (208K)
    • Jump to section:
    • 1. Introduction
    • 2. Antecedents To The Transfer Of Cases: The Outreach Programme And Rules Of The Road Cases
    • 3. Transfer Of Cases
    • 4. Conclusions: The Transfer Of Cases And Transitional Justice
  • The Responsibility To Enforce - Connecting Justice With Unity (163-182) by Rod Rastan   (168K)
    • Jump to section:
    • 1. Introduction
    • 2. Cooperation: A Two-Pillar System
    • 3. Horizontal And Vertical Regimes Revisited
    • 4. The Responsibility To Enforce
    • 5. Cooperation In Practice
    • 6. The Assembly Of States Parties - Responses To The Challenge Of Cooperation
    • 7. Conclusion
  • Peace, Security, And Prosecutorial Discretion (183-208) by Jens David Ohlin   (191K)
    • Jump to section:
    • 1. Introduction
    • 2. The First Referral
    • 3. The Security Council'S Chapter VII Authority
    • 4. A Theory Of International Criminal Law
    • 5. Conclusion
  • The Selection Of Cases By The Office Of The Prosecutor Of The International Criminal Court (209-218) by Fabricio Guariglia   (119K)
    • Jump to section:
    • 1. Introductory Remarks
    • 2. The Selection Of Cases By The Office Of The Prosecutor Of The International Criminal Court
  • Developing And Implementing An Effective Positive Complementarity Prosecution Strategy (219-228) by Christopher Keith Hall   (131K)
    • Jump to section:
    • 1. Complementarity
    • 2. Where Are We Now?
    • 3. Other International Criminal Courts
    • 4. Two Other Aspects Of Prosecution Strategy
    • 5. What Has Been The Message Sent By The Office Of The Prosecutor To States About Their Obligations To Investigate And Prosecute Crimes That It Is Not Investigating And Prosecuting?
    • 6. Conclusion
  • Prosecutorial Discretion And Gravity (229-246) by William A. Schabas   (150K)
    • Jump to section:
    • 1. Introduction
    • 2. Initial Statements Ignore Issue Of Gravity
    • 3. Gravity Becomes 'Central' To Case Selection
    • 4. Complementarity In Practice
    • 5. Senior Leaders
    • 6. Quantity Or Quality?
    • 7. Conclusions
  • Judicial Review Of Prosecutorial Discretion: Five Years On (247-280) by Carsten Stahn   (239K)
    • Jump to section:
    • 1. Introduction
    • 2. Conceptual Background
    • 3. The Legal Framework Of Judicial Review
    • 4. Experiences Of The First Practice
    • 5. Lessons
  • Article 21 Of The Statute Of The International Criminal Court And The Treatment Of Sources Of Law In The Jurisprudence Of The ICC (281-304) by Gilbert Bitti   (173K)
    • Jump to section:
    • 1. Introduction
    • 2. Internal Sources Of Law
    • 3. External Sources Of Law
    • 4. Conclusion
  • The Status Of ICTY And ICTR Precedent In Proceedings Before The ICC (305-326) by Volker Nerlich   (179K)
    • Jump to section:
    • 1. Introduction
    • 2. The Use Of Precedent At The Icty And Ictr - An Overview
    • 3. Icty And Ictr Precedent And The Determination Of Sources Under Article 21 (1) (B) And (C) Of The Rome Statute
    • 4. Icty And Ictr Precedent And The Interpretation Of The ICC Legal Instruments
    • 5. Conclusion
  • Committing Liability In International Criminal Law (327-338) by Steffen Wirth   (131K)
    • Jump to section:
    • 1. Introduction
    • 2. Co-Perpetration
    • 3. Indirect Perpetration
    • 4. Other Examples Of Multi-Person Commission
    • 5. Conclusion
  • Developments In The Distinction Between Principal And Accessorial Liability In Light Of The First Case Law Of The International Criminal Court (339-360) by Héctor Olásolo   (181K)
    • Jump to section:
    • 1. The Meaning Of The Distinction Between Principal And Accessorial Liability
    • 2. The Adoption Of The Distinction Between Principal And Accessorial Liability In International Criminal Law
    • 3. The Distinguishing Criterion Between Principals And Accessories To The Crime In International Criminal Law: The Doctrines Of Joint Criminal Enterprise And Joint Control Of The Crime
    • 4. Conclusion
  • Identifying An Armed Conflict Not Of An International Character (361-380) by Sandesh Sivakumaran   (163K)
    • Jump to section:
    • 1. Introduction
    • 2. Article 8 (2) (C)
    • 3. Article 8 (2) (E)
    • 4. Conclusion
  • Can The "Elements Of Crimes" Narrow Or Broaden Responsibility For Criminal Behaviour Defined In The Rome Statute? (381-400) by Otto Triffterer   (163K)
    • Jump to section:
    • 1. Introduction: Defining Crimes By Emphasizing Their Specificities Or By Describing The Material And Mental Elements Required Separately For Each Of Them In A Comprehensive And Exhaustive Fashion?
    • 2. Article 9 Rome Statute, A Political Compromise To Cope With Reservations, Hesitating Agreements Or The Acceptance Of Definitions Of Crimes In Articles 6, 7 And 8?
    • 3. Scope And Notion, Function And Limits Of The Elements Of Crimes
    • 4. Examples Allegedly "Consistent With This Statute"?
    • 5. Future Perspectives
    • 6. Addendum
  • A Structural Analysis Of The Role Of The Pre-Trial Chamber In The Fact-Finding Process Of The ICC (401-440) by Simon De Smet   (260K)
    • Jump to section:
    • 1. Introduction
    • 2. Putting The ICC'S Procedure In Context
    • 3. Structural Analysis Of The Pre-Trial Chamber'S Role In Fact-Finding
    • 4. Conclusion
  • Fairness And Expeditiousness In The International Criminal Courts Pre-Trial Proceedings (441-458) by Ekaterina Trendafilova   (173K)
    • Jump to section:
    • 1. Introduction
    • 2. Disclosure Proceedings
    • 3. Confirmation Of Charges "In Absentia"
  • Human Rights Protection In The ICC Pre-Trial Phase (459-476) by Göran Sluiter   (148K)
    • Jump to section:
    • 1. Introduction
    • 2. General Applicability: The Effect Of Article 21 (3) Of The Statute
    • 3. The Interpretation Of Article 59 Of The Statute
    • 4. Concluding Remarks
  • How To Achieve Fair And Expeditious Trial Proceedings Before The ICC: Is It Time For A More Judge-Dominated Approach? (477-500) by Robert Heinsch   (192K)
    • Jump to section:
    • 1. Introduction
    • 2. What Makes International Criminal Proceedings So Slow?
    • 3. What Are The Prospects For Change?
    • 4. Conclusion
  • The Trial Chamber'S Discretionary Power To Devise The Proceedings Before It And Its Exercise In The Trial Of Thomas Lubanga Dyilo (501-524) by Reinhold Gallmetzer   (191K)
    • Jump to section:
    • 1. Introduction
    • 2. The Trial Chamber'S Procedural Discretion
    • 3. The Procedural Direction Given By The Trial Chamber In The Trial Of Thomas Lubanga Dyilo
    • 4. Conclusion
  • The First Jurisprudence Of The Appeals Chamber Of The ICC (525-552) by Franziska C. Eckelmans   (191K)
    • Jump to section:
    • 1. Composition And Organisation Of The Appeals Chamber
    • 2. Jurisprudence Of The Appeals Chamber On The Merits Of Appeals Mounted
    • 3. Jurisprudence Of The Appeals Chamber With Respect To The Admissibility Of Appeals Under Article 82 (1) And The Powers Of The Appeals Chamber In Such Appeals
    • 4. Appeals Procedure In Appeals Under Rules 154 And 155
    • 5. Conclusion
  • Interlocutory Appeals In The Early Practice Of The International Criminal Court (553-562) by Håkan Friman   (113K)
    • Jump to section:
    • 1. Introduction
    • 2. The Legal Framework Of The ICC
    • 3. Practice
  • Contribution Of The Registry To Greater Respect For The Principles Of Fairness And Expeditious Proceedings Before The International Criminal Court (563-584) by Marc Dubuisson, Anne-Aurore Bertrand and Natacha Schauder   (178K)
    • Jump to section:
    • 1. Introduction
    • 2. An Original Contribution To Respect For The Principles Of Equity And Expeditious Proceedings: The Registry'S Technical Divisions
    • 3. A Delicate Balance Between The Principles Of Equity And Expeditious Proceedings: Witness Protection
    • 4. An Extended Benefit Of The Principles Of Fairness And Expeditiousness: Support To The Defence And To The Victims
    • 5. Conclusion
  • A Review Of The Experiences Of The Pre-Trial And Appeals Chambers Of The International Criminal Court Regarding The Disclosure Of Evidence (585-598) by David Scheffer   (131K)
    • Jump to section:
    • 1. Introduction
    • 2. Origins Of The Pre-Trial Chamber
    • 3. Context Of Atrocity Crimes
    • 4. A New Methodology?
    • 5. Cambodian Experience
    • 6. Pre-Trial Chamber I'S Performance So Far - Restraint Or Overreach?
    • 7. In Conclusion, Brief Answers To Brief Questions
  • "Witness Proofing" Before The ICC: Neither Legally Admissible Nor Necessary (599-614) by Kai Ambos   (170K)
    • Jump to section:
    • 1. The Object Of The Contention
    • 2. The Remaining Contention With Regard To "Witness Proofing": Legality And Necessity
  • Anonymous Witnesses Before The International Criminal Court: Due Process In Dire Straits (615-634) by Michael E. Kurth   (179K)
    • Jump to section:
    • 1. Introduction
    • 2. The Scope Of The Right To Fair Trial In International Criminal Proceedings
    • 3. The Treatment Of Anonymity Before The ICC
    • 4. Possible Consequences Of Due Process Breaches
    • 5. Conclusion
  • Article 68 (3) And Personal Interests Of Victims In The Emerging Practice Of The ICC (635-690) by Sergey Vasiliev   (361K)
    • Jump to section:
    • 1. Introduction
    • 2. Article 68 (3) Participatory Regime
    • 3. The "Personal Interests" Clause And Its Application By The Chambers
    • 4. Choice Of A Model: ICC At The Crossroads
    • 5. Conclusion
  • Role And Practice Of The Office Of Public Counsel For Victims (691-706) by Paolina Massidda and Sarah Pellet   (154K)
    • Jump to section:
    • 1. Introduction
    • 2. Creation And Functions Of The Office Of Public Counsel For Victims
    • 3. Interpretation Of The Role And Mandate Of The Office Of Public Counsel For Victims In Accordance With The Practice Of The Court
    • 4. Conclusion
  • The Crime Of Aggression (707-724) by Roger S. Clark   (147K)
    • Jump to section:
    • 1. Introduction
    • 2. "Conditions For The Exercise Of Jurisdiction": The Role Of The Security Council Or Other Organs
    • 3. Defining The Crime
    • 4. Trumping Some Of The General Principles
    • 5. Conclusion
  • Evaluating Domestic Legislation On The Customary Crime Of Aggression Under The Rome Statute'S Complementarity Regime (725-754) by Astrid Reisinger Coracini   (218K)
    • Jump to section:
    • 1. Introduction
    • 2. Domestic Prosecution Of The Crime Of Aggression
    • 3. National Provisions Defining The Crime Of Aggression
    • 4. Jurisdiction Of State Courts
    • 5. Conclusion
  • Demystifying The Procedural Framework Of The International Criminal Court: A Modest Proposal For Radical Revision (755-766) by Bacle Don Taylor III   (143K)
    • Jump to section:
    • 1. Introduction
    • 2. A Cacophony Of Codification: Voluminous, Needlessly Fragmented, And Hierarchically Ambiguous
    • 3. The Multiple Mechanisms Of Amendment
    • 4. Modifying The Framework To Promote Transparency And Efficiency
    • 5. Conclusion
  • Index (767-774)   (131K)