Martinus Nijhoff Online

 The Legal Regime of the International Criminal Court: Essays in Honour of Professor Igor Blishchenko

Contents

• • Preliminary material (i-xxvi)   (796K)
    • Jump to section:
    • Board Of Reviewers
    • Table Of Contents
    • Preface
    • Foreword I
    • Foreword II
    • From The Editors
    • Short Biography Of Professor Igor P. Blishchenko
    • General Introduction
  • Early efforts to establish an International Criminal Court (1-22) by Jackson Maogoto   (159K)
    • Jump to section:
    • 1. Introduction
    • 2.The Path To The Treaty Of Versailles
    • 3. Beyond The Treaty Of Versailles
  • The Tokyo trial revisited (23-50) by Hisakazu Fujita   (196K)
    • Jump to section:
    • I. Introduction
    • II. Background And Establishment Of The Tokyo Trial
    • III. Crime Against Peace And The Problem Of Conspiracy
    • IV. Conventional War Crimes And Crimes Against Humanity
    • V. Conclusion: Justice Of Civilization Or Victors Justice ?
  • The work of national military tribunals under control council law 10 (51-62) by Jackson Maogoto   (119K)
  • The experience of the Ad Hoc Tribunals for the former Yugoslavia and Rwanda (63-74) by Jackson Maogoto   (123K)
  • Customary law or judge-made law: Judicial creativity at the UN criminal tribunals (75-102) by William Schabas   (192K)
    • Jump to section:
    • I. Introduction
    • II. Identifying The Norms: State Practice And Opinio Juris
    • III. Customary Law As An Interpretative Presumption?
    • V. Crimes Against Humanity And Customary International Law
    • VI. Conclusions
  • Bombardment: From Brussels 1874 to Sarajevo 2003 (103-140) by Frits Kalshoven   (234K)
    • Jump to section:
    • I. Introduction
    • II. The Conference Of Brussels, 1874
    • III. The Hague 1899, 1907, 1923
    • IV. The Second World War
    • V. The Protocols Of 1977
    • VI. Sarajevo 2003
    • VII. Conclusion
  • The relationship between complicity modes of liability and specific intent crimes in the law and practice of the ICTY (141-160) by José Doria   (163K)
    • Jump to section:
    • Introduction
    • I. Objective And Subjective Elements Of International Offences
    • II. General Intent Crimes V. Specific Intent Crimes
    • III. Modes Of Liability For International Offences (Primary V. Secondary Prohibitions; Physical Perpetrators V. Accomplices)
    • IV. Complicity Modes Of Liability: Nature Of Its Mens Rea
    • V. Application Of Complicity Modes Of Liability To Specific Intent Crimes
    • Conclusions
  • Plea bargaining: The uninvited guest at the International Criminal Tribunal for the former Yugoslavia (161-182) by Mark Harmon   (165K)
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    • I. A Description Of Plea Bargaining
    • II. Plea Bargaing At The Icty From Pariah To Pillar Of Justice
    • III. Judicial Control Over Plea Agreements At The Icty
    • IV. The Benefits Of Plea Bargaining
    • V. Conclusion
  • Provisional release in the law of the International Criminal Tribunal for the former Yugoslavia (183-208) by Fergal Gaynor   (184K)
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    • I. Introduction
    • II. The Early Years: A Presumption Against Provisional Release
    • III. General Standards Concerning Provisional Release
    • IV. Rule 65 Of The Icty Rpe
    • V. The Practical Application Of Rule 65 Of The Icty Rpe
    • VI. The Onus And Standard Of Proof In Rule 65 Proceedings
    • VIII. Whether The Accused Will Appear For Trial
    • VIII. Whether The Accused Will Interfere With Any Victim, Witness Or Other Person
    • IX. The Discretionary Power
    • X. Provisional Release Following Conviction After A Guilty Plea
    • XI. Provisional Release Following A Conviction At Trial
    • XII. Provisional Release For Medical Treatment
    • XIII. Provisional Release Of An Accused Who Is Unfit To Stand Trial
    • XIV. Provisional Release Of Terminally ILL Accused For Humanitarian Reasons
    • XV. Freedom Of Speech While On Provisional Release
    • XVI. Conclusion
  • Undue delay and the ICTYS experience of status conferences: A judge's personal annotations (209-226) by Almiro Rodrigues   (144K)
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    • I. The Right To Be Tried Without Undue Delay
    • II. The Echr Principles In The Context Of International Criminal Tribunals
    • III. The Ictys Experience Of Status Conference
    • IV. Lessons Drawn From The Cases Of Aleksovski And General Blaaki
    • V. Status Conferences And Undue Delay
    • VI. Some Innovative Solutions
    • VII. In General Gali Case (Sarajevo)
    • VIII. Current Article 65 Ter Main Principles
    • IX. Applying The Test In Proceedings Before The Court Of Bih War Crimes Chamber
    • X. Conclusion
  • The work of the special court for Sierra Leone through its jurisprudence (227-254) by José Doria   (180K)
    • Jump to section:
    • Introduction
    • I. The Question Of The Legality Of The Court Under International Law
    • II. The Question Of The Legality Of The Special Court Under National Law Of Sierra Leone
    • III. The Question Of The Legality Of Amnesties And The Temporal Jurisdiction Of The Special Court
    • IV. The Question Of How Funding The Court From Voluntary Contributions Impacts On Its Judicial Independence
    • V. The Meaning Of Those Who Bear The Greatest Responsibility Under Article 1 Of The Statute Of The Special Court
    • VI. How The Establishment Of The Special Court For Sierra Leone Through A Bilateral Agreement With The Un Has Influenced Its Work
  • From east Timor to Timor-Leste: A demonstration of the limits of international law in the pursuit of justice (255-296) by Richard Burchill   (236K)
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    • I. Introduction
    • II. Historical Background
    • III. Violent Responses To A Second Chance At Independence
    • IV. Efforts Toward Ensuring Justice And Overcoming Impunity
    • V. Any Chance For Justice?
    • VI. The End Of Impunity? Or Long Live Impunity (For Some)
    • VII. Conclusion
  • Bosnias war crimes chamber and the challenges of an opening and closure (297-328) by Avril Mcdonald   (211K)
    • Jump to section:
    • I. Introduction
    • II. The Ictys Completion Strategy And The Process Leading To The Establishment Of The War Crimes Chamber
    • III. Other Legal Changes Necessary For The Functioning Of The War Crimes Chamber
    • IV. Main Features Of The Court
    • V. The Relationship Between The Icty And The War Crimes Chamber
    • VI. Conclusions
  • The judges of the international criminal court and the organization of their work (329-344) by Hirad Abtahi   (140K)
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    • I. Introduction
    • II. Qualifications And Election Of Judges
    • III. The Election Of The Presidency And The Assignment Of Judges To Divisions
    • IV. Divisions And Chambers
    • V. Plenary Sessions
  • The International Criminal Courts office of the prosecutor: Navigating between independence and accountability? (345-386) by Jan Wouters, Sten Verhoeven and Bruno Demeyere   (245K)
    • Jump to section:
    • Introduction
    • Section I. The Office Of The Prosecutor And Its International Civil Servants
    • Section II. The Office Of The Prosecutor: An Unaccountable Organ?
    • Section III: Prosecutorial Policy And Discretion
    • Section IV. The Stage Of Preliminary Examinations
    • Section V: The Investigations And The Pre-Trial Phase
    • Concluding Observations
  • The support work of the courts registry (387-400) by Anna Lachowska   (136K)
    • Jump to section:
    • Introduction
    • I. The Experience Of The Ad Hoc Tribunals And How It Is Reflected In The Model Registry Of The Icc
    • II. Structure And Functions Of The Icc Registry
  • Jus Cogens, obligations Erga Omnes and international criminal responsibility (401-420) by Władysław Czapliński   (143K)
  • Jurisdiction Ratione Personae or the personal reach of the courts jurisdiction (421-454) by Christopher L. Blakesley   (239K)
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    • Introduction And Conceptual Background
    • I. General Principles Of Jurisdiction
    • II. Customary International Law, Immunities, The Icc, Jurisdiction Ratione Personae, And Article 98 Agreements
    • Jurisdiction And Amnesties
    • Conclusion
  • The ICC and the security council: An uncomfortable relationship (455-484) by Nigel White and Robert Cryer   (204K)
    • Jump to section:
    • Introduction
    • I. The Law Of The Charter And The Rome Statute
    • II. The Background To The Debate: Two Independent Institutions
    • III. The Icc And The Security Council: The Rome Statute
    • IV. The Practice Of The Security Council
    • V. Political Versus Judicial
    • VI. Peace Versus Justice
    • Conclusion
  • Conduct of hostilities war crimes (485-536) by Lindsay Moir   (279K)
    • Jump to section:
    • Introduction
    • I. War Crime Of Attacking Civilians
    • II. War Crime Of Attacking Personnel Or Objects Involved In A Humanitarian Assistance Or Peacekeeping Mission
    • III. War Crime Of Attacking Protected Objects
    • IV. War Crime Of Mutilation And Medical Or Scientific Experiments
    • V. War Crime Of Treacherously Killing Or Wounding
    • VI. War Crime Of Denying Quarter
    • VII. War Crime Of Destroying Or Seizing The Enemys Property
    • VIII. War Crime Of Pillaging
    • IX. War Crime Of Attacking Objects Or Persons Using The Distinctive Emblems Of The Geneva Conventions
  • Crimes involving disproportionate means and methods of warfare under the statute of the International Criminal Court (537-560) by Judith Gardam   (187K)
    • Jump to section:
    • Introduction
    • I. The Emergence Of The Prohibition Of Disproportionate Means And Methods Of Combat
    • II. The Criminalization Of Disproportionate Warfare In The Statute Of The Icc
    • Conclusion
  • International legal protections for persons hors de combat (561-578) by Sergei A. Egorov   (159K)
    • Jump to section:
    • Introduction
    • I. Early Attempts At Codifying Protections For Hors De Combats
    • II. Articles 41 And 42 Of Protocol I To The Geneva Conventions Of 12 August 1949: Revisiting Protections Provided For Persons Categorized As Hors De Combat
    • III. Criminal Liability For Killing Or Wounding A Person Hors De Combat Under Article 8(2)(B)(VI) Of The Icc
    • Conclusion
  • Child recruitment as a crime under the rome statute of the International Criminal Court (579-608) by Matthew Happold   (205K)
    • Jump to section:
    • Introduction
    • I. Child Recruitment In International Law
    • II. Child Recruitment In The Rome Statute
    • III. The Material Elements Of The Crime
    • IV. The Mental Element Of The Crime
    • V. Child Recruitment As A Crime Under Customary International Law
    • VI. Child Recruitment As Enslavement
    • VI. Prosecuting Child Recruitment
    • Conclusions
  • Particular issues regarding war crimes in internal armed conflicts (609-618) by Lindsay Moir   (104K)
    • Jump to section:
    • Introduction
    • I. Whether To Include Or Not Crimes Committed In Internal Armed Conflicts In The Icc Statute
    • II. Whether Violations Of Laws Of Internal Armed Conflicts Entail Criminal Responsibility
    • III. The Scope Of The Norms Applicable In Internal Armed Conflicts
    • IV. The Definition Of Internal Armed Conflict
    • V. The Nexus Requirement To An Armed Conflict
  • Violations of common Article 3 of the Geneva conventions (619-638) by Lindsay Moir   (172K)
    • Jump to section:
    • Introduction
    • I. Violence To Life And Person, In Particular War Crimes Of Murder, Mutilation, Cruel Treatment And Torture
    • II. War Crime Of Outrages Upon Personal Dignity
    • III. War Crime Of Taking Hostages
    • IV. War Crime Of Sentencing Or Execution Without Due Process
  • Displacement of civilians as a war crime other than a violation of common Article 3 in internal armed conflicts (639-642) by Lindsay Moir   (95K)
    • Jump to section:
    • Introduction
    • Elements Of The War Crime Of Displacement Of Civilians
    • Conclusions
  • Whether crimes against humanity are backdoor war crimes (643-660) by José Doria   (162K)
    • Jump to section:
    • I. Crimes Against Humanity, As The Crimes Of Crimes In Controversies
    • II. The Relationship Between Crimes Against Humanity And War Crimes
  • The crime of aggression and the International Criminal Court (661-700) by Roger S. Clark   (250K)
    • Jump to section:
    • Introduction
    • I. How Is The Provision On Aggression To Be Adopted? Ambiguity In Articles 121 And 123 Of The Rome Statute
    • II. Conditions For The Exercise Of Jurisdiction In The Coordinators Final Paper: The Role Of The Security Council Or Other Un Organs
    • III. The Definition As Contained In The Coordinators Final Paper
    • Conclusion
  • The doctrine of command responsibility (701-728) by Charles Garraway   (166K)
    • Jump to section:
    • I. Introduction
    • II. Command Responsibility And The Two World Wars
    • III. The Cold War Period
    • IV. Post Cold War Developments
    • V. The Current Position
    • VI. Conclusion
  • The transposition of military commanders discretion onto International Criminal responsibility for military commanders: An increasing legal-political dilemma within International Criminal justice (729-740) by Geert-Jan Alexander Knoops   (128K)
    • Jump to section:
    • I. Introduction: Pitfalls And Dangers Of Real Politik Pressures To Prosecute Military Commanders
    • II. The Role Of Military Commanders Discretion Within International Law: The Approach Of The Israeli Supreme Court
    • III. International Criminal Law Implications Of Military Commanders Discretion
    • IV. Conclusions And Recommendations
  • Official capacity and immunity of an accused before the International Criminal Court (741-756) by Eric David   (142K)
    • Jump to section:
    • I. An Explicit Distinction Between Exception On The Merits And Procedural Exception
    • II. The Exclusion Of A Procedural Plea Confined To The States Directly Or Indirectly Bound By The Icc Statute
    • Conclusions
  • Self-defence and state of necessity in the statute of the ICC (757-778) by Eric David   (175K)
    • Jump to section:
    • Introduction
    • I. Self-Defence
    • II. Necessity
    • Conclusions
  • The diverging position of criminal law defences before the ICTY and the ICC: Contemporary developments (779-794) by Geert-Jan Alexander Knoops   (147K)
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    • I. Introduction: The Lack Of Cohesion Relating To The Admissibility Of Defenses Before International And Hybrid Criminal Tribunals
    • II. Criminal Law Defenses Within The Laws Of The Icc And Icty Compared
    • III. Conclusions: Towards A Cohesive And Equal Application Of International Criminal Law Defenses
  • The rules of procedure and evidence and the regulations of the Court (795-824) by Silvia Fernández De Gurmendi and Hăkan Friman   (197K)
    • Jump to section:
    • I. Introduction
    • II. The Adoption Of Rules And Regulations Of The Court
    • III. Institutional Matters
    • IV. Objectives And Challenges
    • V. Some Aspects Of The Criminal Procedures
    • VI. Jurisdiction And Admissibility
    • VII. Cooperation By States And Organizations
    • VIII. Final Remarks
  • Charging in the ICC and relevant jurisprudence of the Ad Hoc Tribunals (825-842) by Vladimir Tochilovsky   (148K)
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    • Introduction
    • I. Statement Of The Facts In The Indictment
    • II. Confirmation And Amendment Of The Indictment
  • Prosecution disclosure obligations in the ICC and relevant jurisprudence of the Ad Hoc Tribunals (843-862) by Vladimir Tochilovsky   (170K)
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    • I. Introduction
    • II. Disclosure Of Exculpatory Material
    • III. Disclosure Of Other Material
    • IV. Late Disclosure
    • V. Restrictions On Disclosure
    • VI. Translation Of Disclosed Material
  • The conduct of trials (863-892) by Josée D'Aoust   (205K)
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    • I. Introduction
    • II. General Provisions
    • III. Commencement Of The Trial And Duties Of The Court
    • IV. Presentation Of Evidence
    • V. Closing Of The Case
    • VI. Conclusion
  • Victims rights and interests in the International Criminal Court (893-906) by Theo Van Boven   (130K)
    • Jump to section:
    • Introduction
    • I. The Perspective Of The Victim
    • II. The Victim In The International Criminal Tribunal For The Former Yugoslavia
    • III. The Victims Position In Preparatory Stages Of The Icc Statute
    • Summary Of Main Features
  • Ensuring effective participation and adequate redress for victims: Challenges ahead for the ICCI (907-924) by Laria Bottigliero   (154K)
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    • I. From Theory To Practice In Victims Redress
    • II. Does The Icc Referral Procedure Ensure Effective Participation Of Victims In The Proceedings?
    • III. Ensuring Adequate Reparations Through Victims Empowerment And An Accessible Trust Fund
    • IV. The Courts First Decision On Victim Participation: Some Welcomed Clarifications
    • V. Time To Fulfill The Promise Of The Iccs Reparation Regime
  • Uniform justice and the death penalty (925-942) by Eric Myjer   (146K)
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    • I. The Issue
    • II. Admissibility And The Complimentarity Principle Under The Rome Statute
    • III. Sentencing: The Penalties
    • VI. In Conclusion: A Principle Of Coherence
  • Standards of appeals and standards of revision (943-972) by José Doria   (194K)
    • Jump to section:
    • Introduction
    • I. Historical Survey
    • II. Grounds Of Appeal V. Standards Of Appeal
    • III. Grounds Of Appeal For Final Decisions
    • IV. Standards Of Review For The Different Grounds Of Appeal And Different Judgements
    • V. Grounds Of Revision V. Standards Of Revision
  • Cooperation with the court on matters of arrest and surrender of indicted fugitives: Lessons from the Ad Hoc Tribunals and national jurisdictions (973-1000) by Daniel Nsereko   (187K)
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    • I. Introduction
    • II. Arrest And Detention
    • III. Surrendering The Prisoner To The Tribunals
    • IV. Concluding Remarks
  • The International Criminal Court and the International Court Of Justice: Some points of contact (1001-1012) by Shabtai Rosenne   (113K)
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    • I. Introduction
    • II. Rome Statute, Article 119
    • III. Question Of Evidence And Witnesses
    • IV. Postscript
  • International humanitarian law and its implementation (1013-1038) by The Court and Robert Kolb   (188K)
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    • I. Introduction
    • II. International Criminal Court And War Crimes: Article 8 Of The Icc Statute
    • III. The Progressive Interrelation Of The Law Of International Armed Conflict And Of Non-International Armed Conflict
    • IV. The Widening Of The Scope Of International Armed Conflict Through The Overall Control Test
    • V. The Widening Of The Scope Of Geneva Convention IV Through A Broad Definition Of The Protected Persons
    • VI. The Permissibility Of Armed Reprisals Against Civilians
    • VII. The Question Of Forced Labor By Detained Persons
    • VIII. The Existence Or Not Of A Gap Between Geneva Conventions III And IV
    • IX. Conclusion
  • The International Criminal Court: Reviewing the case (An american point of view) (1039-1048) by Ruth Wedgwood   (107K)
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    • Ruth Wedgwood Replies
  • The dynamic but complex relationship between international penal law and international humanitarian law (1049-1070) by Yves Sandoz   (169K)
    • Jump to section:
    • Introduction
    • I. Historical Background
    • II. Penal Sanctions In Positive International Humanitarian Law
    • III. What Is Needed To Strengthen The Credibility And Effectiveness Of International Penal Justice?
    • IV. Apparent Contradiction In The Icrcs Attitude Toward International Criminal Courts
    • Conclusions
  • Ten principles for reconciling truth commissions and criminal prosecutions (1071-1104) by Lyal S. Sunga   (226K)
    • Jump to section:
    • I. Introduction
    • II. The Rise, Role And Value Of Truth Commissions
    • III. Where Truth Commissions And Criminal Prosecutions Conflict
    • IV. The International Communitys Renewed Commitment To Combat Impunity
    • V. What Should Be The International Communitys Attitude To Amnesty From Criminal Prosecution?
    • VI. Ten Principles For Reconciling Truth Commissions And Criminal Prosecutions
  • The ICC statute and the ratification saga in the states of the Commonwealth of independent states (1105-1110) by Aslan Abashidze and Elena Trikoz   (92K)
    • Jump to section:
    • Crime Of Aggression
    • Genocide
    • Crimes Against Humanity
    • War Crimes
    • Recent Antecedents Of Cooperation Of Cis Member States In The Fight Against War Crimes And Crimes Against Humanity
  • The changing relationship between International Criminal law, human rights law and humanitarian law (1111-1118) by Hans-Peter Gasser   (94K)
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    • 1st Period: Lonely Presence Of International Humanitarian Law
    • 2nd Period: Continuing Separate Evolution Of International Humanitarian Law And Human Rights Law
    • 3rd Period: Realizing The Close Relationship Between International Humanitarian Law And Human Rights Law?
    • 4th Period: ... And International Criminal Law
    • 5th Period: Synthesis
  • List of contributors (1119-1121)   (85K)
  • International humanitarian law series (1122-1122)   (72K)