Carsten Stahn

Accommodating Individual Criminal Responsibility and National Reconciliation: The UN Truth Commission for East Timor

The population of East Timor has been subjected to severe human rights violations, in both the near and the more distant past.1 Indonesia invaded the former Portuguese colony and non-self-governing territory under Chapter XI of the United Nations Charter on December 7,1975, after a period of civil turmoil and political instability marked by parallel claims to independence and calls for integration into Indonesia.2 The Indonesian invasion brought with it massive violations of human rights and the laws of war.3 Military clashes between the independence movement FRETILIN (Frente Revolucionaria do Timor Leste Independente) and Indonesia continued on a large scale until 1979, though rebellion against Indonesian rule generally persisted for the whole period of Indonesian occupation. Beginning in January 1999, pro-Indonesian militia, supported by Indonesian security forces.

The emerging practice of the International Criminal Court

BRILL Phone (NL) +31 (0)71-53 53 500 Phone (US) +1-617-263-2323 Email: marketing@brill.com The International Criminal Court is at a crossroads. In 1998, the Court was still a fiction. A decade later, it has become operational and faces its first challenges as a judicial institution. This volume examines this transition. It analyses the first jurisprudence and policies of the Court. It provides a systematic survey of the emerging law and practice in four main areas: the relationship of the Court to domestic jurisdictions, prosecutorial policy and practice, the treatment of the Court’s applicable law and the shaping of its procedure. It revisits major themes, such as jurisdiction, complementarity, cooperation, prosecutorial discretion, modes of liability, pre-trial, trial and appeals procedure and the treatment of victims and witnesses, as well as their criticisms. It also explores some of challenges and potential avenues for future reform.

Constitution Without a State? Kosovo Under the United Nations Constitutional Framework for Self-Government

On 15 May 2001 the Head of the United Nations Interim Administration in Kosovo (‘UNMIK’) signed into law Regulation 2001/9 establishing a Constitutional Framework for Provisional Self-Government in Kosovo. The document creates a provisional institutional framework for the exercise of public authority by Kosovos institutions of self-government during the territorys administration under United Nations rule. UNMIK delegates important parts of its responsibilities in the legislative, executive and judicial field to the local institutions envisaged in the document. At the same time, however, crucial areas remain under the direct authority of the United Nations administration. This article examines the modifications brought about by the Constitutional Framework by discussing the legal nature and the contents of the document in the light of the various legal instruments governing Kosovos institutional system throughout the last thirty years and previous international practice in the field of state-building and territorial reconstruction.

The Geometry of Transitional Justice: Choices of Institutional Design

Recent years have seen a proliferation of forms of transitional justice, ranging from pure truth and reconciliation formulas to various integrated approaches, combining international or internationalized trials with alternative forms of justice. Many of these phenomena have been examined in individual case studies. However, few attempts have been made to put the various pieces of the puzzle together and to analyze the merits and pitfalls of different institutional choices of transitional justice. This essay seeks to fill this shortcoming. It looks at different institutional designs of transitional justice from a comparative and impact-based perspective. It tries to identify some of the contextual parameters which may contribute to the success or failure of specific formulas of institutional design. Moreover, this contribution seeks to establish that international and domestic models of justice are not contradictory, but interdependent forces in the process of sustainable peacemaking, in areas such as criminal trials, victims protection and reparation. It argues that transitional justice requires pluralist and complementary approaches, combining parallel mechanisms at the domestic and the international level, in order to succeed in practice, especially after the coming into operation of the International Criminal Court.

The international criminal court and complementarity : from theory to practice

of contents Welcome Message – H.E Judge Sang-Hyun Song, President of the International Criminal Court Welcome Message – Ms. Patricia O’Brien, United Nations Under-Secretary-General for Legal Affairs, the Legal Counsel Preface – H.E. Judge Silvia A. Fernandez de Gurmendi Summary of contents Abbreviations Introduction – Carsten Stahn Bridge over troubled waters? Complementarity themes and debates in context Part 1 – General Reflections Chapter 1 Luis Moreno-Ocampo A positive approach to complementarity: The impact of the Office of the Prosecutor Chapter 2 Juan E. Mendez Justice and Prevention Chapter 3 Silvana Arbia Proactive complementarity – A Registrar’s perspective and plans

The International Criminal Court's Ad Hoc Jurisdiction Revisited

Article 12(3) of the Rome Statute of the International Criminal Court (ICC), which allows a state that is not a party to the Statute to “accept the exercise of jurisdiction by the Court” by way of a declaration lodged with the registrar, is one of the Statutes most inconspicuous provisions. It has attracted only brief notice either in the general literature on the jurisdiction of the ICC or in the particular context of the debate over U.S. objections to the Courts third-party jurisdiction. Few writers have looked closely at the provisions construction and procedural regime, and the first declaration made by a state under this provision—by the Ivory Coast in February 2005—has gone almost unnoticed in international theory and practice.

Enforcement of the Collective Will after Iraq

detailing the political compromises embodied in these deliberately ambiguous texts. He compares these transitional arrangements for Iraq to those implemented after other recent conflicts and envisions incremental movement toward a terminal point of international recognition and full self-government for Iraq. David J. Scheffer tackles the vexing problem of the significance of the international law of occupation for the conduct of United States and United Kingdom forces in Iraq. By publicly confirming their status as occupying powers and acknowledging the applicability of occupation law, the United States and the United Kingdom left themselves open, in Scheffers view, to potentially vast legal exposure for violation of the rules laid down in the Hague and Geneva Conventions governing occupations, even though aspects of that legal regime are unsuited to the kind of transformative role that the occupation authorities have to play in a thoroughgoing reorganization of Iraqi society. Scheffer contends that these legal liabilities could have been avoided or minimized through acceptance of a clearer UN Security Council mandate for the transition. Finally, Eyal Benvenisti takes up the responsibilities of the occupying powers in respect of Iraqs water supply and conflicts with Iraqs neighbors over the allocation of shared resources. Under both classical occupation law and the Security Council resolutions on Iraq (as well as other bodies of law, including the international law of human rights), the occupying powers are required to ensure the supply of clean drinking water and to provide for irrigation and other civilian needs. Iraqs longstanding disputes with Turkey and Syria over utilization of the Tigris and Euphrates rivers raise novel questions concerning authority of the occupant to negotiate and reach durable arrangements on behalf of the people of Iraq.

EDITORIAL: Between ‘Faith’ and ‘Facts’: By What Standards Should We Assess International Criminal Justice?

The traditional vision that international courts and tribunals do ‘good’ or create a better world through law is increasingly under question. International criminal justice started largely as a ‘faith’-based project, but is increasingly criticized in light of its actual record and impact. This essay examines this journey and, in particular, the role of ‘faith’ and ‘fact’ in the treatment and assessment of international criminal courts, through four core themes (‘effectiveness’, ‘fairness’, ‘fact-finding’, and legacy’) addressed in Andre Gides version of the parable of The Return of the Prodigal Son . It argues that, in its ‘homecoming’, international criminal justice would benefit from a greater degree of realism by openly accepting its limitations and embracing its expressivist function. It cautions at the same time against exclusively quantitative understandings of impact, arguing that the power of international courts and tribunals lies not so much in their quantitative record as in their role in setting a moral or legal example or shaping discourse. It concludes that a better match between ‘idealism’ and ‘realism’ requires greater attention to the interplay between ‘international’, ‘domestic’, and ‘local’ responses to conflict, as well as recognition of their legitimate differences.

Yugoslav Territory, United Nations Trusteeship or Sovereign State? Reflections on the Current and Future Legal Status of Kosovo

Security Council Resolution 1244 of 10 June 1999 established a United Nations Interim Administration in Kosovo. The United Nations has thereby assumed exclusive legislative and executive powers over the territory, notwithstanding the fact that the Federal Republic of Yugoslavia still retained title over the territory in question. The present article analyses the current international legal status of Kosovo and the source of United Nations authority to administer the territory, taking into account relevant precedents where international organizations have done so in the past. In addition, the article addresses a number of more specific questions concerning the exercise of direct administering authority by the United Nations and, in particular, the question whether, and if so, to what extent human rights standards are applicable to both the actions of UNMIK and actions undertaken by the international security presence in Kosovo, KFOR. Before outlining a possible scenario for the future, permanent international and constitutional status of Kosovo, two other pertinent questions are also dealt with, i.e. whether UNMIK may represent Kosovo vis-a-vis third states by concluding treaties on behalf of the territory, and whether UNMIK may exercise diplomatic protection with regard to permanent residents of Kosovo.

Perspectives on Katanga : An Introduction

The principle of complementarity is one the cardinal features of the architecture of the Rome Statute. Complementarity provides not only a forum to advocate overlapping competencies and litigate jurisdictional disputes over admissibility (e.g. Articles 17 and 19), but marks the foundation of the Statute as a multidimensional system of justice (e.g. Preamble, Article 1). This topic has been a focus of attention of the Court since its very inception. When taking office, the Prosecutor of the International Criminal Court (ICC), Luis Moreno-Ocampo, qualified complementarity as one of the key factors for the successful operation of the Court, noting that ‘the absence of trials led by [the] Court as a consequence of the regular functioning of national institutions would be a major success’. As of 2003, the Office of the Prosecutor (OTP) has developed guidelines and principles on complementarity in order to clarify its theoretical underpinnings and operational features.