Dov Jacobs

A Samson at the International Criminal Court: The Powers of the Prosecutor at the Pre-Trial Phase

Th e Prosecutor of the International Criminal Court is a central fi gure of current international justice. Given his fundamental role in the choice of situations to investigate and cases to prosecute, he will certainly shape the way the work of the Court will be perceived. In exercising his discretion, the Prosecutor will need to balance the interests of victims and the defence, accommodate the will of States and the pressure from NGOs. This balancing act fi rst takes place at the preliminary phase where the genuineness of the information provided will need to be evaluated. During the formal investigative phase, the OTP needs to carry out its duties independently from a financial and political perspective, while trying to obtain the cooperation of States without which no investigations will be possible, respecting the rights of the defence and the views of the victims, all this under the supervision of the Pre-Trial Chamber. If this Samson at the International Criminal Court pulls on his binds too much, he risks bringing down the temple of international justice.

Waiting for Godot: An Analysis of the Advisory Opinion on Kosovo

The Kosovo Advisory Opinion gave rise to responses that suggest that the Court went too far, or not far enough, depending on one’s perspective. In this article, the authors argue that the Court should either have done nothing or gone all the way. By accepting an inadequately drafted question, the Court was necessarily going to give an inadequate answer. This article adopts a strict approach to the legal nature of the question and considers that the ICJ should have declined its competence, not as an exercise of its discretion, but as a preservation of its core judicial function, which does not include primarily the conduct of non-state entities. Going further, the authors suggest that the Court could have rephrased the question and sought to establish the international responsibility of the United Nations, and, ultimately, of Kosovo, which, it is argued, is in fact implicitly recognized by the Court, both politically and legally.

Sitting on the Wall, Looking in: Some Reflections on the Critique of International Criminal Law

This editorial explores some methodological difficulties that might be faced by the practice of the critique of international criminal law (ICL). It more particularly explores what it might mean to do an ‘internal’ critique of ICL, both on a disciplinary level and an intra-disciplinary level. The editorial also addresses two important issues: (i) the ambiguities of the normative agendas of critical legal scholars; and (ii) the difficulty of dialogue between critical legal scholars and positivists. The editorial concludes with the fact that while disciplinary dialogue might not always be possible, it will always take place on a personal, more complex level, in the Leiden Journal of International Law (LJIL) as elsewhere.

The Importance of Being Earnest: The Timeliness of the Challenge to Admissibility in Katanga

This commentary argues that the Trial Chamber in Katanga adopted an erroneous interpretation of the Statute of the International Criminal Court by limiting the grounds to ne bis in idem on which a challenge to admissibility can be brought after the confirmation of charges. The Trial Chamber held that the ‘commencement of trial’ under Article 19(4) is the moment of the constitution of the Trial Chamber, rather than the making of opening statements. This commentary re-examines the legal reasoning of the Court and advocates a different reading. It also suggests that the Chamber has failed to strike a proper balance between the possibility of making challenges to admissibility and the smooth and efficient working of the proceedings, which compromises the long-term legitimacy of the institution and the interests of justice.

Puzzling Over Amnesties: Defragmenting the Debate for International Criminal Tribunals

Amnesties have been in debate for some time now in international circles.From an international law perspective, it should be pointed out something that is sometimes lost in the vast literature on the topic in international legal discussions: there is virtually no mention of amnesties in international documents. As we will see, in the dense web of human rights and international humanitarian law treaties, there is an explicit mention of amnesties in only one provision: an additional protocol to the Geneva Conventions relating to non-international armed conflict. This is mostly true of international criminal law. Even if some international(ized) tribunals include provisions on amnesties, justified by a particular local situation, the Statute of the International Criminal Court makes no mention of them. This leads to the somewhat peculiar situation that entire theories are constructed on the place of a concept in a legal order that makes hardly any reference to that concept in its constitutive documents. Despite this, or maybe because of this, amnesties have come up in relation to various fields of international law (human rights, international humanitarian law, and international criminal law) and in relation to various concepts of international law (most notably the duty to prosecute). This has created a risk of fragmentation on the issue that might threaten the unity of the concept. To take stock of this fragmented situation, we have chosen not to embark on a general theory on amnesties. Rather, we will try to answer a simple question: how must international criminal tribunals deal with amnesties for international crimes? The advantage of such a specific question is that it will focus the discussion, while still allowing us to draw a picture of the fragmented debate on amnesties in international. The paper aims at defragmenting the debate on amnesties by decomposing the various levels at which it is discussed. First of all it looks at amnesties as perceived in various areas of international law, specifically human rights law and international humanitarian law. It then looks at how different international criminal tribunals have dealt with the question of amnesties. It then considers vertical fragmentation (national courts Vs International courts) and pluridisciplinary fragmentation (perceptions from law, sociology, philosophy and political science). In a final section, the article proposes to see what are the relevant aspects of the debate specifically for international tribunals and suggests that we should move away from issues of legality to consider issues of recognition, which make the debate far more easy to solve. In conclusion is considered the broader question of amnesties in the context of the illusory goal of the unity of the international legal order.

Introduction: Mapping the normative framework for the distribution of shared responsibility

and conceptual musings. Normative choices for distribution can have a concrete impact on the legal frameworks that are set up to address current challenges of international law. This is illustrated in 26 Nollkaemper and Jacobs, ‘Shared Responsibility in International Law: A Conceptual Framework’, n. 7. 27 Some might even argue that as legal scholars this kind of normative positioning would be beyond the scope of our function. See J. d’Aspremont, ‘The Politics of Deformalization in International Law’ (2011) 3(2) GoJIL 503. introduction: mapping the normative framework 7 Downloaded from Cambridge Books Online by IP 145.18.109.182 on Mon Nov 30 12:25:31 GMT 2015. http://dx.doi.org/10.1017/CBO9781316227466.002 Cambridge Books Online

Jumping Hurdles Backwards: The Armenian Genocide and the International Criminal Court

This article discusses whether the ICC could be considered as a possible avenue to address the Armenian genocide. In light of the jurisdictional limits of the Court it is argued that it is unlikely that it will ever be a suitable forum in this respect. Indeed, not only are the alleged perpetrators all deceased, but the ICC does not have retroactive jurisdiction. Moreover, it might be the case that some factual aspects of the events might make the crimes against humanity characterisation more adequate. The article concludes on the necessity to accept the limitations of law, notably criminal law, in addressing past events of such magnitude. Ignorance of these limitations makes the operation of trying to get the ICC to address the issue akin to the impossible task of jumping hurdles backwards.