G. Sluiter

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.

'Chapeau elements' of crimes against humanity in the jurisprudence of the UN ad hoc tribunals

INTRODUCTION Crimes against humanity is the common element in the law and practice of the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR). It is the glue that ties these institutions together in terms of their subject matter jurisdiction. Looking at the judgments of the ICTY, one notices the difficulty in securing convictions for genocide, but crimes against humanity figure prominently in both indictments and convictions, with the exception of a few cases only dealing with war crimes. At the ICTR, genocide is the focus in practically all cases, but each genocide accusation is backed up by crimes against humanity accusations, especially extermination, murder, and persecution; thus the ICTR confirms the (historically) close relationship between both sets of crimes. But the ICTR rarely convicts for war crimes, for the reasons that the prosecution does not tend to include it in the indictment and that in (early) case law, ICTR Trial Chambers found no nexus between genocidal acts and the armed conflict. As far as the Special Court for Sierra Leone (SCSL) is concerned, it has no jurisdiction over genocide, but only over war crimes, crimes against humanity, and a limited set of crimes under Sierra Leonean law. All judgments of that court deal with allegations of both war crimes and crimes against humanity. Thus, the UN ad hoc tribunals truly are crimes against humanity courts and undeniably have in their practice contributed significantly to the definition and understanding of the crime.

Defending the 'undefendable'? Taking judicial notice of genocide

This chapter focuses on the phenomenon of taking judicial notice of adjudicated facts and facts of common knowledge, which is of increasing importance in the practice of the ad hoc Tribunals. It gives a brief outline of the position of the defense in international criminal proceedings. The chapter provides an overview of the practice of judicial notice in international criminal law, as it has developed in the law and practice of the ad hoc Tribunals. At the center of the chapter is a critical analysis of the ICTR Karemera decision, where the appeals chamber took judicial notice of genocide. The taking of judicial notice of adjudicated facts and facts of common knowledge is clearly an invention unique to international criminal tribunals. The most important contemporary international criminal tribunals, the ICTY, ICTR and ICC, are composed of three main organs, the Prosecutor, the judiciary and the Registrar. Keywords:ad hoc Tribunals; genocide; international criminal law; judicial notice; Karemera decision

Credible and authoritative enforcement of state cooperation with the International Criminal Court

1 See icty Prosecutor Brammertz, ‘asp 11 Keynote Speech: Arresting Fugitives from International Justice and Other Aspects of State Cooperation: Insights from icty Experience’, icc, 16 November 2012, available at: www.icc-cpi.int/en_menus/asp/sessions/documentation/11th%20 session/Pages/ASP11-Supporting-documents.aspx (last accessed on 24 February 2015) at 22. Credible and Authoritative Enforcement of State Cooperation with the International Criminal Court

State cooperation in the enforcement of sentences

It is a truism that international criminal tribunals cannot function without cooperation from States. This cooperation has many different dimensions and is subject to legal regimes that may vary per tribunal, per State and per form of cooperation. State cooperation is also required to execute sentences that are imposed by international criminal tribunals. It is a dimension of cooperation and the functioning of international criminal tribunals that does not receive a great deal of attention. This is understandable in the sense that holding international criminal trials does not appear directly dependent upon the regulation of enforcement of sentences; the trial can start and go on, even if there could be uncertainties in respect of the enforcement of sentences. That said, enforcement of sentences is a vital component of any criminal justice system; the authority and credibility of the international criminal justice system are ultimately also dependent on the adequate and fair organization of State cooperation in the enforcement of sentences. The present chapter addresses the question whether cooperation of States in the enforcement of sentences is fair and adequate in the law and practice of international criminal tribunals. A comprehensive answer to this question is not possible in a book chapter. I will therefore have to be selective and concentrate on a number of essential elements of the aforementioned question.

Het internationaal strafprocesrecht : De geboorte van een rechtsgebied

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V International Criminal Court (ICC)

This is the first contribution on the work and progress of the ICC, which occupies an important place in the protection of human rights. Since its establishment at the diplomatic conference in Rome in the summer of 1998, efforts were aimed at turning the paper institution into a functioning court as soon as possible. With three to five cases on the agenda and an ever-expanding institution supported by a growing number of States, we can safely say that the ICC lives up to the expectations in this moment of time. This first overview and analysis of developments is not confined to the last couple of months, but seizes the opportunity to select a number of important general issues since the creation of the Court. As those will exceed the scope of this contribution, a number of them will be dealt with in the present contribution whereas the next two contributions will deal with the remaining points of general interests, this in addition to an overview and analysis of the latest developments. As the Court is not yet producing a significant amount of cases, I have opted at the present stage for offering to the NQHR two contributions a year.