Failings of the International Court of Justice critically examines the jurisprudence of the International Court of Justice. Even though the legal instrument that establishes the Court provides that its judgments have no formal precedential value, those judgments are treated as authoritative by international lawyers throughout the world. In this book, A. Mark Weisburd argues that the Court's decisions are, in a large minority of cases, poorly reasoned and doubtful as a matter of law, and therefore ought not to be accorded the deference they receive. The book seeks to demonstrate its thesis by a careful review of the Court's errors. It begins with an examination of the law that created and empowered the Court. It then describes the body of law upon which the Court was intended to base its decisions, and the mistakes in the arguments supporting the Court's drawing legal rules from other sources. The book goes on to analyze in detail cases in which the Court has made serious legal errors, first addressing procedural errors, then turning to mistakes in the application of substantive international law. The book closes with a quantitative summing up of the Court's performance, and a tentative explanation for its relatively disappointing record.

This scholarly legal work focuses on the dilemma of prosecuting gender-based crimes under the statutes of the international criminal tribunals with reference to the principle of fair labelling. In this book Hilmi M. Zawati explains how the abstractness and lack of accurate description of gender-based crimes in the statutory laws of the international criminal tribunals and courts infringe the principle of fair labelling, lead to inconsistent verdicts and punishments, and cause inadequate prosecution of these crimes. This inquiry deals with gender-based crimes as a case study, and with fair labelling as a legal principle and a theoretical framework. Critical and timely, this study contributes to existing scholarship in many different ways. It is the first legal analysis to focus on the dilemma of prosecuting and punishing wartime gender-based crimes in the statutory laws of the international criminal tribunals and the ICC in the context of fair labelling. Moreover, it emphasizes that applying fair labelling to wartime gender-based crimes would enable the tribunals and the ICC to deliver fair judgments, eliminate inconsistent prosecution, overcome shortcomings in addressing gender-based crimes within their jurisprudence, while breaking the cycle of impunity for these crimes. Consisting of two parts, this work begins by outlining the central focus and theoretical legal framework of the study. It concentrates on fair labelling as an imperative legal principle and a legal framework, examines its intellectual development, scope and justification, and illustrates its applicability to gender-based crimes. The second part addresses the dilemma of prosecuting gender-based crimes in the international criminal tribunals.

In recent decades there has been a considerable growth in the activities of international tribunals and the establishment of new tribunals. Furthermore, supervisory bodies established to control compliance with treaty obligations have adopted decisions in an increasing number of cases. National courts further add to the practice of adjudication of claims based on international law. While this increasing practice of courts and supervisory bodies strengthens the adjudicatory process in international law, it also poses challenges to the unity of international law. Most of these courts operate within their own special regime (functional, regional, or national) and will primarily interpret and apply international law within the framework of that particular regime. The role of domestic courts poses special challenges, as the powers of such courts to give effect to international law, as well as their actual practice in applying such law, largely will be determined by national law. At the same time, both international and national courts have recognised that they do not operate in isolation from the larger international legal system, and have found various ways to counteract the process of fragmentation that may result from their jurisdictional limitations. This book explores how international and national courts can, and do, mitigate fragmentation of international law. It contains case studies from international regimes (including the WTO, the IMF, investment arbitration and the ECtHR) and from various national jurisdictions (including Japan, Norway, Switzerland and the UK), providing a basis for conclusions to be drawn in the final chapter.

This book argues that national and international courts seek to enhance their reputations through the strategic exercise of judicial power. Courts often cannot enforce their judgments and must rely on reputational sanctions to ensure compliance. One way to do this is for courts to improve their reputation for generating compliance with their judgments. When the court's reputation is increased, parties will be expected to comply with its judgments and the reputational sanction on a party that fails to comply will be higher. This strategy allows national and international courts, which cannot enforce their judgments against states and executives, to improve the likelihood that their judgments will be complied with over time. This book describes the judicial tactics that courts use to shape their judgments in ways that maximize their reputational gains.

Opportunities to see expert cross-examinations are often infrequent in international arbitration and the occasions to sharpen these skills for many are rare. This book is both an invaluable teaching tool as well as a general guide to effective cross-examination in international arbitration. Based on extensive experience and insight from the authors and aided by practical examples, it provides a thoroughly illustrated analysis of how essential cross-examination techniques can best be adapted to the arbitral format. Concise and well organised, it leads the reader through the different cross-examination techniques in an accessible point by point structure, presenting readers with a clear and authoritative introduction on how best to conduct a cross-examination or a quick-reference for more experienced practitioners. An international arbitration hearing is very different from a trial in a court and any practitioner appearing as counsel, whether common or civil law lawyers, needs to know what will happen and how it will differ in order to adapt their conduct. Hober and Sussman explore the challenges practitioners face when conducting a cross-examination in such an environment and provide practical learning aids to help overcome them. Cross Examination In International Arbitration addresses the common issues that can occur in cross-examination in arbitrations such as adjusting the level of English to consider the competency of the panel's least competent member or how to cross-examine a witness with only the use of a written statement rather than by means of oral direct testimony. By highlighting the common challenges which might arise, the authors present a guide which will benefit those practicing or looking to practice in this field.

As international criminal courts and tribunals have proliferated and international criminal law is increasingly seen as a key tool for bringing the world's worst perpetrators to account, the controversies surrounding the international trials of war criminals have grown. War crimes tribunals have to deal with accusations of victors' justice, bad prosecutorial policy and case management, and of jeopardizing fragile peace in post-conflict situations. In this exceptional book, one of the leading writers in the field of international criminal law explores these controversial issues in a manner that is accessible both to lawyers and to general readers. Professor William Schabas begins by considering the discipline of international criminal law, outlining the differing approaches to the description of international crimes and examining the frequent claims relating to the retroactive application of these crimes. The book then discusses the relationship between genocide and crimes against humanity, studying the fascination with what Schabas calls the 'genocide mystique'. International criminal tribunals have often been stigmatized as an exercise in victors' justice. This book traces how this critique developed and the difficulty it poses to the identification of situations for prosecution by the International Criminal Court. The claim that amnesty for international crimes is prohibited by international law is challenged, with a more nuanced approach to the relationship between justice and peace being proposed. Throughout the book there is a strong historical perspective, with constant reference to the early experiments in international justice at Nuremberg and Tokyo. The work also analyses the growing pains of the International Criminal Court as it enters its second decade.

After successive waves of EU enlargement, and pursuant to the entry into force of the Lisbon Treaty, the European Court of Justice finds itself on the brink of a new era. Both the institution itself and the broader setting within which it operates have become more heterogeneous than ever before. The issues now arriving on its docket are also often of great complexity, covering an unprecedented number of fields. The aims of this volume are to study the impact of these developments, examine the legitimacy of the Court's output in this novel context and provide an appraisal of its overall performance. In doing so, specific attention is paid to its most recent case law on four topics: the general principles of EU law, external relations, the internal market and Union citizenship. Featuring contributions by Maurice Adams, Henri de Waele, Johan Meeusen and Gert Straetmans, Koen Lenaerts, Jan Mazak and Martin Moser, Stephen Weatherill, Jukka Snell, Michael Dougan, Daniel Thym, Eileen Denza, Michal Bobek, and Joseph Weiler.

This is the first comprehensive study of the law governing professional misconduct by defense lawyers before the International Criminal Court (ICC). The ICC's regulatory regime was introduced in response to instances of misconduct experienced by other international and domestic criminal courts. The book first turns to how the ICC's forerunners - the International Criminal Tribunals for the former Yugoslavia and Rwanda, and the Special Court for Sierra Leone - coped with misconduct, often resulting in controversy. It also looks at the approaches which have evolved in Germany and the United States, reflecting the different role of defense lawyers in the civil and common law criminal justice traditions. It offers a unique insight into the professional responsibilities of defense lawyers within the various international and national regimes. Offering practical guidance on disciplinary systems and other sanctioning mechanisms, the book also explores the inherent tension at the heart of the defense lawyer's role: ensuring the human right to a fair trial and therefore anticipating that they will be zealous advocates for their clients, while, at the same time, expecting that they commit themselves as officers of the court. (Series: Studies in International and Comparative Criminal Law - Vol. 11)

Trusteeship and the civilizing mission in international relations did not end with the emergence of the self-determination entitlement that led to decolonization in the second half of the 20th century. International organizations, whose modern form emerged during the height of colonialism, took on the 'civilizing' role in the 'post-colonial' era, internationalizing trusteeship and re-legitimizing it as a feature of international public policy into the bargain. Through analysis of the history of and purposes associated with the involvement of international organizations in territorial administration, such as the UN missions in Kosovo and East Timor, a comparison between this activity and colonial trusteeship, the Mandate and Trusteeship arrangements, and an exploration of the modern ideas of international law and public policy that underpin and legitimize contemporary interventions, this book relates a new history of the concept of international trusteeship.
From British colonialist Lord Lugard's 'dual mandate' to the 'state-building' agenda of the High Representative in Bosnia and Herzegovina, Lord Ashdown, wide-ranging links between the complex peace operations of today and the civilizing mission of the colonial era are established, offering a historical, political, and legal framework within which the legitimacy of, and challenges faced by, complex interventions can be appraised. This new history of international trusteeship raises important questions about the role of international law and organizations in facilitating relations of dominations and tutelage, and suggests that the contemporary significance of the self-determination entitlement needs to be re-evaluated.

The move to end impunity for human rights atrocities has seen the creation of international and hybrid tribunals and increased prosecutions in domestic courts. The Oxford Companion to International Criminal Justice is the first major reference work to provide a complete overview of this emerging field. Its nearly 1100 pages are divided into three sections. In the first part, 21 essays by leading thinkers offer a comprehensive survey of issues and debates surrounding international humanitarian law, international criminal law, and their enforcement. The second part is arranged alphabetically, containing 320 entries on doctrines, procedures, institutions and personalities. The final part contains over 400 case summaries on different trials from international and domestic courts dealing with war crimes, crimes against humanity, genocide, torture, and terrorism. With analysis and commentary on every aspect of international criminal justice, this Companion is designed to be the first port of call for scholars and practitioners interested in current developments in international justice.

This volume presents 20 original essays by political scientists and other judicial scholars on a variety of topics relative to the broad area of judicial politics. One theme of these essays is to explore the ways in which law and politics intertwine in the United States. Secondly, the essays provide insights into how scholars go about studying various judicial politics subjects such as the role of judges, lawyers, and juries in our political system. The essays explore issues at the trial court level, at the intermediate appellate court level, and at the U.S. Supreme Court. The essays look at the role of judges, juries, lawyers, interest groups, and other actors in the American legal system. Some of the essays look at the issues of judicial selection, while others look at how what we learn about the courts in the U.S. can help us better understand courts in other countries. Taken together, the essays reveal the broad range of issues that students of judicial politics will want to understand in order to appreciate the role of courts in our society.

Since the mid-1990s the United Nations and other multilateral organizations have been entrusted with exceptional authority for the administration of war-torn and strife-ridden territories. In Bosnia and Herzegovina, Eastern Slavonia, Kosovo, and East Timor these organizations have assumed responsibility for governance to a degree unprecedented in recent history. These initiatives represent some of the boldest experiments in the management and settlement of intra-state conflict ever attempted by third parties. This book is a study of recent experiences in the international administration of war-torn territories. It examines the nature of these operations - their mandates, structures, and powers - and distinguishes them from kindred historical and contemporary experiences of peacekeeping, trusteeship, and military occupation. It analyses and assesses the effectiveness of international administrations and discusses, in thematic fashion, the key operational and political challenges that arise in the context of these experiences. It also reflects on the policy implications of these experiences, recommending reforms or new approaches to the challenge posed by localized anarchy in a global context. It argues that, despite many of the problems arising from both the design and implementation of international administrations, international administration has generally made a positive contribution to the mitigation of conflict in the territories where they have been established, thus removing or reducing a threat to peace and helping to improve the lives of the vast majority of the territories' inhabitants. This major new work from a leading scholar provides the first comprehensive treatment of recent attempts at international governance of war-torn territories, and will be essential reading for anyone interested in peace-keeping operations and international administration.

The International Criminal Court (ICC) has run into serious problems with its first big case -- the situation in northern Uganda. There is no doubt that appalling crimes have occurred here. Over a million people have been forced to live in overcrowded displacement camps under the control of the Ugandan army. Joseph Kony's Lord's Resistance Army has abducted thousands, many of them children and has systematically tortured, raped, maimed and killed. Nevertheless, the ICC has confronted outright hostility from a wide range of groups, including traditional leaders, representatives of the Christian Churches and non-governmental organizations. Even the Ugandan government, which invited the court to become involved, has been expressing serious reservations. Tim Allen assesses the controversy. While recognizing the difficulties involved, he shows that much of the antipathy towards the ICC's intervention is misplaced. He also draws out important wider implications of what has happened. Criminal justice sets limits to compromise and undermines established procedures of negotiation with perpetrators of violence. Events in Uganda have far reaching implications for other war zones - and not only in Africa. Amnesties and peace talks may never be quite the same again.

This book takes a procedural approach to human rights guarantees in international criminal proceedings and covers both the systems of the ad hoc Tribunals for the former Yugoslavia and Rwanda and the International Criminal Court. It analyses the rights conferred on individuals involved in international criminal trials from the commencement of investigations to the sentencing stage, as well as the procedural rights of victims and witnesses. The study focuses on problems which have emerged in three main areas: (i) length of proceedings; (ii) absence of specific sanctions and other remedies for violation of procedural rules; (iii) the need to strengthen the protection of the accused from undue interference with his rights (likely to be caused by a variety of factors, such as conflicting governmental interests, the presence of malicious witnesses, or inadequate legal assistance). Three general suggestions are made to reduce the impact of these weaknesses. First, it could be helpful to adopt specific sanctions for violation of procedural rules (such as, the exclusion of evidence as a remedy for violations of rules on discovery). Secondly, (as has already been provided for in the ICC Statute,) the Prosecutor of the ad hoc Tribunals should play a proactive role in the search for the truth by, among other things, gathering evidence that might exonerate the accused. Thirdly, the right of compensation for unlawful arrest (or detention) and unjust conviction, provided for in the ICC Statute, should be extended to other serious violations of fundamental rights and, in addition, should be laid down in the Statutes of the ICTY and ICTR.

In response to the weaknesses of international tribunals and domestic courts in the prosecution of crimes such as genocide, crimes against humanity and war crimes, a new generation of "internationalized" criminal courts has been established. This book addresses three active and one putative jurisdiction of this kind in East Timor, Kosovo, Sierra Leone, and Cambodia.

Recent years have witnessed a sharp increase in the number of international courts and tribunals (WTO, NAFTA, ITLOS, ICC, etc.) and greater willingness on the part of states and other international actors to subject themselves to the compulsory jurisdiction of international adjudicative mechanisms. However, because of the uncoordinated nature of these developments, overlaps between the jurisdictional ambits of the different judicial bodies might occur, i.e., the same dispute could fall under the jurisdiction of more than one forum. This raises both theoretical and practical issues of coordination between the various jurisdictions. The purpose of this book is to explore the implications of jurisdictional competition and to identify standards that may alleviate problems associated with the phenomenon, which arguably threatens the unity of international law. The first part of the book examines the jurisdictional ambits of the principal international courts and tribunals and delineates areas of overlap between their respective jurisdictions. There follows a discussion of some of the potential systematic and practical problems that arise out of jurisdictional competition (such as forum shopping and multiple proceedings) and a consideration of the expediency of mitigating them. The book concludes by identifying existing rules of international law, which govern inter-jurisdictional competition, and by considering the desirability of introducing additional norms and arrangements.

Making Law for Families is the result of a workshop organized by Mavis Maclean and held between May 26 and June 2,1999, at the international Institute for the Sociology of Law (IISL) in Onati, Spain. This book analyzes the concept of the family in the context of increasing challenges and questions created by multicultural societies in ever more complicated international and transnational legal contexts. How is the family defined across cultural and national divides? To what extent and under what conditions should any particular state intervene? The collected essays in this volume seek to answer these and other difficult questions through grounded empirical research and insightful appreciation of how political systems function in various countries. An underlying concern is to explore to what extent and under what terms will the family endure in the future as a basic unit of social management and control. This book is part of the Onati International Series in Law and Society.

Making Law for Families is the result of a workshop organized by Mavis Maclean and held between May 26 and June 2,1999, at the international Institute for the Sociology of Law (IISL) in Onati, Spain. This book analyzes the concept of the family in the context of increasing challenges and questions created by multicultural societies in ever more complicated international and transnational legal contexts. How is the family defined across cultural and national divides? To what extent and under what conditions should any particular state intervene? The collected essays in this volume seek to answer these and other difficult questions through grounded empirical research and insightful appreciation of how political systems function in various countries. An underlying concern is to explore to what extent and under what terms will the family endure in the future as a basic unit of social management and control. This book is part of the Onati International Series in Law and Society.

The first comprehensive study of judicial remedies in international law, this book begins with a close examination of the early development of judicial remedies through the varied practice of international arbitral tribunals. Gray then goes on to evaluate the significance of the contributions made by the Permanent Court of International Justice, its successor the International Court of Justice, and specialized tribunals such as the European and American courts of human rights and the United Nations administrative tribunal. The author finally considers whether recent international commercial arbitration offers a new approach to the question of judicial remedies.

With the acceptance of international criminal procedure as a self-sustaining discipline and as the tribunals established to try the most serious crimes in the former Yugoslavia, Sierra Leone, and Rwanda have completed or are beginning to wind up their activities, the time is ripe for a critical evaluation of these international criminal tribunals and their legacy. By examining the due process standards embraced by the five contemporary international criminal tribunals, the author draws conclusions about how the right to a fair trial should be interpreted in international criminal law. This volume addresses key conceptual questions on fairness, including: should international criminal tribunals set the highest standards of fairness, or is it sufficient for their practice to be 'just fair enough'? To whom does the right to a fair trial attach, and can actors such as the prosecution and victims be accurately said to benefit from that right? Does fairness require the full realization of a number of guarantees owed to the accused under the statutory frameworks of international criminal tribunals, or should we instead be concerned with the fairness of the trial 'as a whole'? What is the interplay between domestic and international courts on questions of procedural fairness? What are the elements of fairness in international criminal proceedings? And what remedies are available for breaches of fair trial rights? Through an in-depth exploration of the right to a fair trial, the author concludes that international criminal tribunals have a role in setting the highest standards of due process protection in their procedures, and that in so doing, they can have a positive impact on domestic justice systems.

Although international arbitration is a remarkably resilient institution, many unresolved and largely unacknowledged ethical quandaries lurk below the surface. With the expansion of world trade, the pool of parties, counsel, experts and arbitrators has become more numerous and more diverse, such that informal social controls are no longer a sufficient substitute for formal ethical regulation. At the same time, the international arbitration system has veered sharply toward more formal and transparent procedures, meaning that ethical transgressions are bound to become more evident and less tolerable. Despite these clear signals, regulation of various actors in the system-arbitrators, lawyers, experts and arbitral institutions-has not evolved to keep apace of these needs.
Ethics in International Arbitration provides a framework for developing much needed formal ethical rules and a reliable enforcement regime in the international arbitration system. Catherine Rogers accomplishes this goal in three parts. The first Part analyzes the underlying problems caused by the current lack of regulation and reveal how these problems affect modern international arbitration practice. The Second Part proposes a theoretical framework for resolving these conflicts so effective ethical rules can be developed to guide and regulate various participants' conduct, and the third part proposes integrated mechanisms for enforcing ethical rules.

Challenging the classic narrative that sovereign states make the law that constrains them, this book argues that treaties and other sources of international law form only the starting point of legal authority. Interpretation can shift the meaning of texts and, in its own way, make law. In the practice of interpretation actors debate the meaning of the written and customary laws, and so contribute to the making of new law. In such cases it is the actor's semantic authority that is key - the capacity for their interpretation to be accepted and become established as new reference points for legal discourse. The book identifies the practice of interpretation as a significant space for international lawmaking, using the key examples of the UN High Commissioner for Refugees and the Appellate Body of the WTO to show how international institutions are able to shape and develop their constituent instruments by adding layers of interpretation, and moving the terms of discourse. The book applies developments in linguistics to the practice of international legal interpretation, building on semantic pragmatism to overcome traditional explanations of lawmaking and to offer a fresh account of how the practice of interpretation makes international law. It discusses the normative implications that arise from viewing interpretation in this light, and the implications that the importance of semantic changes has for understanding the development of international law. The book tests the potential of international law and its doctrine to respond to semantic change, and ultimately ponders how semantic authority can be justified democratically in a normative pluriverse.

This book analyses the concept of the rule of law in the context of international law, through the case law of the European Court of Human Rights. It investigates how the court has defined and interpreted the notion of the rule of law in its jurisprudence. It places this analysis against a background of more theoretical accounts of the idea of the rule of law, drawing in ideas of political philosophy. It also provides a comparative assessment, demonstrating how the idea of the rule of law has evolved in the UK, France, and Germany. The book argues that at the core of the concept of the rule of law are the notions of legality and judicial safeguards. It states that the Court has developed the requirements of legality, which the work analyses in detail, based on that concept. It assesses the independence of the judiciary as an aspect of the rule of law in the context of the European Convention on Human Rights, and the relationship between the rule of law and the substantive contents of law. The book posits that the rule of law as seen at the Court is not mainly utilised with regard to 'freedom' rights, but is more concerned with procedural rights. It discusses the relationship between the rule of law and the view of the Convention as a constitutional instrument of the European public order, and shows that the rule of law and democracy are inextricably linked in the case law of the Court. Ultimately, the book demonstrates in its analysis of the Court's jurisprudence that the notion of the rule of law is a crucial part of the international legal order.

Until recently, and with a few notable exceptions in the wake of World War II, violations of the laws of war and international humanitarian law were addressed primarily as claims between states. However, this approach has changed radically in the last twenty years, as the international community has increasingly accepted the idea of individual criminal responsibility for violations of international humanitarian law. The International Criminal Tribunals for the former Yugoslavia and Rwanda have played a key role in this transformation and, as the trailblazers for a growing number of new international or hybrid criminal courts, in establishing the field of international criminal justice and encouraging the national prosecution of war crimes. Understanding the Tribunals' origins, their ground-breaking jurisprudence, and how they have addressed critical legal and practical challenges is essential to understanding both the revolution that has occurred over the past twenty years and how international criminal law will change and grow in the years ahead. As a leading scholar on humanitarian law, and President of the International Criminal Tribunal for the former Yugoslavia, Theodor Meron has observed and influenced the development of international criminal law as it has evolved from a mostly academic exercise to a cornerstone of the new international legal order. In this collection of speeches delivered during his first decade on the bench, he offers an insightful overview of the foundations of international criminal law as well as a unique insider's perspective on the challenges faced by international criminal tribunals, their creation of a corpus of substantive and procedural law, and the responsibilities of international jurists. Judge Meron's experience in international criminal justice makes this volume as rewarding for experts as it is for the general public.

As international criminal courts and tribunals have proliferated and international criminal law is increasingly seen as a key tool for bringing the world's worst perpetrators to account, the controversies surrounding the international trials of war criminals have grown. War crimes tribunals have to deal with accusations of victor's justice, bad prosecutorial policy and case management, and of jeopardizing fragile peace in post-conflict situations. In this exceptional book, one of the leading writers in the field of international criminal law explores these controversial issues in a manner that is accessible both to lawyers and to general readers. Professor William Schabas begins by considering the discipline of international criminal law, outlining the differing approaches to the description of international crimes and examining the frequent claims relating to the retroactive application of these crimes. The book then discusses the relationship between genocide and crimes against humanity, studying the fascination with what Schabas calls the 'genocide mystique'. International criminal tribunals have often been stigmatized as an exercise in victor's justice. This book traces how this critique developed and the difficulty it poses to the identification of situations for prosecution by the International Criminal Court. The claim that amnesty for international crimes is prohibited by international law is challenged, with a more nuanced approach to the relationship between justice and peace being proposed. Throughout the book there is a strong historical perspective, with constant reference to the early experiments in international justice at Nuremberg and Tokyo. The work also analyses the growing pains of the International Criminal Court as it enters its second decade.