Role of International Criminal Tribunal
UN acting under Chapter VII – still have HUGE problems getting domestic cooperation with carrying out arrest warrants, producing witness subpoenas, orders for gov’t to produce evidence, access.
Subject-matter – traditional crimes
Nexus to International Human Rights
Official mandate – HUMANITARIAN law, judges regard HR as part of the mandate.
Very little coverage of due process at Nuremberg
Early on, naïve hope that Hague/Geneva Convention and commentaries would supply corpus of international criminal law
Instead, painful slow process of creation USING judicial gloss to int’l humanitarian law norms
Helps develop aspects of int’l HR law that hold INDIVIDUALS accountable
Relationship to Customary International Law
Very respectful of customary int’l law – want to ensure not punish for something not a crime at time of commission (norm against retroactive punishment)
Decide every case to apply not only statute, but customary law
This avoids tricky questions
Nullem crimen sine lege, nulla poena sine lege – no crime w/o law, no punishment w/o law
Constitutional prohibitions on ex post facto laws, rules of judicial construction, Int’l HR treaties rules, etc.
By this point, many of the main issues have been decided. Built up enough precedent.