International Law Outline



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Prosecutor v. Tadic – 1995 (653)

  1. Defendant challenged legitimacy of Tribunal

    1. Court finds that situation in former Yugoslavia was threat to peace

      1. Then, SC has broad discretion to create appropriate remedy

    2. Clearly not under Article 42 – military use

      1. But, perfect under Article 41 – “measures not involving the use of force”

  • International Criminal Tribunal of Rwanda

    1. Why are domestic tribunals less capable of handling cases in situations of gross violations of HR, particularly in states undergoing transition from authoritarian to democratic rule?

      1. Judicial system might have totally inadequate physical resources, not enough trained judges and lawyers

      2. Gov’t in power might use judicial system as weapon against political enemies

      3. Domestic prosecutors might refuse to prosecute/judges might be afraid to hear cases against powerful governmental officials, former official, their supporters

    2. Rwandan “gacaca” – traditional Rwandese method of conflict resolution

      1. Most judges have no legal or HR background

      2. Appointments very political

      3. Appellate process – even more political, less effective when get away from local, community level.

  • Results

    1. Deterrence? – unclear, but some evidence that they might

      1. Effective deterrence requires COMMITMENT, CAPABILITY and CREDIBILITY

        1. Worst part – spotty record of West regarding intervention

    2. Reconciliation? – also unclear

    3. HAVE established principles of individual accountability, and helped limit impunity

  • Relationship with primary UN court ICJ?

    1. Tribunals often cite to ICJ, and they’ve been citing the tribunals

    2. Should be MORE – it enhances everyone’s authority to cite each other, rather than reinvent the wheel each time.

      1. Some ICC judges resist that

      2. Sierra Leone tribunal – frequently citing tribunals

  • International Criminal Law at its best?

    1. Tapping into the legitimacy associated with law

      1. However, RESOURCE limitations

        1. End up focusing on individuals

          1. Obscuring accountability for governments, organizations, senior leaders, non-governmental entities

            1. Non-governmental entities also do not have same pressure to conform to int’l humanitarian law or maintain int’l reputation

        2. Have to focus on DOMESTIC PROSECUTIONS of all war criminals at all times

  • Khmer Rouge in Cambodia

    1. Communist party of Kampuchea (CPK)/Khmer Rouge – overthrew Cambodian government, and replaced with Khmer Republic.

    2. 1975 – renamed country Democratic Kampuchea

      1. Caused deaths of 1.5-1.7M through forced population movements, forced labor, inhumane living conditions, attacks on “enemies” (including ethnic minorities).

      2. Years of low level border war with Vietnam, then ten years civil war (khmer rouge v. Vietnamese former khmer rougers).

    3. 1986 – consideration of ICJ suit against Democratic Kampuchea

      1. Draft accused DK for violations of Geneva Convention and customary int’l HR law

        1. Jurisdiction based on Genocide Convention Article IX (disputes to ICJ) and/or Cambodian acceptance of ICJ jurisdiction

      2. Can agree genocide committed against minority Cham, ethnic Vietnamese, Chinese, Thai, and Buddist monks

        1. What about atrocities against general Cambodian population?

          1. Khmer are “national group” – problem of INTENT.

      3. Problem of Genocide Convention – mass killing of one segment of a group by another segment of that same group

    4. 1991 – everyone agreed to peace agreement.

      1. NO ONE PRESSES CHARGES

        1. “peace before justice” again.

  • Session 19 – International Criminal Court (Individual International Rights, Part Five)

    1. International Criminal Court

      1. 70% of world lives in countries not covered by ICC jurisdiction

        1. Even those who participate, fail to cooperate fully (i.e. South Africa)

        2. CRITICISM – Court for AFRICA.

          1. Majority of countries we’re concerned with have signed

          2. Exception – SUDAN. Before court through SC.

      2. But better because no temporal or geographical restraints ala the ad hoc tribunals

      3. May not issue many indictments, but effect might be useful if threat of ICC prosecution can be deterrent

    2. Establishment of ICC

      1. Intended to establish post-Nuremberg

        1. Gave job to International Law Commission to develop standards – codify and progressively develop int’l law

        2. Finally, shamed in the 90s into putting proposal for standing body to community

      2. Issues during Negotiation

        1. Consent to jurisdiction?

        2. Who can initiate investigation/prosecution?

          1. States party to Statute? Security Council? Court’s Prosecutor?

        3. How does Court operate in face of domestic proceedings over same facts/


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