Double Agents

This chapter demonstrates that in the field of international criminal law decisions of international courts and tribunals have recurrently been challenged before national courts. Since most international criminal courts and tribunals are either organs of international organizations, such as the International Criminal Tribunal for the former Yugoslavia (ICTY) or the International Criminal Tribunal for Rwanda (ICTR), or enjoy the status of an international organization (International Criminal Court), putting their judgments into question amounts to challenging the acts of an international organization. It is against the backdrop of the obligation of States to cooperate with these international tribunals that national courts have often been called upon to address such challenges, mostly in the context of the transfer of a suspect. In these cases, they have faced a dilemma arising out of the need to secure the independent and efficacious functioning of the international tribunal while simultaneously safeguarding domestic fundamental rights.

General principles of international criminal law have been developed mainly for the purposes of international prosecution, either through particular codification efforts or through judicial interpretation by international tribunals. Some of the basic issues and arguments with regard to the scope of and grounds for criminal responsibility under international law were introduced already at the time of the post-World War II trials. Building on the post-World War II jurisprudence, the International Criminal Tribunal for the former Yugoslavia (ICTY) has made use of and further developed theories of collective liability, including command responsibility and the common purpose doctrine, in order to deal with crimes that by definition are committed to enforce a certain policy. Joint criminal enterprise, including its extended form, has become a major tool for the ICTY in addressing the responsibility of high political and military leaders.Keywords: criminal responsibility; ICTY; international criminal law; post-World War II jurisprudence

Artillery has been a staple of siege warfare for centuries as a cheap and effective weapon against area and point targets; however, its legality under the rules of International Humanitarian Law may be changing. The recent Ante Gotovina case at the International Criminal Tribunal for the Former Yugoslavia (ICTY) reflects an evolving line of jurisprudence that could result in a global reassessment of the legal norms for using artillery against targets located in urban areas. Thus far, commentators have criticized the Gotovina trial judgement on the basis that the law should conform to the technical limitations of artillery, but this article proposes that if basic artillery cannot conform to the standards of accuracy required under IHL, then it should not be paired to targets in urban areas. At a minimum, if after a calculation of probable errors of the fall of shot, the margin of error lies outside of that accepted by international tribunals, then a decision to nonetheless engage the urban target may rise to the standard of recklessness and result in possible criminal liability for the commander. In a 3-2 majority decision, the ICTY Appeals Chamber overturned the Trial Chamber decision in Gotovina, but did not articulate what legal standard it applied in doing so. The result muddies the legal waters as it pertains to artillery and exposes a deep divide in the application of the law by international criminal tribunals.

Aiding and abetting has been recognised as a form of individual criminal responsibility since the 1940’s when the first international tribunals were created. The form of responsibility had a relatively simplistic history of application until it faced an unprecedented upheaval through the introduction of the threshold of specific direction in the Perišić appeals judgment. The judgment has since been rejected by the Special Court of Sierra Leone (SCSL) in the Charles Taylor judgment and by the International Criminal Tribunal for Former Yugoslavia (ICTY) in Sainović, Popović and Stanišić and Simatović judgment. The present paper focuses on the relevance of the standard of specific direction before the International Criminal Court (ICC). It argues that the standard is unjustifiable under international criminal law as, firstly, no convictions or acquittals have been affected on the standard and, secondly and more importantly, the text of the Rome Statute has rejected the standard. The standard of specific direction has not legal pedigree under customary law, is contrary to the text of the Rome Statute and counter-intuitive to the objectives of the ICC as it unreasonably increases evidentiary requirements at the Court and consequently makes the fight against impunity, an already challenging task, even more difficult.

Objective. I develop a theory of judicial decision making at the international tribunals regarding the punishment of those who have committed violations of international law. Previous research has found and criticized inconsistent sentencing at the tribunals, but I argue that we can explain such sentences through a theoretical framework that outlines how judges utilize the traditional punishment rationales of retribution and deterrence.Methods. Regression analysis is conducted using original data on the sentences passed on 132 individuals from the International Criminal Tribunal for the Former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR), and the Special Court for Sierra Leone (SCSL).Results. I find significant support for the importance of each of the sentencing rationales.Conclusions. Tribunal judges sentence in a consistent manner premised on domestic and international rationales.

The reentry of sentenced perpetrators of atrocity crimes is part and parcel of the pursuit of international and transitional justice. As men and women sentenced for war crimes, crimes against humanity and genocide by the International Criminal Tribunal for the former Yugoslavia (ICTY) and the other tribunals return from prisons into society and communities questions arise as to the impact their reentry has on deeply divided postconflict societies, in particular on victim groups. Contemporary international tribunals and courts mostly do not have penal or correctional policies of their own, and the legacy of early release, commuting of sentences and amnesties that Nuremberg and other post-World War II tribunals have left, is a particularly problematic one. Germany’s historical experience provides an analytic blueprint for understanding in which ways contemporary perpetrators return into changed and still fragile societies. This comparative analysis between Nuremberg and the ICTY is based on two data sets including information on returning war criminals sentenced in both tribunals. The comparative analysis focuses on four themes: politics of reentry, admission of guilt and justification, memoirs, and political activism.

This article explores the relationship between retributive justice, restorative justice, and reconciliation. Using the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) as case studies, it begins by examining whether international war crimes tribunals, as dispensers of retributive justice, can contribute to reconciliation in post‐conflict societies. According to their supporters, international war crimes criminals can foster reconciliation in three principal ways: by seeing that justice is done; by establishing the truth about crimes committed; and by individualizing guilt. It will be argued that each of these claims is flawed. War crimes tribunals are an important part of the peace‐building process in post‐conflict societies but it is argued that the retributive justice they deliver is not the most effective means to promote reconciliation. The article’s core premise is that restorative justice has the greatest potential to initiate and further reconciliation and should, therefore, complement the administration of retributive justice. To demonstrate the value of restorative justice in practice, it provides some examples of restorative processes in Rwanda and in the former Yugoslavia.

The presented paper discusses the influence of international human rights law on international criminal law. It tries to give an answer to the question of whether rules protecting the accused in international criminal proceedings meet the human rights law standard provided by international declarations and covenants. Meaning, if the proceedings before the International Criminal Tribunal for Former Yugoslavia (ICTY), International Criminal Tribunal for Rwanda (ICTR) and International Criminal Court (ICC) meet the standard provided by international human rights law, in particular the International Covenant on Civil and Political Rights. The paper proves that international human rights law has affected international criminal law tremendously. Moreover, it is argued that the protection of the accused in the law of the international courts and tribunals with regard to his rights has improved when compared to the international human rights law standard. In particular the Rome Statute of the ICC provides the accused with the most comprehensive protection. This is especially visible in the case of such rights as the presumption of innocence, right to an interpreter and right to remain silent. Nevertheless, some shortcomings in the law of the ad hoc tribunals and ICC can be observed, in particular when it comes to identifying the commencement of protection of the accused.

Justice is one of the main components of the process of reconciliation. When materialized in its institutionalized form, justice is achieved through trials, whether to individuals or states. In the case of war in former Yugoslavia apart from the trials to the individuals before International Tribunal for former Yugoslavia, equally important and current issue is the case before International Court of Justice regarding the claim and counter-claim of Croatia and Serbia concerning the crime of genocide. Through the analysis of this judicial proceeding using the concept of change in the conflictive ethos it is shown that it does not per se contribute to the reconciliation. Reasons for that are to be found in the very nature of the judicial proceedings and discrepancies between legal and social norms and understandings of justice. Nevertheless the importance of judicial proceedings is not denied as a structural measure in the reconciliation process therefore suggestions for the overcoming of deficiencies in the contribution of these proceedings to the reconciliation are offered.

This chapter explores the interplay between the International Criminal Court (ICC) and other international judicial bodies, notably the International Court of Justice (ICJ), through the lens of the foundational Nuremberg Principles. Originating from the Nuremberg trial after World War II, these principles presented revolutionary concepts under international law such as individual criminal responsibility, irrelevance of official capacity, and the precedence of international over national law. The analysis examines how these principles were adopted, adapted, or reinterpreted across the statutes and jurisprudence of subsequent international tribunals, including the ad hoc tribunals for Yugoslavia (ICTY) and Rwanda (ICTR), and also the Rome Statute, which established the ICC in 1998. The chapter marks out two key aspects of interplay: a developmental aspect, tracing the historical and legal evolution of the Nuremberg principles into contemporary instruments of international criminal justice; and an actual asspect, analysing the formal and practical application (or omission) of these principles in case law, particularly within ICC proceedings and ICJ advisory opinions. While the ICC does not formally treat the Nuremberg principles as binding legal sources under Article 21 of the Rome Statute, their normative influence remains evident. Special attention is paid to legal concepts such as immunities, complementarity, control over crimes, and fair trial rights, showing how these have been shaped by precedents across tribunals. The chapter also explores how the ICJ, despite focusing on state responsibility, has indirectly influenced ICC interpretations of international law through decisions like the Arrest Warrant and Genocide cases. At last, the chapter argues that the Nuremberg legacy continues to underpin the global criminal justice architecture, shaping the aim of upholding accountability, justice, and the rule of law. The dynamic relationship between courts underscores the interconnectedness of international efforts to prevent impunity and ensure human rights protections.

The pressure on international arbitral tribunals to decide on requests for interim measures in high stakes international arbitration is likely to grow rapidly as the global economy continues to weaken and the number of investment disputes, both before the International Centre for Settlement of Investment Disputes (ICSID) tribunals and ad hoc tribunal proceedings under United Nations Commission on International Trade Law (UNCITRAL) Rules, increases. Although the individual decisions of the tribunals are not binding on one another, it is generally accepted that from these decisions there is the development of a special jurisprudence in investment arbitration. The danger inherent in this situation is that all decisions of all tribunals ‘have in principle equal status as concerns the potential for normative influence’. This influence will only increase as more awards are available for review. Recently, in Sergei Paushok, CJSC Golden East Company and CJSC Vostokneftegaz Company, Claimants v. Government of Mongolia (‘Paushok v. Mongolia’), a 2008 ad hoc investment arbitration conducted under UNCITRAL Rules, the tribunal entered an interim award without reference to any specific authority but nonetheless applied a list of criteria taken from international investment arbitration jurisprudence as a guide to its decision-making. Using Paushok v. Mongolia as a framework, the authors have critically evaluated tribunals’ reliance on what they deem ‘leading authority’ and the reasoning process used. From this analysis, the authors propose standards for tribunals to consider in the application for issuance of interim measures in international investment arbitration under both ICSID and UNCITRAL Rules and discuss how each factor should be analysed, as well as the quantum of proof required for each. At a minimum, the authors hope that their proposed standards provoke discussion on whether there is in actuality a set of internationally recognised standards to be met before a tribunal will issue an order in support of interim measures, and if so what should provide the basis for that standard.

Larry May argues that the best way to understand war crimes is as crimes against humanness rather than as violations of justice. He shows that in a deeply pluralistic world, we need to understand the rules of war as the collective responsibility of states that send their citizens into harm's way, as the embodiment of humanity, and as the chief way for soldiers to retain a sense of honour on the battlefield. Throughout, May demonstrates that the principle of humanness is the cornerstone of international humanitarian law, and is itself the basis of the traditional principles of discrimination, necessity, and proportionality. He draws extensively on the older Just War tradition to assess recent cases from the International Tribunal for Yugoslavia as well as examples of atrocities from the archives of the International Committee of the Red Cross.