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This chapter critically examines the development of the fine and asset forfeiture measures in both the constituent instruments and case law of international(ised) criminal tribunals since Nuremberg. The chapter demonstrates that such procedures have been underutilised in practice, even though many perpetrators of international crimes were, in fact, solvent. While recognising that the origins of international criminal law were chiefly retributive, in light of the fine and asset forfeiture regimes found in the frameworks of a number of international(ised) criminal tribunals, the chapter contends that the Court's fine and asset forfeiture powers were intended by its founders to constitute a vital part of its reparative mandate. The chapter concludes that fine and asset forfeiture powers cannot be viewed as outer limits of international criminal justice, but must rather be seen as foundational to this project.
International law resides at the confluence of law and politics and though it is guided by judicial judgement, it is particularly sensitive to political whim. Perceived economic interests are key to understanding the political motivations in international decision-making. In the UN model under of the Charter, international criminal law, and more specifically target selection for international criminal prosecutions, has been prejudicially skewed by economic/trade considerations. This chapter argues that target selection by the UN Security Council has historically been latently vetted according to economic considerations, inter alia, in a way that is unjust, and counter-productive to deterrence-based rationales. It further argues that the International Criminal Court, as a treaty-based body, is comparatively immune to most economic influences, at least by degree, and represents a positive evolution in the unbiased dispensation of international criminal justice. In support of this hypothesis this chapter reviews the target selection of UN based prosecutions (ad hoc and hybrid) and compares them to other grave situations not chosen for prosecution to conclude the determinative economic basis of target selection. It further iterates a comparison to ICC prosecutions where the independent court has initiated prosecutions in situations where the UN dared not to tread.
Many of the conflicts that have led to the creation of hybrid tribunals were identity-based conflicts – people who identified as members of one tribe, race, ethnicity, or religion used these distinctions as grounds to attack and persecute another group who often responded in kind. This reality means that the criminal justice processes that take place in the wake of such conflicts must take issues of identity seriously to be effective. This article uses the notion of framing contests to examine different identity-based responses to international justice. Defenders of the tribunals seek to portray them as impartial observers while critics paint them as illegitimate outsiders. Because hybrid tribunals have identity considerations as features built into them, they are better suited to promote their own legitimacy in these framing contests. These features include the personnel they use, the witnesses they call, the strategies their prosecutors deploy, and their local outreach programmes. Each of these tools can be used to frame the tribunal as a legitimate means to promote criminal justice and thereby advance the values of transitional justice.
This chapter discusses the legal competence of the Special Court for Sierra Leone. First, the chapter discusses the personal jurisdiction of the Court and the decision to prosecute the crimes that had already been established as legal norms under international law and domestic Sierra Leonean law. The chapter thereafter examines the origin of each of the prosecutable crimes from prior international tribunals, namely crimes against humanity, war crimes and other serious violations of international humanitarian law, and the debates and difficulties that stemmed from using Sierra Leone’s law as the basis for offenses. Second, it analyzes the temporal jurisdiction of the court, while the civil war lasted nearly a decade the temporal jurisdiction of the Special Court only covered a few years in the last part of a ten-year conflict, leaving a large part of atrocities without any prosecutions. Finally, the chapter addresses the Special Court’s prosecutions of all parties to the Sierra Leone conflict, including the controversial government-funded militia, in an attempt to avoid criticism as another “victors justice” court.
This chapter provides a summary of all the chapters in the book and the key claim that the Special Court for Sierra Leone, as the third ad ho international criminal tribunal, made important jurisprudential contributions that constitute a “legal legacy” that is relevant to the continued development of modern international criminal law.
This chapter begins the examination of the Special Court for Sierra Leone’s jurisprudence in a range of areas. It focused on Article 1(1) of the Special Court for Sierra Leone (SCSL) Statute giving that tribunal competence “to prosecute those who bear the greatest responsibility” for serious crimes committed during the Sierra Leonean conflict. The debate that arose during the SCSL trials was whether this statement constituted a jurisdictional requirement that the prosecution must prove beyond a reasonable doubt or merely a type of guideline for the exercise of prosecutorial discretion. The judges of the court split on this seemingly simple legal question. This chapter unpacks the reasoning of the SCSL. First, the chapter addresses the common ground among the judges and the Court’s ultimate conclusion that “greatest responsibility” implied that leaders, as well as the worst killers, may be prosecuted. Second, it demonstrates why the reasoning of the Appeals Chamber was results-oriented and wrong. Finally, referring to the work of other tribunals with a similar mandate, this chapter identifies the lessons of the Sierra Leone Court on greatest responsibility jurisdiction. It builds on them to offer preliminary recommendations on how the greatest responsibility confusion can be avoided when drafting personal jurisdiction clauses for future ad hoc international penal tribunals.
Chapter eight discusses developments in the apportionment of jurisdiction between arbitrators and courts concerning the validity of contracts containing arbitration clauses, as well as developments pertaining to the severability doctrine and its connection to the U.S. common law on adjudicating challenges to the arbitral tribunal’s jurisdiction. The issue of orthodox and U.S. common law arbitrability as a gateway issue also is reviewed.
The author looks at the ‘inherent powers’ of the WTO Appellate Body (AB) and ICSID tribunals. She argues that the key to the exercise of the international judicial function is the principle of inherent powers, which are conferred upon judicial bodies to safeguard the judicial function. Yet, for the WTO Appellate Body and ICSID tribunals , it is often assumed that while ICSID tribunals have broad inherent powers, the AB’s inherent powers are restricted. She asks the question whether this means that these tribunals are fragmented in the exercise of their judicial function, and consequently their inherent powers, and if so, what factors contribute to such fragmentation. This chapter answers the above questions by examining the way the AB and ICSID tribunals perceive their authority to exercise inherent powers through the examples of objections to admissibility of a case and amicus curiae submissions. Using these examples, this chapter challenges absolutist assumptions about the inherent powers of the AB and ICSID tribunals. Instead, it develops a nuanced understanding of the scope of the inherent powers of these tribunals through a study of their respective judicial functions.
The fifth chapter consists of a discussion of the International Bar Association (“IBA”) Rules on the Taking of Evidence in International Arbitration, with reference to the Rules of Arbitration of the International Chamber of Commerce, the Rules of the International Center for Dispute Resolution, and the Rules of the London Court of International Arbitration. This section culminates with a synthesis of international arbitration rules analyzed through the prism of party-autonomy and some of the more salient features comprising the very fabric of the common law. Chapter five as well explores the “Prague Rules.”
Consists of a historical analysis of international commercial arbitration in the United States. It traces the origins of international commercial arbitration to the arbitration agreements that follow the 1687 enactment of the Statute of Fines and Penalties in England, and also references the Act of 1854 in England that vested courts with the discretion to stay a legal proceeding in deference to arbitration agreements. This chapter also documents early U.S. common law authority that was antagonistic to arbitration generally. This introduction in abbreviated manner reviews landmark Supreme Court decisions that most descriptively represent the development of international arbitration and arbitration generally as standing in pari materia with judicial proceedings.
International criminal justice began with efforts to prosecute Germans, including the former Emperor Wilhelm II, following the First World War. The first international trials took place at Nuremberg and Tokyo in the aftermath of the Second World War. In the early 1990s, the United Nations International law Commission submitted a draft statute for an international criminal court to the General Assembly. Subsequent work under the aegis of the Assembly culminated in the 1998 Rome Conference and adoption of the Rome Statute of the International Criminal Court. It entered into force in 2002. Meanwhile, several temporary international criminal tribunals were set up for situations in the former Yugoslavia, Rwanda, and Sierra Leone.
Chapter six primarily focuses on the development and application of the common law doctrine of Manifest Disregard of the Law, and perhaps on its very disappearance. It undertakes this discussion, however, through paradigms exploring methodologies for possibly avoiding 28 U.S.C. §1782.
The author introduces the term ‘judicial engagement’ to conceptualize the interaction between different international courts. Judicial engagement occupies a large middle ground on the continuum between resistance and convergence, highlighting the willingness of the participating adjudicators to consider external sources in the appropriate case, denoting commitments to judicial deliberation but being open to the outcome of either harmony or dissonance. This chapter focuses on two specific research questions. Firstly, it searches for the normative grounds for this adjudicative behaviour, identifying the elements that support it, as well as those that render ‘cross-judging’ impossible. The second question to be answered is the possible function and contribution of engagement between trade and investment tribunals. The ultimate enquiry concerns whether we should or should not promote this adjudicative behaviour. If so, what would its benefits be? The discussion in this regard will look into the possible function of judicial engagement in the light of the legitimacy challenges currently faced, and the role of governance currently performed, by the tribunals involved.
The third chapter reviews the development and current status of the doctrine of arbitrator immunity-liability. Comparative models between the U.S. common law and civil law jurisdictions are discussed. The role of the Supreme Court’s post-Civil War Reconstruction Era opinions are re-examined as part of the effort of exploring the doctrine’s development. It is asserted that post-U.S. Civil War Supreme Court jurisdiction profoundly has influenced the U.S. common law on arbitrator immunity.
Chapter seven explores the issue of “perjury in arbitration.” It discusses the issue through the lenses of a comparative approach to “truth-telling” and “oath-taking” in non-U.S. jurisdictions, and judicial proceedings.
The fourth chapter discusses the role of 28 U.S.C. §1782 in international commercial arbitration. Specifically, “the taking” or “gathering of evidence” is compared and contrasted to common law discovery. Emphasis is placed on the construction of a new paradigm asserting that when submitted to reasoned examination, the taking or the gathering of evidence has failed to generate sufficient timely transparency to contribute to creating appropriate settlement conditions. It is suggested that American common law discovery is configured and organized by many of the very fundamental tenets that international commercial arbitration seeks to preserve and to promote; most notably, party-autonomy and transparency. It also is suggested that arbitral procedural law in the context of “evidence gathering” has undergone a revolutionary transformation such that it shall require continental law practitioners to appreciate narrow and limited fundamental principles of U.S. common law discovery. Chapter four also focuses on the role of party-autonomy in the gathering of evidence, as well as the taking of discovery in international commercial arbitration.
The ninth and final chapter analyzes U.S. arbitration doctrinal developments and their dialogue with the New York Convention. Four discrete issues are reviewed: (i) the relationship between non-signatories to arbitration agreements and their obligation to arbitrate, (ii) jurisdiction over an arbitral award debtor as a predicate to enforcement, (iii) the interjection of forum non conveniens in arbitral enforcement proceedings, and (iv) the tensions between rendering states and secondary enforcing states with respect to annulled international arbitration awards.
The second chapter consists of an analysis of shifting paradigms based on critical exploration of the United States Supreme Court’s strictures in Wilko v. Swan, Scherk v. Alberto-Culver, and Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc. While this particular story has been told and retold, rarely has it been historically contextualized.
This Chapter concerns the formation (genesis) of a treaty. It deals with the substantive and formal elements of a treaty, ie when international obligations emerge through a treaty, when is a treaty a treaty, and who is entitled to bind a State through a treaty. This Chapter examines numerous cases by international courts and tribunals relating to this subject matter. It also analyses the debate ssurrounding memoranda of understanding (MOUs), soft law and modern law-making, such as the Paris Agreement on Climate Change, which comprises hard and soft law obligations. Finally, it looks at the registration of a treaty, ie to what extent, if any at all, it contributes to its formation and identification.
This article argues that the concept of comity plays an important role in making transnational things work – the global market, hyper-politicised situations, the proliferation of international courts and tribunals, and legal harmonisation and coordination across borders. The idea is that comity might not contribute much to the construction of a clean theoretical edifice, one that agrees with binary, Cartesian, logical thinking. True. It might even undermine such a construction. But it helps to just make things work. This indeed is why comity was developed in the first place – that is, to make sovereignty work in the face of the pragmatic transnationalism that characterises so much of real-world life. The article starts with sovereignty – a nice and clean idea in theory that required comity to work well in practice – and then proceeds with a discussion of how comity helps the operations of the transnational things just mentioned.