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Judicial Creativity at the International Criminal Tribunals

Judicial Creativity at the International Criminal Tribunals

Author: Shane Darcy; Joseph Powederly
Publisher: Oxford University Press
ISBN: 9780199591466
Published In: December 2010
Format: Hardback
Jurisdiction: International ? Disclaimer:
Countri(es) stated herein are used as reference only

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First book to focus on the issues raised by judicial creativity at the International Criminal Tribunals
Comprehensive overview of the ways in which the judges of the Rwanda and Yugoslav Tribunals have contributed to the development of international criminal law
Includes contributions from international judges, practitioners, and academics, providing a wide range of perspectives
As the International Criminal Tribunals for the Former Yugoslavia and Rwanda enter the final phase of their work, it is an appropriate time to reflect on the significant contribution that these unique institutions have made to the development of international criminal law. Judgments issued by the ad hoc Tribunals have served to clarify and elucidate key concepts and principles of international criminal law. On several occasions, this practice and jurisprudence has pushed the progressive development of this dynamic and growing branch of international law. This edited collection examines the specific contribution made by the judges of the Yugoslavia and Rwanda Tribunals to the development of international criminal law in the areas of substantive crimes, criminal liability, defences, general principles, fair trial rights, and procedure. The essays illuminate the law on these topics while pointing to key areas where the Tribunals have advanced the understanding of particular concepts and principles. Several contributions address the theories of interpretation employed by the Tribunals' judges and the challenges presented by judicial creativity in international criminal trials.

As the caseload grows for the International Criminal Court and the international criminal justice project continues to flourish, it is important to take stock of the achievements to date of international criminal bodies. This collection of essays provides a thoughtful analysis by judges, practitioners, and scholars of international criminal law of the profound changes in the field enacted by the judges of the International Criminal Tribunals for Rwanda and the Former Yugoslavia.

Readership: Scholars and students of international criminal law and international dispute settlement; pratictioners appearing before international courts and tribunals.

Shane Darcy and Joe Powderly: Introduction

Part I - Sources of Law and Judicial Interpretation

1: Joseph Powderly: Judicial Interpretation at the ad hoc Tribunals: Method from Chaos?

2: Fabián Raimondo: General Principles of Law, Judicial Creativity and the Development of International Criminal Law

Part II - Definition of Crimes

3: William A. Schabas: Judicial Activism and the Crime of Genocide

4: L.J. van den Herik: Using Custom to Reconceptualize Crimes Against Humanity

5: Shane Darcy: The Reinvention of War Crimes by the International Criminal Tribunals

6: Niamh Hayes: Creating a Definition of Rape in International Law: the Contribution of the International Criminal Tribunals

Part III - Forms of Criminal Liability

7: Robert Cryer: The ad hoc Tribunals and the Law of Command Responsibility: A Quiet Earthquake

8: Mohamed Shahabuddeen: Judicial Creativity and Joint Criminal Enterprise

9: Gideon Boas: Omission Liability at the International Criminal Tribunals - A Case for Reform

Part IV - Defences and Fair Trial Rights

10: Caroline Fournet: The Judicial Development of the Law of Defences by the International Criminal Tribunals

11: Gillian Higgins: The Development of the Right to Self Representation before the International Criminal Tribunals

12: Wayne Jordash & John Coughlan: The Right to be Informed of the Nature and Cause of the Charges: A Potentially Formidable Jurisprudential Legacy

Part V - Procedure

13: Göran Sluiter: Procedural Lawmaking at the International Criminal Tribunals

14: Hakan Friman: Trying Cases at the International Criminal Tribunals in the Absence of the Accused?

15: Fidelma Donlon: The Role of the Judges in the Definition and Implementation of the Completion Strategies of the International Criminal Tribunals;

Edited by Shane Darcy, Lecturer, Irish Centre for Human Rights, National University of Ireland, Galway, and Joseph Powderly, Researcher in International Humanitarian & Criminal Law, T.M.C. Asser Institute, The Netherlands

Dr. Shane Darcy is a lecturer at the Irish Centre for Human Rights, National University of Ireland, Galway He holds a Ph.D and LL.M in international human rights law from the National University of Ireland, Galway and ahs published widely in the fields of international humanitarian law, criminal law and human rights law.

Joseph Powderly is Researcher in International Criminal and Humanitarian Law at the T.M.C. Asser Instituut in The Hague. He is a Ph.D. candidate at the Irish Centre for Human Rights, National University of Ireland, Galway, and is a recipient of a Postgraduate Research Scholarship from Irish Research Council for the Humanities and Social Sciences.

Contributors:

Gideon Boas, Senior Lecturer, Monash University, Australia

John Coughlan, legal consultant, Cambodian Center for Human Rights

Robert Cryer, Professor of International and Criminal Law, University of Birmingham

Fidelma Donlon, Deputy Registrar, Special Court for Sierra Leone

Caroline Fournet, Senior Lecturer, University of Exeter

Håkan Friman, Deputy Director-General, Swedish Ministry of Justice Division for Criminal Cases and International Judicial Cooperation

Niamh Hayes, Ph.D. candidate, Irish Centre for Human Rights

Larissa van den Herik, Associate Professor of Public International Law, Leiden University

Gillian Higgins, barrister, 25 Bedford Row

Wayne Jordash, barrister, Doughty Street Chambers

Fabián Raimondo, Assistant Professor, Maastricht University

William A. Schabas, Professor of Human Rights Law and Director of the Irish Centre for Human Rights

Mohamed Shahabuddeen, former Judge at the International Court of Justice and International Criminal Tribunals for Rwanda and the former Yugoslavia

Göran Sluiter, Professor of International Criminal Law, University of Amsterdam

Patricia M. Wald, former Judge at the International Criminal Tribunal for the former Yugoslavia

"I expect the volume to be widely read. It is bound to be of great interest to practitioners and judges involved in international criminal trials. It will plainly attract significant academic interest. It will also repay study by those who are interested in the role played by judges in general in the development of law in the domestic as well as the international field. In addition it provides insight into the historical role and development, as well as the work in general, of the international criminal tribunals" - Lord Bonomy, Senator of the College of Justice and formerly Judge of the ICTY, Journal of the Law Society of Scotland Online