Implementing International Humanitarian Law: From the Ad Hoc Tribunals to a Permanent International Criminal Court

Implementing International Humanitarian Law: From the Ad Hoc Tribunals to a Permanent International Criminal Court

Implementing International Humanitarian Law: From the Ad Hoc Tribunals to a Permanent International Criminal Court

Implementing International Humanitarian Law: From the Ad Hoc Tribunals to a Permanent International Criminal Court

Synopsis

An examination of the international humanitarian law rules and their application by the ad hoc tribunals, Yusuf Aksar's study is based upon a doctoral thesis that analysed how the rules related to the substantive laws of the ICTY and the ICTR up to November 2002.

Excerpt

Few topics have so rapidly seized the imagination of legal communities-both at a national and international level-as has the emergence of a coherent body of international criminal law during the last ten years. This, moreover, has been matched by a near unprecedented level of more general public interest and public support. Since the Nuremberg and Tokyo trials following the ending of the Second World War, the desire to see those individuals responsible for serious violations of international humanitarian law in times of war has been tempered by the suspicion that the fora available for trying such cases were themselves lacking in legitimacy, being the creation of those states victorious in combat and exercising their jurisdiction only over the defeated. Perhaps surprisingly, it was not until the early 1990s that the creation of international tribunals was again utilised as a means of bringing to account those accused of crimes that attract individual criminal responsibility under international law. Crucially, they derived their legitimacy not from the whim of those victorious in combat, but from the will of the international community operating within the framework of the UN Charter. The ad hoc Tribunals for the Former Yugoslavia and Rwanda proved to be more than a temporary return to the past: they proved to be harbingers of a new era in international criminal justice, which reached its apogee with the adoption of the Rome Statute of the International Criminal Court in 1998, and its subsequent entry into force.

As this book goes to press, the first Judges of the ICC have just been elected by the States parties. Those elected include persons who already have served as Judges of the ad hoc tribunals. Similarly, the seat of the ICC at The Hague places it in close proximity to the ICTY. All this merely serves to reinforce the nexus between the Tribunals and the Court. Obviously, the experience of the ad hoc tribunals has already played a major role in the shaping of the ICC and the nature of the crimes over which it exercises jurisdiction. Unsurprisingly too, the jurisprudence of the ad hoc tribunals has helped shape the understanding of the various elements of the offences that fall within their respective jurisdictions. But how?

Much already been written about the ad hoc tribunals and, indeed, the ICC itself. However, much of this writing focuses upon the historical background to their creation, their drafting and prognoses of their general significance in international law. The actual jurisprudence of the ad hoc tribunals has received surprisingly little scrutiny in comparison. The purpose of this work is to address that gap and, moreover, relate that body of work to the ICC; tracing its impact upon its Statute and the extent to which it can usefully inform the substantive work of the ICC as it comes into being.

This is, then, an exceedingly timely publication. Dr Aksar subjects the jurisprudence of the ad hoc tribunals to detailed scrutiny, teasing out the lessons that it provides. It is a work of considerable legal sophistication, yet presented in as clear a narrative format as the nature of the complex legal

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