Lec 12 - Comparative Criminal

Lec 12 - Comparative Criminal - ICCIL Lecture Notes: Term 2...

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ICCIL Lecture Notes: Term 2 Lecture 12 ICC Reading: Jain, Journal of International Criminal Justice 6 (2008), 1013 - 1032 Frulli, Journal of International Criminal Justice 6 (2008), 1033 - 1042 1. Internationalised courts are also called hybrid tribunals which is a mixture of international and national elements to form a criminal justice mechanism. 2. Examples of hybrid courts: i. Special court for Sierra Leone ii. Extraordinary Chambers for Cambodia iii. Bosnian War Crimes Chamber iv. Kosovo v. East Timor vi. Lebanon 3. Iraqi High Tribunal had no international judges and was set up by the Coalition Provisional Authority, which is more akin to the victor’s justice Nuremberg model than a hybrid tribunal, or a domestic court ratified by the Iraqi government and Parliament. 4. Lebanon: i. It is the newest tribunal and it has been created by UN Security Council Resolution 1644, using Chapter 7 for maintaining international peace and security. However these negotiations were overtaken by the Israeli attack on Lebanon in summer of 06. ii. UNSC Resolution 1757 under chapter 7 was then used in may 2007 to set up tribunal in the Netherlands. iii. It is to investigate the death of the former prime minister Rafik Hariri. iv. The trials are to take place in the Hague, similar to the Lockerbie trial, the investigation is underway in Beirut and judges have been elected – Cassese is president again. Bosnian War Crimes Court: 1. The proper functioning of the justice system in Bosnia during and immediately after the conflict was severely impaired for a number of reasons. i. Loss of skilled members of the legal profession and judiciary throughout Bosnia ii. Physical destruction iii. Lack of proper equipment or facilities iv. Bias of judges and prosecutors (ethnic divided of the conflict does not disappear post)
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v. Poor case preparation by prosecutors – complex crimes needing to establish chain of custody for evidence for example. vi. Ineffective witness protection mechanisms – particular pertinent in former conflict zones. 2. The situation was compounded by complexities of the legal framework and inappropriate procedural laws, the use of the inquisitorial system which was part of the national system was too suspect to international laws. 3. War Crimes chambers was established in 2005 and the it was set up to enable effective war crimes prosecutions in Bosnia and it was part of an overhaul of the national justice system and attached to the state court. 4. The UN provided much of the funding for this institution, it wouldn’t have existed otherwise. It was part of a transitional justice effort. 5.
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Lec 12 - Comparative Criminal - ICCIL Lecture Notes: Term 2...

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