International Courts and Tribunals Article 38 – Sources of Law international conventions, whether general or particular, establishing rules expressly recognized by the contesting.
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International Courts and Tribunals Article 38 – Sources of Law international conventions, whether general or particular, establishing rules expressly recognized by the contesting states; international custom, as evidence of a general practice accepted as law; the general principles of law recognized by civilized nations; subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law. Introduction to Int’l Courts There is no good index or digest to international legal jurisprudence • There is no concept of stare decisis in international law; therefore courts do not heavily rely on precedent (although they can consult their previous decisions under Article 38 of the ICJ statute on the sources of international law) • The body of case law is substantially smaller than domestic jurisdictions and is therefore more easily located • Best place to locate a citation is through a secondary source – Law journals, ILM, books, etc – Max Planck Encyclopedia Research guides for int’l courts ICJ Research Guide • http://library.lawschool.cornell.edu/WhatWeDo/ ResearchGuides/ICJ.cfm SMU guide to International Criminal Courts • http://library.law.smu.edu/ResearchTools/Research-Guides/International-Law(1)/604-International-Criminal-Courts ASIL guide to International Criminal Law • http://www.asil.org/crim1.cfm UN Documentation Guide for Courts and Tribunals • http://www.un.org/depts/dhl/resguide/specil.htm #trib Where to find cases generally Max Planck World Courts Digest (for ICJ decisions): http://www.mpil.de/ww/en/pub/research/d etails/publications/institute/wcd.cfm Human Rights Case Digest (for ECHR cases): in print and HeinOnline Annotated Leading Cases of International Criminal Tribunals (print) International Legal Materials International Court of Justice (ICJ) http://www.icj-cij.org Established June 1945 by Chapter XIV of the Charter of the United Nations • preceded by the Permanent Court of International Justice (PCJI), which operated under the League of Nations Governed by • • • • Chapter XIV of the Charter of the UN, the Statute of the International Court of Justice, Rules of Practice, and useful Practice Directions adopted since 2001 ICJ Jurisdiction: • All 192 UN members, plus any non-UN members who desire a permanent association with the court and become parties to the ICJ Statute Two types of cases • Contentious cases – Legal disputes arising between states involving questions of international law • Advisory opinions – Under Article 65 of the ICJ Statute, the Court may give an advisory opinion on any legal questions at the request of any body authorized to do so by the Charter ICJ Organization: • 15 judges elected by the UN General Assembly for 9-year terms; election for 5 judges held every 3 years • In practice, all members of the UN Security Council have a judge on the court representing their country Location: • The Hague, Netherlands ICJ publications Official Reporter: • Reports of Judgments, Advisory Opinions and Orders – Available in print and on Lexis and Westlaw The documentation for each case includes the document instituting proceedings, written pleadings, oral arguments, correspondence and other relevant documents. These materials are made public, after the Court has given its final decision, in the series Pleadings, Oral Arguments, Documents in the language of submission (English or French) only Citing ICJ decisions Rule 21.5.1 on page 191 of your Bluebook will provide guidance • Pay particular attention to the citation of online materials, Rule 21.5.1(g) In-class exercise How does a party terminate a treaty? Has there been any case law on this issue? Start with a secondary source—i.e., World Court Digest Best way to search is by browsing the table of contents Locate relevant topic Locate a relevant digest entry and note the ICJ case it comes from If you don’t like this case, you can browse other cases on the topic by clicking “next” Retrieve relevant case from the ICJ website If you have a judgment year, change the list to reflect the date of culmination Be sure you know whether you are looking for a contentious case or an advisory proceeding Locate relevant case—in this example, I found it by judgment date. You could always do a CTRL+F for the country involved as well Click on whichever type of document you are trying to find—i.e., in our example, we are looking for page 37 of the Judgment, so we would click on “Judgments” and then select the first PDF This is an exact copy of what was printed in the official reporter, with the same pagination. It can (and, in my opinion, should) be considered an authentic full-text source. International Tribunal for the Law of the Sea (ITLOS) http://www.itlos.org Established in 1982 by the UN Convention on the Law of the Sea • Did not become operational until August 1996 Governed by: • the UN Convention on the Law of the Sea (UNCLOS) • The ITLOS Statute • “other rules of international law not incompatible with the Convention” ITLOS Jurisdiction: • Disputes between UNCLOS member states that have selected it under Art. 287 of UNCLOS • May also receive cases on the basis of other international agreements Location: • Hamburg, Germany Organization: • 21 judges elected by the members of UNCLOS ITLOS publications Official Reporter: • Reports of Judgments, Advisory Opinions and Orders – Hardly any libraries actually carry this in print, so use the website to locate case law and other documents ITLOS Yearbook (print) • contains information about the organization, functioning, competence, procedure, judicial work, finances and members of the Tribunal in a given year. Included is also a bibliography listing publications on the Tribunal which have come to the attention of the Registry during the reporting period. Full-text source materials are reprinted in annexes Citing ITLOS decisions Rule 21.5.6 on page 196 of the Bluebook gives guidance on citing to ITLOS decisions and materials • Note that it does give permission explicitly in this case to cite to the Tribunal’s official website when print reports are unavailable International Criminal Tribunals Special criminal tribunals created by the UN Security Council acting under Chapter VII of the UN Charter • International Criminal Tribunal for the former Yugoslavia (ICTY) • International Criminal Tribunal for Rwanda (ICTR) • Special Court for Sierra Leone (SCSL) • Serious Crimes Unit of Timor Leste • Extraordinary Chambers in the Courts of Cambodia • Special Court for Lebanon Citing to Criminal Tribunals Follow rule 21.5.7 on page 197 of the Bluebook • Citation format is slightly different than traditional cites, as it relies on the case number and the relevant paragraph as opposed to the volume and page number of a particular case ICTY http://www.icty.org/ Established May 23, 1993 by UN Security Resolution 827/1993 Jurisdiction: • Crimes committed since 1991 in the territory of the former Yugoslovia – Grave breaches of Geneva Conventions of 1949 – violations of the laws of war; – genocide; – crimes against humanity ICTY Organization: • 16 permanent judges and up to 9 ad litem Location: • The Hague, Netherlands Official Languages: • English • French • (unofficial) Serb-Croat ICTY publications Official Reporter; • Judicial Reports (print) – reprint all public indictments as well as the decisions and judgments rendered as of 1994 ICTY website is the best place to find cases and related documents Westlaw: INT-ICTY database ICTY Yearbook (print) • provides information about the work, members (with biographies), jurisdiction, organization, functioning and activities of the Tribunal in a given year. Included is a bibliography which lists publications relating to the Tribunal released during the reporting period ICTR http://www.ictr.org/ Established November 8, 1994 by UN Security Resolution 955/1994 Jurisdiction: • Crimes committed between January 1 and December 1994 in the territory of Rwanda –Genocide; –Crimes against humanity; –Serious violations of the Geneva Convention of 1949 ICTR Organization: • 16 permanent and 18 ad litem judges Location: • Arusha, Tanzania Official Languages: • English • French • (unofficial) Kinyarwanda ICTR publications No official reporter; use website • Unofficial reporter: International Criminal Tribunal for Rwanda Reports of Orders, Decisions and Judgements, 1995-1997 (print) Cases available on Westlaw in the INTICTR database Global War Crimes Tribunal Collection (print) • includes trial transcripts, selected full-text judgments, and other materials. SCSL http://www.sc-sl.org/ Established on August 14, 2000 by UN Security Resolution 1315/2000, and subsequently verified by the Special Court Agreement, signed January 16, 2002 Jurisdiction: • Crimes committed since Nov. 30, 1996 in the territory of Sierra Leone SCSL Organization: • At least 8, and no more than 11 judges Location: • Freetown, Sierra Leone Official Languages: • English • (unofficial) Krio SCSL publications No official reporter; use website Digest of Jurisprudence of the Special Court for Sierra Leone 2003 – 2005 Consolidated Legal Texts for the Special Court for Sierra Leone A print source for case law is volume 9, “The Special Court for Sierra Leone 2003-2004” from the series Annotated Leading Cases of International Criminal Tribunals In-class exercise 2 5 February 2010 – The leader of the Serb Radical Party was today charged with contempt of court by the United Nations war crimes tribunal for the Balkans over allegedly revealing details about protected witnesses in his own trial. • Find this case—who is the accused? [Hint: He’s just been accused of the same thing again today] • What rule of procedure was this motion issued under? • When was this rule last amended? ??? Easiest way to access document is follow the link to the news story: This link will bring you to the full text of the contempt of court order Or, if you want to access not just this document but ALL the documents related to the trial of Šešelj, click on “The Cases” to locate his trial and the related documents You can search for cases in a variety of ways, indicated below Name Case Number Status of Trial Click on “Legal Documents” to access all related documents, including proceedings, orders, and judgments To find out which rule this motion was filed under, pull up the Trial Decision (linked from the News page or found in Legal Documents) To locate Rules of Procedure, return to homepage and select Legal Library Click on link for “Rules of Procedure and Evidence” Always be sure you know which version of the Rules you need— i.e., if your case refers to an earlier revision of the Rules, you will need to consult that version, not the most current version. In our case, Rule 77 is current, so we can select the current Revision Here we see the history of this Rule International Criminal Court (ICC) http://www.icc-cpi.int Established in 1998 by the Rome Statute, entered into force on July 1, 2002 Governed by: • The Rome Statute of the International Criminal Court • Rules of Procedure and Evidence, adopted by the UN General Assembly • Elements of Crimes – specifying the interpretation and application to be given to the crimes that fall under the court’s jurisdiction ICC Jurisdiction: • Permanent and independent court with criminal jurisdiction over persons accused of committing one or more of the four categories of crimes enumerated in the statute: – Genocide – Crimes against humanity – War crimes – aggression • Activities of the court are “complementary” to domestic courts; the ICC exercises its jurisdiction only when national courts are unable or unwilling to bring to justice a person accused of the crimes defined under the statute ICC Organization: • 18 judges elected by the member state parties for 9-year terms Location: • The Hague, Netherlands NOTE: • There are 108 parties that have agreed to be bound by the ICC’s jurisdiction; the US is NOT ONE OF THEM ICC publications Official Reporter: • Official Journal of the International Criminal Court – Electronic version only at the present; no cases have yet been decided on, so further publications may develop as the body of case law develops U.N. Conference of Plenipotentiaries on the Establishment of an International Criminal Court • conference documents including agenda, final document, drafts, letters, and related materials at http://www.un.org/icc/index.htm. ICC – Legal Tools database http://www.legal-tools.org/ Aims to provide a comprehensive research database for all matters related to international criminal law, including international organizations, tribunals, courts, as well as national courts and legislation Excerise # 3 Using the ICC’s Legal Tools database, can you locate a copy of Armenia’s Criminal Procedure Code? • Are they in fact a party to the ICC? Human Rights courts European Court of Human Rights • http://www.echr.coe.int/ • NOTE: this is NOT a European Union court—it is run by the Council of Europe and governed by the European Convention on Human Rights (213 U.N.T.S. 222) Inter-American Court of Human Rights • http://www.corteidh.or.cr • Run by the Organization of American States, governed by the American Convention on Human Rights (1144 U.N.T.S. 123) ECHR Best way to search is by limiting to country and then doing full text for a distinctive term—i.e. “abortion” Use HUDOC to search for case law ECHR Like the other sites mentioned here, the ECHR website contains a wealth of documents, both procedural and analytical ECHR website also contains a yearly subject matter index to cases tried there during that year: • http://cmiskp.echr.coe.int/gentkpss/GenRecent-CLIN-Index.asp Exercise #4 How many cases were tried in the ECHR in 2009 dealing with applicability of Article 8 of the European Convention of Human Rights? • What right does Article 8 protect?