Abstract: The Lome Peace Agreement of 7 July 1999 officially ended Sierra Leone's eight-year civil war, granted amnesty to the combatants, and provided for the establishment of a Truth and Reconciliation Commission to facilitate the country's healing process. Following renewed fighting, the government of Sierra Leone, with the assistance of the United Nations, established a special tribunal to try the most culpable violators of international humanitarian law and the laws of Sierra Leone. This paper considers the relationship between these two organizations and will compare their legal mandates and jurisdictional scopes. This paper will also examine the admissibility before the Special Court of testimony delivered in a Truth and Reconciliation Commission hearing.

Abstract: Rwanda represents an important test case for the emerging international postconflict agenda. The so-called international community has rarely invested so massively in justice and human rights as part of an attempt to restore peace and promote democracy and reconciliation. These efforts come in the wake of the worst genocide of the late twentieth century, leaving up to 800,000 dead by mid-1994. (1) Of course, good intentions never guaranteed good outcomes, and this is especially true for a society as destroyed, divided, suspicious, poor, and traumatized as Rwanda's. In this article we analyze the local politics and perceptions of postgenocide justice in Rwanda and the relationship of justice to peace, democracy, and reconciliation. There are currently three types of efforts to deal with the perpetrators of genocide in Rwanda, and all receive significant international support: the International Criminal Tribunal for Rwanda (ICTR), the formal domestic justice system, and gacaca. We present the aims of the international community for each type and juxtapose these with the internal politics within Rwanda. We argue that the first two Western-inspired systems of justice have proven incapable of addressing the needs of Rwanda. The third system, gacaca, offers a promising alternative to achieve not only justice, but reconciliation and grassroots empowerment as well. This promise, however, also poses risks. The International Criminal Tribunal for Rwanda The ICTR--whose full name is the International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan Citizens Responsible for Genocide and Other Such Violations Committed in the Territory of Neighboring States Between 1 January 1994 and 31 December 1994--is the product of the international community; it is fully managed and funded by it and exists to no small extent over the objections of the government of Rwanda. The language of the 1994 UN Security Council Resolution 955 authorizing the ICTR refers to its aim "to contribute to the process of national reconciliation and to the restoration and maintenance of peace, . . .contribute to ensuring that such violations are halted and effectively redressed, . . . strengthen the courts and judicial system of Rwanda, having regard in particular to the necessity for those courts to deal with large numbers of suspects." However, the ICTR's prime function is widely perceived to be the reaffirmation of the international community's own morality. The ICTR is not a form of deterrence--it will take a lot more than nine persons convicted in eight years to deter future bloodshed in the region--nor does it impact on dynamics of reconciliation or lighten the burden on the Rwandan justice system. Rather, it is about symbolic politics: we, the international community, do care about Rwanda, are outraged by it, and solemnly pledge to show our disapproval. This move was necessary in the light of the total inaction of that same community during the genocide, which was widely perceived as shameful. The record of the ICTR is mixed. Legally, some of its work was groundbreaking. The court's 1998 verdict of Jean-Paul Akayesu was the first-ever conviction by an international court for the crime of genocide. In 1999, the first confession of genocide was registered, by Jean Kambanda, Rwanda's interim prime minister. In addition, for the first time, an individual was convicted of rape as a crime against humanity. On the negative side, the ICTR is mainly famous for its bureaucratic inefficiency and political infighting (partly changed now) and the slowness of its work. Indeed, in more than seven years, the tribunal has produced remarkably little: by early 2002, with 800 employees and after having spent approximately U.S.$540 million, it had handed down eight convictions and one acquittal, with seven trials for seventeen accused in progress, two appeals pending, and fifty-five suspects in the tribunal's custody. …

Abstract: The Statute of the permanent International Criminal Court (the "ICC") agreed to in Rome in 1998 contains many provisions that deal with the specific concerns and rights of victims and survivors of the international crimes that the ICC will have jurisdiction over. It consolidates the work of the two ad hoc international criminal Tribunals (the former Yugoslavia and Rwanda) in this area, but also further enhances the role and rights of victims in a number of innovative ways. These three international criminal Tribunals thus collectively represent an important step forward in the recognition of the suffering and the position of victims and survivors of international crimes. This article will examine three main issues in relation to victims and the ICC. First, after identifying the protective measures for victims allowed at the discretion of the international criminal Tribunal for the former Yugoslavia, it will focus on the most controversial measure (which the ICC can also order) - the non-disclosure to the defence of the identity of witnesses. Does this protective measure violate a defendant's right to a fair trial? The Statute of the ICC also allows, for the first time in international criminal justice, for the right of victims to obtain their own legal representation, subject to the discretion of the ICC. The second issue is how is this going to work in practice in light of the fact that international crimes normally involve hundreds, if not thousands or even tens of thousands, of victims? And finally, while the ICC Statute provides for the possibility of reparations to victims, where will the money come from, and thus what are the chances of victims actually being able to receive compensation?

Abstract: (2003). International justice and domestic politics: post-Tudjman Croatia and the international criminal tribunal for the former Yugoslavia. Europe-Asia Studies: Vol. 55, No. 7, pp. 1117-1142.

Abstract: This work focuses particularly on the international and criminal law developments that have taken place in the practice and procedure of the International Criminal Tribunal for the former Yugoslavia (ICTY). It also covers the ad hoc International Criminal Tribunal for Rwanda.

Abstract: Working independently, the co-authors of this article each reached the conclusion that the U.S. District Court's decision concerning attorney fees in Zapata Hermanos Sucesores, S.A. v. Hearthside Baking Co., which was later reversed by the 7th Circuit, was wrong both in result and reasoning. The District Court had held that a party who successfully asserted a claim for breach under the United Nations Convention on Contracts for the International Sale of Goods ("CISG") could recover the costs of attorneys employed in litigating the claim as damages under Article 74 of the CISG. We argue that the CISG was not intended to address the question of recovering attorney fees, most likely because the drafters of the Convention conceived of the issue as a procedural matter outside the scope of the CISG. This is understandable. For example, the 'American rule' on attorneys fees - under which the each party to litigation must bear his or her own attorney expenses, regardless of who prevails in the litigation, unless a contract provision or statute provides specifically for a different result -- is generally understood as a rule of procedure applicable as lex fori. Indeed, as a matter of international practice the rules governing the recovery of attorney fees appear to be regarded as procedural in nature, even when - as is the case in most countries outside the U.S. - they provide for a 'loser-pays' regime that departs sharply from the 'American rule' in substance. As they are understood to fall in the procedural realm, the rules governing the recovery of attorney fees are assumed to be subject to domestic lex fori and not the CISG regime. Although some non-U.S. decisions applying the CISG appear to have interpreted Art. 74 as permitting a prevailing claimant to recover attorney fees as damages, those decisions generally have not approached the issue with the international perspective demanded by Art. 7(1) of the CISG; indeed, upon closer inspection several do not even stand for the proposition that attorney fees incurred during the course of litigation were recoverable as Art. 74 damages. The small number of sometimes-ambiguous and ill-reasoned precedents favouring an award of Art. 74 damages to cover attorney fees, furthermore, fades to virtual insignificance when compared to the vast - nay, overwhelming - majority of CISG decisions in which the recovery of attorney fees has apparently been treated, without comment by the deciding tribunal, exactly as we believe it should be - as a matter governed by the domestic law of the forum.

Abstract: About the Editors. About the Authors. 1. Adversarial or Inquisitorial: Comparing Systems P.J. van Koppen, S.D. Penrod. 2. Adversarial or Inquisitorial: Do we Have a Choice? H.F.M. Crombag. 3. An Empirically Based Comparison of American and European Regulatory Approaches to Police Investigation C. Slobogin. 4. 'We Will Protect Your Wife and Child, but only if You Confess': Police Interrogations in England and the Netherlands A. Vrij. 5. Violence Risk Assessments in American Law J. Monahan. 6. The Dual Nature of Forensic Psychiatric Practice: Risk Assessment and Management under the Dutch TBS-Order C. de Ruiter, M. Hildebrand. 7. The Death Penalty and Adversarial Justice in the United States S.R. Gross. 8. Taking Recovered Memories to Court H. Merckelbach. 9. Adversarial Influences on the Interrogation of Trial Witnesses R.C. Park. 10. Children in Court I.M. Cordon, et al. 11. Identification Evidence in Germany and in the US: Common Sense Assumptions, Empirical Evidence, Guidelines, and Judicial Practices S.L. Sporer, B.L. Cutler. 12. Expert Evidence: The State of the Law in the Netherlands and the United States P.T.C. van Kampen. 13. Expert Witnesses in Europe and America M.J. Saks. 14. The Role of the Forensic Expert in an Inquisitorial System T. Broeders. 15. Psychological Expert Witnesses in Germany and the Netherlands C. Knoernschild, P.J. van Koppen. 16. Preventing Bad Psychological Scientific Evidence in the Netherlands and the United States P.J. vanKoppen, M.J. Saks. 17. Styles of Trial Procedure at the International Criminal Tribunal for the Former Yugoslavia F.J. Pakes. 18. Convergence and Complementarity between Professional Judges and lay Adjudicators S. Seidman Diamond. 19. The Principle of Open Justice in the Netherlands R. Hoekstra, M. Malsch. 20. The John Wayne and Judge Dee Versions of Justice P.J. van Koppen, S.D. Penrod. Legal Citations. References. Index.

Abstract: If corporate law matters to corporate governance and finance, then in order to assess its quality in any given country, one must look at corporate law off the books, i.e., the characteristics of corporate law as applied by judges and other relevant public officials. This paper, after speculating about the interaction between corporate law on the books and corporate law off the books and accounting for recent corporate governance developments in Italy, provides an assessment of Italian corporate law based on analysis of a sample of 106 decisions by the Milan Tribunal, Italy's most specialized court in corporate law. The judges' quality is evaluated by looking at: (1) how deferential they are to corporate insiders; (2) how keen they are to understand, and possibly take into account, the real rights and wrongs underlying the case before them; (3) how antiformalistic their legal reasoning is; (4) how concerned they are about the effects of their decisions on the generality of corporate actors. The analysis casts a negative light on Milanese (and by extension, Italian) corporate law judges. It highlights egregious cases of deference to corporate insiders, especially with regard to parent-subsidiary relationships. Furthermore, only recently, and in any event still sporadically, have at least a few court's opinions been so drafted as to let the reader understand what the real dispute was and which party had really acted opportunistically. In any case, it appears to be rare for the court to take the substantive reasons for the dispute into any account. Cases are described, in which the court has adduced very formalistic arguments. And finally, there is no sign that the judges care about what signals they send to corporate actors: they appear to be quite unconcerned about whether their decisions provide the right incentives for directors and shareholders.

Abstract: Summary: Mental Health Review Tribunals (MHRTs) were established under the Mental Health Act (MHA) 1959 as one of the ‘main safeguards against improper admission under compulsory powers’ and ‘unduly protracted detention’. The statutory provisions were tightened in the 1983 MHA in an attempt to provide a better safeguard for the rights of patients (MHA Commission, 1985). This study set out to examine how MHRTs make decisions about whether or not to discharge patients detained under sections 2 and 3 of the Mental Health Act (1983). The research identified significant differences in operation between tribunals from the pre-hearing meeting through to the deliberation. Such was the degree of variation that questions must be raised about the extent to which tribunals in general can be said to provide a safeguard against unduly protracted detention in hospital. Four factors were found to constrain the fairness of tribunal decision-making. These were: tribunal structures and procedures; the legislation, and in particular the section 72 criteria for discharge; the actual process of decision-making; and training. Since this research was undertaken, a new draft Mental Health Bill has been published. The draft Bill (2002) contains plans for revising the legal framework to take account of changes in mental health services, treatment and patterns of care. The reforms propose a new Mental Health Tribunal with a new remit and composition. While the overarching framework within which tribunals operate will change, the task of the tribunal remains to decide, on the basis of evidence put to it, whether the conditions for continuing care and treatment under compulsory powers are met. Whether the tribunal conducts its business through an oral hearing or through a paper-based exercise, the same challenges as those identified in this study arise in relation to decision-making.

Abstract: ACROSS WAR-TORN IRAQ, IRAQIS HAVE BEGUN TO REveal the horrors of nearly a quarter century of repressive rule. Former political prisoners have led journalists and human rights investigators to prisons where torture and summary executions reportedly were routine. Municipal grave diggers, shepherds, and farmers have publicly disclosed the whereabouts of mass graves believed to hold the bodies of those who disappeared during the rule of Saddam Hussein. Lacking adequate forensic expertise and in the absence of international assistance, Iraqis have been exhuming some of these graves in a manner that prevents forensic identification of most of the remains and possibly brings greater mental anguish to the relatives of the deceased. For example, in May 2003, at 2 sites located near the Mahawil military base just north of the southern Iraqi city of Hilla, villagers used a backhoe to dig up more than 2000 sets of remains, gouging and comingling countless skeletons in the process, while some families used their hands to dig for bones and shards of clothing and carted them away in wheelbarrows and buckets. Clearly, the numerous infrastructure, public health, safety, and security needs of Iraq require immediate attention; however, addressing the fate of missing persons will be an important aspect of the long-term restoration of the health and well-being of Iraqis. In this context, coordinated forensic, psychosocial, and logistical support for the Iraqi people may help enable the remains of some of the missing to be exhumed and identified in a humanitarian, scientific, and judicial manner. However, at the time of this writing, US and other coalition authorities have not implemented a plan to help Iraqis recover the remains of their relatives in a dignified manner and to preserve evidence that might convict those responsible for these crimes. Although this may be understandable given the current dire situation in Iraq (ie, ongoing conflict and security threats, infrastructure and public health demands, and the need to prioritize resources), it stands in contrast with the role played by the United States during and after the recent wars in the former Yugoslavia. For example, in 1993, before the conflict in Croatia and Bosnia had ended, the United States had funded and donated field equipment to forensic teams investigating mass graves in those countries under the auspices of the UN Commission of Experts and its successor, the International Criminal Tribunal for the Former Yugoslavia. Similarly, after the war in Kosovo, the United States dispatched a team of forensic scientists to the region to investigate graves associated with the purge of ethnic Albanians in the spring of 1999. These forensic investigations were used by the International Criminal Tribunal for the Former Yugoslavia in indictments of war criminals in the former Yugoslavia. The grim spectacle at the Hilla burial pits in Iraq and protests of international human rights organizations prompted the US Office of Reconstruction and Humanitarian Assistance (ORHA) to take action. In late May 2003, the ORHA (which has since been folded into the Coalition Provisional Authority) announced that it would take measures to secure grave sites, launch a media campaign to explain to the public the necessity of preserving grave sites, and request governments to send forensic teams to Iraq to exhume graves prioritized for forensic investigation. In the meantime, several nongovernmental organizations have become involved. At the onset of the war, 2 USbased human rights organizations, Human Rights Watch and Physicians for Human Rights, sent 10 researchers, including 1 of us (E.S.), to the region to investigate possible violations of international humanitarian and human rights law committed by all sides of the conflict. In June, 2 of us (W.D.H. and M.S.) traveled to Iraq on behalf of Physicians for Human Rights to assess local capacities for dealing with the search for missing persons. In addition, a British-based group, the International Forensic Center of Excellence for the

Abstract: In October 1945, as he awaited trial as a major war criminal, Robert Ley wrote a long and cogent repudiation of the right of the recently victorious Allies to try German leaders for war crimes. The Indictment served on Ley, and others, on 19 October 1945 claimed that ‘[a]ll the defendants … formulated and executed a common plan or conspiracy to commit Crimes against Humanity as defined’. Ley continued: ‘Where is this plan? Show it to me. Where is the protocol or the fact that only those here accused met and said a single word about what the indictment refers to so monstrously? Not a thing of it is true.’ A few days later, Ley committed suicide in his cell rather than face the shame of a public trial. The unease about the legal basis of the trial was not confined to those who were to stand before it. Legal opinion in Britain and the United States was divided on the right of the victors to bring German leaders before a court for war crimes. The Nuremberg Military Tribunal was, as Ley realised, an experiment, almost an improvisation. For the first time the leaders of a major state were to be arraigned by the international community for conspiring to perpetrate, or causing to be perpetrated, a whole series of crimes against peace and against humanity. For all its evident drawbacks, the trial proved to be the foundation of what has now become a permanent feature of modern international justice.

Abstract: International criminal trials have re-emerged as part of the international diplomacy of intervention in the relationship between states and their populations after widespread atrocities. The establishment of these criminal tribunals represents an attempt to apply human rights law in two situations where states have failed to protect their citizens from extreme violence and atrocity and the successor state has had neither the capacity nor the will to fulfil its obligations to investigate and prosecute gross human rights abuse. The various national crises and state atrocities that occurred during the 1980s and 1990s confronted international legal and political institutions with the problem of how best to intervene to stop human rights abuses and reintroduce the rule of law. These international criminal tribunals have sought to undertake what national courts could not and to provide the institutional groundwork for the establishment of a permanent International Criminal Court (ICC). The International Criminal Tribunal on the Former Yugoslavia (ICTY) and the International Criminal Tribunal on Rwanda (ICTR) were established with the purpose of bringing justice to the victims of mass atrocity that had resulted from the catastrophic failure of their national states to protect them and the likelihood that those states would not prosecute the perpetrators through national trials. In both cases the atrocities involved acts of genocide. In the former Yugoslavia this was referred to as ‘ethnic cleansing’. The establishment of the ICTY and ICTR was part of diplomatic and military intervention in Bosnia and Rwanda respectively to prevent the atrocities continuing, to contain their effects from spilling over into neighbouring countries, to challenge legal impunity through the prosecution of those most responsible, to restore the authority of law and to help promote national reconciliation. The ICTY and ICTR were established in The Hague and Arusha (Tanzania) by UN Security Council Resolutions because these ‘crimes against humanity’ and ‘war crimes’ were seen to be a ‘threat to international peace and security’. 1 They were created with the specific purpose of prosecuting ‘crimes against humanity’ and ‘war crimes’ that had occurred during the wars in the former Yugoslavia and the breakdown of the Arusha (1992) peace accords in Rwanda. The inclusion of the Nuremberg concept of ‘crimes against humanity’ in the articles of both the ICTY and ICTR represented a significant extension of international humanitarian law in internal conflicts. 2 With the break-up of the former Yugoslav Federation the conflicts there became both internal and external whereas in Rwanda the war with the Tutsi-led RPF and the genocide against them took place within the state boundaries. However, even the Rwanda conflict is complicated by the fact that the RPF forces were exiles invading from Uganda.

Abstract: The post-World War Two period has witnessed numerous armed conflicts characterized by extensive violations of relevant obligatory international norms. Responding to these events, the United Nations General Assembly created a per-manent international court in 2003, with jurisdiction over selected international crimes. The International Tribunal for the Former Yugoslavia was a precursor to this permanent court. It was established for the purpose of "prosecuting persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia." As a precedent for what we may expect in the future, it deserves special attention from a historical, politi-cal, and especially an international law point of view. The Prosecution of International Crimes comprehensively examines the creation, mandate, and challenges of the Inter-national Tribunal for the Former Yugoslavia. Derived from a special issue of Criminal Law Forum: An International Journal, a peer-review journal dedicated to the advance-ment of criminal law theory, practice, and reform through-out the world, it is now available in paperback.

Abstract: The compulsory dispute settlement regime included in the 1982 Law of the Sea Convention is recognized as one of the most comprehensive in a modern international convention. Yet, in the recent application of this regime, the question has arisen as to whether the procedural prerequisites associated with the LOS Convention's compulsory dispute settlement mechanism are so arduous as to avoid binding and compulsory jurisdiction in most instances. This article addresses that question by examining, in particular, the reasoning of the Southern Bluefin Tuna arbitration tribunal, which found Article 281 of Section 1 of the LOS Convention to bar jurisdiction to the compulsory dispute settlement mechanism prescribed by the Convention, and offers suggestions as to how states might distinguish or overcome the barriers imposed by the Southern Bluefin Tuna tribunal in future cases.

Abstract: Poetic justice? On April 15, 1998, I saw from the comfort of my Berkeley apartment a photograph of Pol Pot's corpse on television.1 Apparently, the man responsible for the genocide of 1.7 million Cambodians between 1979 and 1979 had just died a natural death. Although I had experienced Pol Pot's atrocities firsthand, I learned his name only in 1979, after Vietnam had overthrown the Khmer Rouge regime, for until then we Cambodians had been obeying the orders not of a man, but of Angka—“the Organization.” Recently, an international tribunal has investigated the crimes committed by Pol Pot and other Khmer Rouge leaders, and trials are currently being conducted in Cambodia. The names of many have come to light, but whether just verdicts will occur is still a question.2 For those of us Cambodians who lived through that bloody era, during which entire families disappeared overnight, these acts of public justice leave us still asking ourselves: What happened? Should we remember or try to forget? If we remember, ...

Abstract: The success of the International Criminal Tribunal of the former Yugoslavia in fulfilling its mandate turns on the justness of the decisions it renders To ensure that its judgements are accepted by the international community as just decisions the Tribunal is directed by the Report of the Secretary-General to adhere fully in its criminal proceedings to internationally recognized human rights standards This directive suggests that the Tribunal should adhere to the interpretation of human rights principles as understood by other jurisdictions However, in some instances the Tribunal has, by virtue of its statutory requirements, been unable to follow those standards as understood by other jurisdictions and it has justifiably adopted a contextual approach to the application of certain human rights principles to its criminal proceedings In other instances, however, the Tribunal has purported to adhere fully to certain human rights principles as adopted by other jurisdictions This has occurred with respect to the Tribunal's adherence to the principle of equality of arms In this instance, however, the Tribunal's purported adherence to that principle has led to a situation where that adherence has had a negative effect on the justness of the decisions it has rendered In the following it is argued that with respect to the application of the principle of equality of arms the Tribunal should adopt a contextual approach if the decisions it renders are to be just decisions and are to have the appearance of being just decisions

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Abstract: The pronouncements of punishment for war crimes, crimes against humanity, and genocide by the International Criminal Tribunal for the former Yugoslavia (ICTY) will be among its most important legacies for international law and international relations. The purpose of our research is to examine the judges' opinions on the determinants of punishment and, most especially, the data on sentences handed down by the trial chambers in order to understand which factors are the most powerful in explaining sentences. We find that there is a fair degree of consistency in the sentences conferred on the guilty. By systematically examining all the sentences both doctrinally and empirically we can see that sentences are premised on those critical factors that the judges are admonished to employ by the ICTY Statute and their own Rules of Procedure and Evidence.

Abstract: The quest of extending the role of tribunals beyond its traditional mission of justice to embrace the difficult need of reconciliation after mass atrocities has revealed itself to be challenging. This difficulty is most clearly illustrated in the case of the ICTR, whose mission is to bring about Rwandan reconciliation through justice. The implementation of this mission that was doubted by some members of the Security Council, including the Rwanda itself, at the time of setting up the ICTR is becoming a difficult experiment, with positive results but also with some negative outcomes capable even of undermining the aimed objective of national reconciliation. The problem of co-operation between the Tribunal and Rwanda, the difficulties of circumscribing individual responsibility without condemning the whole community, the problem of singling out and punishing some criminals and leaving the rest unpunished, the abuse of pardon and clemency, and finally the absence of the victim in a criminal process pretending to restore his situation are some of the difficult problems hampering the proclaimed mission of reconciliation assigned to the ICTR. This article is an attempt to analyse these problems and their impact on national reconciliation in Rwanda.

Abstract: The quest of extending the role of tribunals beyond its traditional mission of justice to embrace the difficult need of reconciliation after mass atrocities has revealed itself to be challenging. This difficultyis most clearlyillustratedin the case of the ICTR, whosemissionis to bring about Rwandan reconciliation through justice. The implementation of this mission that was doubted by some members of the Security Council, including the Rwanda itself, at the time of setting up the ICTR is becoming a difficult experiment, with positive results but also with some negative outcomes capable even of undermining the aimed objective of national reconciliation. The problem of co-operation between the Tribunal and Rwanda, the difficulties of circumscribing individual responsibility without condemning the whole community, the problem of singling out and punishing some criminals and leaving the rest unpunished, the abuse of pardon and clemency, and finally the absence of the victim in a criminal process pretending to restore his situationare someof thedifficultproblemshampering theproclaimedmissionof reconciliation assigned to the ICTR. This article is an attempt to analyse these problems and their impact on national reconciliation in Rwanda.

Abstract: This paper will analyse a recent decision of the Australian Refugee Review Tribunal in which a young gay Iranian man was denied refugee status on the basis that he could avoid persecution in Iran by `acting more discreetly' and by leading a less `public' sexual profile. Contrasting this decision with a recent decision of the High Court of Australia in which the `discretionary option' was explicitly rejected by a majority of the Court hearing the case of two gay Bangladeshi men, this paper will highlight that the reasoning used by the Tribunal misunderstands the nature of sexuality-based discrimination and offers a line of reasoning that is central to ensuring the types of inequalities and biases that are at the heart of sexuality-based discrimination and that perpetuate the inequalities which international human rights instruments seek to eradicate. While applauding the High Court's rejection of the `discretionary option' used by the Refugee Review Tribunal, this paper will argue that a much stronger understanding of the sex equality implications of the Tribunal's decisions in this regard is needed if lesbian and gay refugee claimants are to find real protection in Australia. Some have criticised the High Court's latest judgment on lesbian and gay refugees as `interventionist', even `radical'. These critics do so because they fail to recognise what homophobia is and what the demands of equality require of the Court in its interpretation of the Convention Relating to the Status of Refugees. Overall, it will be argued that, applying a sex equality analysis of anti-lesbian and anti-gay discrimination, it is clear that, while the High Court has now recognised the errors of discretion, it has yet to find the voice that true systemic equality demands.

Abstract: The collected papers in ICCA Congress Series no. 11, as reflected in its title, address important contemporary questions in international commercial arbitration. Included are contributions written by participants in the UNCITRAL Working Group on Arbitration and Conciliation on its current work relating to the requirement of a written form for an arbitration agreement, interim measures of protection and the UNCITRAL's Model Law on International Commercial Conciliation. Further contributions give leading practitioners' views on illegality in the formation and performance of contracts or in the conduct of the arbitration, addressing questions on how the arbitral tribunal should deal with these vexed issues and how forgery and fraud may be detected. The factors that lead to acceptance by parties of the decisions of arbitrators are dealt with in contributions on the psychological aspects of dispute resolution. The volume concludes with a series of articles on arbitration under investment treaties written by experienced arbitrators and practitioners, with special emphasis on ICSID and NAFTA and the emerging issues of transparency, accountability and review.

Abstract: The 9/11 attacks were not the first operations by foreign terrorists on American soil. In 1942, during World War II, eight Germans landed on our shores bent on sabotage. Caught before they could carry out their missions, under FDR s presidential proclamation they were hauled before a secret military tribunal and found guilty. After the Supreme Court s emergency session upheld the tribunal s authority, six of the men were executed. Louis Fisher chronicles the capture, trial, and punishment of the Nazi saboteurs in order to examine the extent to which procedural rights are suspended in time of war. One of America s leading constitutional scholars, Fisher analyzes the political, legal, and administrative context of the Supreme Court decision Ex parte Quirin (1942), reconstructing a rush to judgment that has striking relevance to current events. Fisher contends that the Germans constitutional right to a civil trial was hijacked by an ill-conceived concentration of power within the presidency, overriding essential checks from the Supreme Court, Congress, and the office of the Judge Advocate General. He reveals that the trials were conducted in secret not to preserve national security but rather to shield the government s chief investigators and sentencing decisions from public scrutiny and criticism. Thus, the FBI s bogus claim to have nabbed the saboteurs entirely on their own was allowed to stand, while the saboteurs death sentences were initially kept hidden from public view. Fisher also takes issue with the Bush administration s mistaken citing of Ex parte Quirin as an apt precedent for trying suspected al Qaeda terrorists. Concisely designed for students and general readers, this newly abridged and updated edition provides a cautionary tale as our nation struggles to balance individual rights and national security, as seen most clearly in the recent Supreme Court decisions relating to Yaser Esam Hamdi, Jose Padilla, and the detainees at Guantanamo."

Abstract: Our faith in the law is rarely tested, since in America, at least, few of us ordinary people ever find ourselves at the extremes, confronting violence and terror But the extremes have a way of creeping up on us, and the unimaginable can quickly and imperceptibly begin to seem routine Millions of ordinary Europeans discovered this in the middle of the last century, and thousands of ordinary Americans discovered it in Vietnam Some Americans are discovering it again today in the mountains and deserts of Afghanistan and Iraq Experientially, there is often no sharp dividing line between "ordinary" life and "ordinary" law, on the one hand, and the extremes, on the other After Stalin, after Pol Pot, after the Balkan Wars and the Rwandan genocide, as well as the countless other smaller-scale conflicts around the globe, this truth should be apparent to us, but most of the time we prefer to forget or deny itWhat the author wants to do in this essay is look closely at one example of law operating at the extreme edge of human behavior and emotion, and see whether it has anything particularly satisfying to offer those people who do find themselves caught in the dark places of the earth -- or any lessons for those of us who have not so far been testedThe example she has in mind involves the first judgment handed down by the International Criminal Tribunal for the Former Yugoslavia (better know as "the Hague Tribunal") It is the story of an ordinary man who found one day that the moral terrain around him had changed beyond recognition It is also, of course, a story about law The case, Prosecutor v Erdemovic, was decided in 1997, but it has received only minimal attention in English-language journals This is probably because, to many observers of the Tribunal, it seemed an unimportant and even disappointing case It involved the wrongs of an obscure young Croatian soldier, not those of a general or a president, and its outcome, to many critics, was hardly a resounding or satisfying victory over the forces of evilNonetheless, it is a fascinating case It addresses a particularly troublesome issue in criminal law: the scope of duress as a defense This issue in turn leads to difficult questions about what law in general can offer us, what it is fair and reasonable to expect of ordinary human beings caught in terrible times, and whether we it is wise to assume a sharp discontinuity between the ordinary and the extreme in life or in law The Erdemovic case can be seen as a parable about the failure of law to live up to its optimistic promise (to protect humans from atrocity or provide guidance to those who wish to prevent atrocity) Alternatively, it can be seen as a parable about law's expressive and redemptive possibilities, even in the face of evil It is these ambiguities that the author wants to explore here

Abstract: Our argument in this paper is that the evidentiary practices and procedures that have been developed by the Australian Refugee Review Tribunal are operating at a routinely low standard. Such practices contribute to decisions that are manifestly unfair and potentially wrong in law. A recent working paper from the Office of the United Nations High Commissioner for Refugees ('the UNHCR') notes that evidentiary questions have been 'largely ignored in the academic literature.'1 Our conclusions are drawn from our detailed study of more than 300 refugee tribunal decisions made in Canada and Australia in response to asylum claims brought by lesbians and gay men. Our overall frame of inquiry in this study considers how the respective tribunals grapple with the issue of identity, the complex cluster of dilemmas around the public/private divide, the inability of many decision-makers to imagine the 'other' who stands before them in these claims, and the way this area of law encodes and reflects homophobic stereotyping.2 In developing these conclusions, and in particular in examining the marked differences we found between the Australian and the Canadian decisions, we found that the role played by evidentiary practices of the respective tribunals was vital. This article focuses upon how evidence is dealt with in the Australian Tribunal. The comparative data from our study forms a back drop to the

Abstract: This contribution is a reply to and a commentary on the article by David A. Colson and Dr. Peggy Hoyle, "Satisfying the Procedural Prerequisites to the Compulsory Dispute Settlement Mechanisms of the 1982 Law of the Sea Convention: Did the Southern Bluefin Tuna Tribunal Get It Right?" 34(1) Ocean Development & International Law 59-82 (2003). Colson and Hoyle took the view that Southern Bluefin Tuna Tribunal did not reach the correct answer. The author's survey of the Southern Bluefin Tuna and the Mox Plant cases, in light of the doctrine of procedural and substantive parallelism between the umbrella UN Law of the Sea Convention and its numerous implementing special treaties covered by Articles 281-282, leads her to conclude that the Southern Bluefin Tuna Arbitral Tribunal did get it right.­

Abstract: The article considers the advantages and disadvantages of trying terrorists before regular US civilian courts, before military tribunals, before courts outside the United States or before an international tribunal While civilian courts have problems with maintaining security and handling classified information, they possess a high degree of legitimacy. Military tribunals can be efficient in some ways, but their constitutional basis is questionable, depending largely on whether there is a 'war' going on. Foreign courts will occasionally have jurisdiction over persons captured in their territory, but some of them follow procedures that discredit them in the eyes of advanced states. The chances of an international criminal tribunal suitable for terrorist cases coming into existence in the near future do not seem good. The article concludes that, in most cases, the regular US courts will be preferable.