Abstract: Acknowledgements 1. Introduction 2. International Peace and Security, International Criminal Justice and the Yugoslav War 3. Establishing a Court: 'A Mammouth Task' 4. Jurisdiction: 'Beyond Any Doubt'? 5. Procedure: 'Justice Must Not Only Be Done, But Must Be Seen To Be Done' 6. Co-operation and Judicial Assistance: The Tribunal's 'Artificial Limbs' 7. Obtaining Custody of Accused 8. An Apolitical or a Political Institution? The Exercise of Prosecutorial Discretion 9. Conclusion Bibliography

Abstract: Some international tribunals, such as the Iran-U.S. claims tribunal and the trade dispute panels set up under GATT, are "dependent" in the sense that the judges are appointed by the state parties for the purpose of resolving a particular dispute. If the judges do not please the state parties, they will not be used again. Other international tribunals, such as the International Court of Justice, the Inter-American Court of Human Rights, and the new International Criminal Court, are "independent" in the sense that the judges are appointed in advance of any particular dispute and serve fixed terms. The conventional wisdom, which is based mainly on the European experience, is that independent tribunals are more effective at resolving disputes than dependent tribunals are. We argue that the evidence does not support this view. We also argue that the evidence is more consistent with the contrary thesis: the most successful tribunals are dependent. However, selection effects and other methodological problems render a firm conclusion impossible. We support our argument through an examination of qualitative and quantitative evidence, and we argue that the European Court of Justice is not a good model for international tribunals because it owes its success to the high level of political and economic unification among European states. We conclude with pessimistic predictions about the International Criminal Court, the International Tribunal for the Law of the Sea, and the WTO dispute resolution mechanism, the newest international tribunals.

Abstract: This book contains papers presented at a high-level conference that was jointly organized by the Institute of Global Law, University College London and the Institute of International Law, Queen Mary, University of London. The chapters cover issues of State Responsibility before the following international judicial institutions: the International Court of Justice, The International Tribunal for the Law of the Sea, the World Trade Organization, United Nations Compensation Commission, International Centre for the Settlement of Investment Disputes, and International & Regional Human Rights Courts. Contributors include: H.E. Judge Dame Rosalyn Higgins D.B.E., Q.C., Emeritus Professor Ian Brownlie C.B.E.,Q.C., Professor Malcolm Shaw Q.C., Professor Maurice Mendelson Q.C., Professor Christopher Greenwood C.M.G., Q.C., Professor Guy Goodwin-Gill, Dr Matthew Craven, H.E. Judge Benedetto Conforti, Professor Malcolm Evans, Professor Dominic McGoldrick, Professor Gerhard Loibl and Dr Olufemi Elias.

Abstract: Recent years have seen dramatic growth in the number of international tribunals at work across the globe, from the Appellate Body of the World Trade Organization and the International Tribunal for the Law of the Sea, to the Claims Resolution Tribunal for Dormant Claims in Switzerland and the International Criminal Court. With this development has come both increased opportunity for interaction between national and international courts and increased occasion for conflict. Such friction was evident in the recent decision in Loewen Group, Inc. v. United States, in which an arbitral panel constituted under the North American Free Trade Agreement found a Mississippi jury trial to have been the antithesis of due process. Much of the interaction of courts across national borders - including the citation of foreign legal authority, transnational coordination of complex litigation, and the enforcement of foreign judgments - has been analyzed through the metaphor of dialogue. As suggested by the Loewen case, however, there is a growing pattern of interaction between international tribunals and national courts for which dialogue is an ill-suited analogy. Contrary to conventional expectations of incapacity and restraint in international adjudication, recent interactions between international tribunals and domestic courts incorporate a significant dimension of review in both the literal and figurative sense. Although such review is not appellate in nature, it shares with appellate review some potential to effectuate its mandate without the consent of the court subject to review. This dimension of power further distinguishes emerging cases of international review from transnational dialogue. Standing between the hierarchy of appellate review and the comity of judicial dialogue, such international engagement with national courts represents a distinct pattern of judicial interaction, one I develop and detail as dialectical review. Defined broadly as a hybrid of appellate review and dialogue, the nature of dialectical review can be elaborated by examining other hybrid judicial interactions - federal habeas review of state criminal convictions and appellate courts' use of dicta as a signaling device to lower courts. In each of these cases, a form of dialectical review serves as a mechanism of legal innovation. In the face of accelerating trends of globalization, a pattern of dialectical review among international and national courts can help to facilitate the emergence, evolution, and internalization of universal norms of due process. The present analysis thus offers international and domestic judges as well as policymakers a framework for understanding and facilitating beneficial judicial interaction in an ever-shrinking world.

Abstract: In the decade since their establishment, the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) have made great advancements in the development of international criminal justice. Nonetheless, the ad hoc tribunals have been roundly criticized for their expense, inefficiency and slowness. When the Security Council decided to set up a court for Sierra Leone, it wanted to find a new model. The hybrid Special Court for Sierra Leone (SCSL) is an effort to right-size international criminal justice: it has a pared-down budget, tightly focused mandate, limited time of operation, and a lack of institutional links to the Security Council. The negotiations over these issues led to repeated clashes between the UN Secretary General and the Security Council, with the Security Council consistently favouring a more modestly sized court. The SCSL has much to recommend it but its promise is shadowed by the paltry resources available to it. In its efforts to avoid creating another over-sized tribunal, the Security Council swung too far in the other direction. The lofty goals of ending impunity and providing justice demand more than a court on the cheap.

Abstract: What have Maori been protesting about? What has been achieved? This book provides an overview of the contemporary Maori protest 'movement', a summary of the rationale behind the actions, and a wonderful collection of photographs of the action - the protests, the marches and the toil behind the scenes. And it provides a glimpse of the fruits of that protest - the Waitangi Tribunal and the opportunity to prepare, present and negotiate Treaty settlements; Maori language made an official language; Maori-medium education; Maori health providers; iwi radio and, in 2004, Maori television.

Abstract: This article puts the procedure of the International Criminal Tribunal for the former Yugoslavia (ICTY) in a completely new and previously unexplored light. Rejecting the predominant view of ICTY procedure as a hybrid between the adversarial system of the U.S. and the inquisitorial system of civil law jurisdictions, this article shows that ICTY procedure is best described through a third procedural model that does not fit in either of the two traditional systems. This third procedural model is close to the managerial judging system that has been adopted in U.S. civil procedure. The article then explores some of the implications that the discovery of managerial judging in ICTY has for both international and domestic procedures. At the international level, the article not only provides the first full-fledged model to explain ICTY procedure and its evolution over time, but also questions the widespread assumption of international policy-makers and scholars that every international criminal procedure has to be either adversarial, inquisitorial, or somewhere along a straight line between what are presumed to be the only two possible systems. At the national level, the article explains why three systems that were initially adversarial have moved in two different directions when faced with similar time pressures: U.S. criminal procedure basically has remained close to the adversarial system, while ICTY criminal procedure and U.S. civil procedure have moved toward managerial judging. By explaining these different trajectories, the article not only highlights features of U.S. domestic procedures and explains their recent evolution, but also integrates ICTY criminal procedure and U.S. criminal and civil procedures into wider debates about international criminal procedure, managerial judging, and the globalization of law.

Abstract: Objective: To explore the tension between the definition of mental illness in clinical psychiatry and its embodiment in legislation applied by tribunals reviewing decisions to treat.Method: Severe anorexia nervosa is used as a case exemplar of the tension between the appropriate narrative to express the clinical imperative to treat and the law's focus on finer technical language which secures individual civil rights and liberties. Australian and international experience is reviewed.Results: The paper finds that the clinical and the legal narratives about how to ‘define’ mental illness do differ at the formal level of expression where they necessarily intersect in the setting of tribunal review of involuntary treatment decisions. However, in practice mental health admissions and tribunal reviews generally endorse the clinical applications of that more capacious and fluid terminology of clinical psychiatry.Conclusions: While tribunal reviews of clinical decisions may occasionally require clinicians to parti...

Abstract: Acknowledgements 1. Introduction 2. International Peace and Security, International Criminal Justice and the Yugoslav War 3. Establishing a Court: 'A Mammouth Task' 4. Jurisdiction: 'Beyond Any Doubt'? 5. Procedure: 'Justice Must Not Only Be Done, But Must Be Seen To Be Done' 6. Co-operation and Judicial Assistance: The Tribunal's 'Artificial Limbs' 7. Obtaining Custody of Accused 8. An Apolitical or a Political Institution? The Exercise of Prosecutorial Discretion 9. Conclusion Bibliography

Abstract: The standard for indirect expropriation under international investment agreements is frequently compared with the standard for regulatory takings under the Fifth Amendment. The decisions of tribunals in cases interpreting the expropriation provision in Chapter 11 of NAFTA, however, indicate that the standard for indirect expropriation provides significantly greater substantive and procedural rights to foreign property owners than the Takings Clause. The definition of investment that is protected under Chapter 11 is much broader than the real property rights and other specific interests in property that are protected under the Takings Clause. In addition, under Chapter 11, an investor may be entitled to compensation for a regulatory measure that has a significant or substantial impact on the value of an investment. The degree of economic impact apparently may be calculated with regard to only the directly affected portion of the property, an approach - known as conceptual severance - that the Supreme Court has repeatedly rejected in its takings jurisprudence. Moreover, under NAFTA an investor seeking compensation for the impact of a state or local regulatory measure will have his claim heard before an international arbitral tribunal rather than in the state courts, and will not face the same ripeness and abstention hurdles that would apply in a regulatory takings case. Concern over the expansion of property rights under NAFTA's expropriation provision led state and local officials to lobby aggressively for a provision in the Trade Act of 2002 that instructs the Office of the United States Trade Representative (USTR) to ensure that expropriation provisions in future trade agreements do not provide foreign investors with greater rights than those provided to property owners under United States law. In response to Congress's no greater rights mandate, USTR has made some changes to the NAFTA model expropriation text in recent free trade agreements. It appears, however, that the expropriation provisions, both in these agreements and in other agreements currently being negotiated - such as the thirty-four-nation Free Trade Area of the Americas (FTAA) - will, like NAFTA Chapter 11, provide foreign investors with significantly greater rights than the Takings Clause. Arguably, the impact of NAFTA's expropriation provision on state and local authority is mitigated by its lack of direct domestic legal effect. If a NAFTA tribunal were to find that a state law had expropriated a foreign investment, the tribunal would have only the authority to award damages to the investor. The offending law would not be preempted by the tribunal's decision, and the federal government, rather than the state, would be liable for paying the damages. Even if the federal government brought an action seeking to have a federal court declare that NAFTA preempted the state law, such an action could be construed as an impermissible attempt to expand the restrictions imposed on the states under the Takings Clause, without complying with the procedures for amending the Constitution specified in Article V. Yet, even if international expropriation rules cannot be directly enforced against the states, they could nonetheless establish a new regulatory takings norm that could undermine state regulatory authority.

Abstract: . Some international tribunals, such as the Iran-U.S. claims tribunal and the trade dispute panels set up under GATT, are “dependent” in the sense that the judges are appointed by the state parties for the purpose of resolving a particular dispute. If the judges do not please the state parties, they will not be used again. Other international tribunals, such as the International Court of Justice, the Inter- American Court of Human Rights, and the new International Criminal Court, are “independent” in the sense that the judges are appointed in advance of any particular dispute and serve fixed terms. The conventional wisdom, which is based mainly on the European experience, is that independent tribunals are more effective at resolving disputes than dependent tribunals are. We argue that the evidence does not support this view. We also argue that the evidence is more consistent with the contrary thesis: the most successful tribunals are dependent. However, selection effects and other methodological problems render a firm conclusion impossible. We support our argument through an examination of qualitative and quantitative evidence, and we argue that the European Court of Justice is not a good model for international tribunals because it owes its success to the high level of political and economic unification among European states. We conclude with pessimistic predictions about the International Criminal Court, the International Tribunal for the Law of the Sea, and the WTO dispute resolution mechanism, the newest international tribunals.

Abstract: The Waitangi Tribunal and New Zealand History critically considers the work of the Tribunal, not only in terms of how Maori and Pakeha perceive its procedure and efficacy, but also in the context of New Zealand history in general.

Abstract: On 13 March 2004, the Special Court for Sierra Leone (SCSL) rendered an important decision on the validity of amnesties under international law. The Appeals Chamber of the SCSL ruled that amnesties granted to persons of the warring factions in the Sierra Leone civil war by the so-called Lome Peace Agreement are no bar to prosecution before it. This decision is the first ruling of an international criminal tribunal unequivocally stating that amnesties do not bar the prosecution of international crimes before international or foreign courts. The following article will briefly discuss this significant and controversial decision for the development of international humanitarian law and will then examine the most important and critical findings of the ruling, after first giving a brief summary of the legal background to the SCSL, the Lome Peace Agreement and the Appeals Chamber decision (Lome Decision) itself.

Abstract: At the time of its creation in 1993, the International Criminal Tribunal for the former Yugoslavia (ICTY) was given an adversarial construct by virtue of its Statute. In the following year, the Tribunal’s judiciary created and adopted the Rules of Procedure and Evidence that would govern at the Tribunal. Widely acknowledged to be adversarial in nature, the Rules also implemented a continental evidentiary approach and provided for certain other continental features, including an active judiciary. To better understand the effect of combining features that derive from these two legal systems, this work surveys various aspects of the common law and continental legal traditions. It then assesses the way in which aspects of the two systems have been united at the ICTY. This review specifically focuses on the manner in which the amalgamation affects the procedural safeguards bestowed upon those accused at the ad hoc tribunals. It then highlights numerous instances wherein the Tribunal has abandoned time consuming adversarial features in favor of approaches found in the continental system and thoroughly analyzes the Tribunal’s modified pre-trial practices. This examination questions the Tribunal’s commitment to the principles espoused by it, particularly with regard to the issue of judicial impartiality, and expresses the concern that the protracted nature of due process has caused fairness to become a casualty in the Tribunal’s war against inefficiency.

Abstract: At the time of its creation in 1993, the International Criminal Tribunal for the former Yugoslavia (ICTY) was given an adversarial construct by virtue of its Statute In the following year, the Tribunal’s judiciary created and adopted the Rules of Procedure and Evidence that would govern at the Tribunal Widely acknowledged to be adversarial in nature, the Rules also implemented a continental evidentiary approach and provided for certain other continental features, including an active judiciary To better understand the effect of combining features that derive from these two legal systems, this work surveys various aspects of the common law and continental legal traditions It then assesses the way in which aspects of the two systems have been united at the ICTY This review specifically focuses on the manner in which the amalgamation affects the procedural safeguards bestowed upon those accused at the ad hoc tribunals It then highlights numerous instances wherein the Tribunal has abandoned time consuming adversarial features in favor of approaches found in the continental system and thoroughly analyzes the Tribunal’s modified pre-trial practices This examination questions the Tribunal’s commitment to the principles espoused by it, particularly with regard to the issue of judicial impartiality, and expresses the concern that the protracted nature of due process has caused fairness to become a casualty in the Tribunal’s war against inefficiency

Abstract: This article explores the relationship between the concepts of trauma and justice in the jurisprudence of crimes against humanity of the International Criminal Tribunal for the former Yugoslavia, focusing upon cases of sexual violence. It argues that the Tribunal’s jurisprudence conceives this crime as a traumatic violation of both the subject of rights and of universal humanity. The Tribunal’s models of international justice as procedure, punishment, recognition and therapy understand justice as the legal suturing of this trauma. In these models, the notion of ‘justice’ functions as phantasy in the psychoanalytic sense of an imaginary scene that veils its impossibility. However, figuring international justice as the resolution of the trauma of crimes against humanity reiterates the traumatic wrong in humanitarian law. Humanitarian law therefore requires a new model of international justice - a model that does not reiterate the past but which can institute the future.

Abstract: This article explores current strains within the Employment Tribunal Service (ETS) in Britain. These should be seen as consequences of the ‘nationalization’ of employment rights; the assumption by the state of the principal roles and costs involved in dispute resolution, displacing joint regulation by employers and trade unions. The predominant policy response to the escalating demand for tribunal hearings can be characterized as ‘privatization’, in that dispute resolution is capped as far as possible at the level of the .rm and access to external adjudication is reduced. Where external adjudication proceeds, it does so in ‘private’; and roles are passed increasingly from public bodies and authorities to private organizations. Speci.cally, the article examines the ACAS Arbitration Scheme, the growth of privately provided alternative dispute resolution (ADR) and the provisions of the Employment Act 2002. Their likely consequences for the accessibility, formality, speed and expense of justice are considered.

Abstract: This article examines the role of the ITLOS established by the 1982 Law of the Sea Convention. It considers the extent to which principles of international environmental law are reflected in the 1982 Convention. It then reviews the relevant jurisprudence of the tribunal including the Southern Blue-fin Tuna case between Japan and Australia and New Zealand, the MOX case between Ireland and the UK, and the Land Reclamation case between Malaysia and Singapore to determine the extent that the ITLOS case-law has indeed contributed to the development of certain key principles of international environmental law, including Stockholm Principle 21/Rio Principle 2, the principle of preventative action, cooperation and precaution.

Abstract: This article discusses the question whether unlawful confinement of civilians in the context of internal armed conflict constitutes a war crime, with a focus on the jurisprudence of the Yugoslav Tribunal. The traditional position that international humanitarian law provides civilians with no right to freedom from arbitrary confinement in internal armed conflict will be explored and critiqued. Drawing upon the Tadic Jurisdiction Decision rendered by the Appeals Chamber in 1995, it will be maintained that a common core of protection for all civilians from unlawful confinement has emerged, applicable in both international and internal armed conflicts. Consequently unlawful confinement can be charged as a war crime pursuant to the cruel treatment proscription in common article 3(1)(a) of the four Geneva Conventions, 1949 subsumed in article 3 of the ICTY Statute. The compatibility of this position with the fundamental principle ofnullum crime sine lege will be evaluated. The lineage of the prohibition of unlawful confinement of civilians in internal armed conflict will be traced. Examination will be undertaken of the elements of article 3, common article 3 and the prohibition of cruel treatment. In addition, it will be specifically considered whether imprisonment as a war crime in internal armed conflict is sufficiently well recognised as a customary prohibition, inter alia, by considering the scope of the common core developed by the Yugoslav Tribunal.

Abstract: The establishment of international criminal tribunals to respond to mass atrocity is based, in part, on the assumption that prosecutions promote reconciliation. This article explores the way in which international criminal law addresses bystanders of mass violence. It argues that by focusing on individual defendants, law frames accountability in a manner that both encourages and discourages bystanders - community members who were not involved in criminal acts - to reconcile with former enemies. Based on an ecological paradigm of social reconstruction in which international criminal trials are understood as one of many interventions needed to promote processes of social repair, this article examines how these trials frame the relationship of bystanders to the crimes through analysis of a judgment of the International Criminal Tribunal for the Former Yugoslavia (ICTY), Prosecutor v. Simic et al. This article argues that law's response to mass violence constricts its ability to promote reconciliation. To overcome this vulnerability, international justice mechanisms should adopt a dual identity and act to promote legal justice as well as to address the ways trials impede reconciliation. This article proposes a model for community outreach for international justice mechanisms to address the negative social impact of trials.

Abstract: “During the Khmer Rouge period between April 1975 to January 1979, nearly a quarter of Cambodia’s population died as a result of extrajudicial executions, starvation and disease. In addition, tens of thousands of people were cruelly abused, enslaved, systematically tortured and killed. In this dark time, there was a generation of professional torturers. To date, not one of them has been brought to account for the suffering they caused.” – Amnesty International

Abstract: Foreword. Part I: The Arbitration Rules of UNCITRAL 1976. Introduction. Section I: Arts. 1-4: Introductory Rules. Section II: Arts. 5-14: Composition of the arbitral tribunal. Section III: Arts. 15-30: Arbitral proceedings. Section IV: Arts. 31-41: The award. Part II: The Model Law of 1985. Introduction. I: Arts. 1-6: General provisions. II: Arts. 7-19: Arbitration agreement. III: Arts. 10-15: Composition of arbitral tribunal. IV: Arts. 16-17: Jurisdiction of arbitral tribunal. V: Arts. 18-27: Conduct of arbitral proceedings. VI: Arts. 28-33: Making of award and termination of proceedings. VII: Arts. 34: Recourse against award. VIII: Arts. 35-36: Recognition and enforcement of awards. Part III: Additions made by States adopting the Model Law. Introduction. 1. Consolidation. 2. Fees and Costs. 3. Interest. 4. Liability of Arbitrators. Part IV: Conciliation. Introduction. A. Statutory Provisions on Conciliation. B. Statutory Provisions Compared with the Conciliation Rules of UNCITRAL. C. Statutory Provisions non-Comparable. D. Towards a Model Law on Conciliation? Annexes: I. Arbitration Rules of UNCITRAL. II. Conciliation Rules of UNCITRAL. III. Model Law of UNCITRAL. IV. List of Model Law Countries. V. New York Convention 1958.

Abstract: Elections in 2003, the third since the 1991 peace agreement, represent a significant step toward a multi-party democracy, but provisions of the Constitution designed to reconcile warring parties now pose problems for developing stable, democratically elected governments. Regional economic shocks to tourism have caused Cambodia to fall well below original projections for economic growth. Prospects for an international tribunal to try former Khmer Rouge leaders now appear to be moving toward limbo.

Abstract: For most of this century, Australian industrial relations has been regarded as distinctive because of the prominent role performed by industrial tribunals in regulating disputes between the parties. The role of the mainstream federal tribunal was possibly at its zenith in the period 1983 to 1990, in implementing and policing an 'orderly system' of industrial relations regulation. By the latter part of the 1990s, the role of this tribunal had substantially diminished. The Australian Industrial Relations Commission had come under increasing attack in the early 1990s over its failure to endorse a move to a new system of regulation known as enterprise bargaining. Both the Australian Labor Party and the Howard coalition government, after its election in March 1996, introduced legislation to reduce the Commission's ability to perform its traditional functions. The paper draws on theories of regulation, in particular the insights of Joskow and Wilson, to explain the slippage and increasing decline in the role of the Commission.

Abstract: This Article looks in detail at whether the Special Court is, at present, succeeding or failing, drawing lessons along the way both for the system of international criminal justice generally, and more specifically for U.N. enforcement of the law of war. In Section II, this Article suggests a method for measuring success and failure in an international criminal tribunal. It suggests that there are a number of identifiable performance standards which should guide our assessment, each linked to a stakeholder group: the international community, the affected population, and the defendants. In Sections III-V, this Article assesses the Special Court’s early performance from the perspective of each of these stakeholder groups, against these performance standards. In Section VI, it assesses the implications of these trends, suggests ways that negative consequences might be avoided or at least minimized, and points to longer-term implications, particularly for the U.N. involvement in the enforcement of the law of war. This Article concludes that a hybrid tribunal, like the Special Court, engages with a range of dynamics affecting the humanitarian community and complex peace operations that the ad hoc tribunals have avoided, but which produce unexpected effects in the context of criminal justice. Those dynamics are not presently taken into account either in the design and resourcing of the Special Court, or in stakeholders’ expectations of what it can achieve. Careful consideration of these challenges is required lest “hybrid” tribunals upend the maxim “no peace without justice,” preventing peace by pursuing justice. THE FRAYING SHOESTRING: RETHINKING HYBRID WAR CRIMES TRIBUNALS

Abstract: History counts its skeletons in round numbers. A thousand and one remain a thousand as though the one never existed. Wislawa Szymborska Over the past ten years, a growing tension has emerged between the humanitarian needs of families of the missing and the evidentiary needs and limitations of international war crimes tribunals in the aftermath of mass killings. On the one side are families who wish to know the fate of their missing relatives and, if they have died, to receive their remains. In their work exhuming mass graves in thirty-one countries, Argentine forensic anthropologists Mimi Doretti and Luis Fondebrider have found that “families have a desperate need to recover the remains so that they may properly bury them and close – if only partially – the circle of uncertainty.” On the other side are international war crimes tribunals, which are charged to investigate large-scale killings but which may lack the resources or political will to undertake forensic investigations aimed at identifying all of the dead. When a tribunal does levy charges of genocide or crimes against humanity – the two most heinous of all state-sponsored crimes – against suspected high-level perpetrators of mass killings, personal identification of the victims may not be a necessary part of a legal investigation. The charge of genocide, for example, requires that the prosecution prove that the alleged perpetrators committed acts with the intent “to destroy, in whole or part, a national, ethnic, racial or religious group.