Abstract: In its recent Genocide judgment, the International Court of Justice discussed the question of whether the acts of genocide carried out at Srebrenica by Bosnian Serb armed forces must be attributed to the Federal Republic of Yugoslavia (FRY), as claimed by Bosnia It applied the ' effective control ' test set out in Nicaragua , reaching a negative conclusion The Court also held that the broader ' overall control ' test enunciated by the International Criminal Court for the former Yugoslavia (ICTY) in Tadi c did not apply, on two grounds First, the test had been suggested by the ICTY with respect to the question of determining whether an armed confl ict was international and not with regard to the different issue of state responsibility; secondly, in any case the test would have overly broadened the scope of state responsibility The author argues that the ICTY admittedly had to establish in Tadi c whether the armed confl ict in Bosnia was internal or international However, as no rules of international humanitarian law were of assistance for such determination, the Tribunal explicitly decided to rely upon international rules on state responsibility The ICTY thus advanced the ' overall control ' test as a criterion generally valid for imputation of conduct of organized armed groups to a particular state The test was based on judicial precedents and state practice In addition, the ICTY did not exclude the applicability of the ' effective control ' standard, stating however that it only applied for the attribution to a state of conduct by single private individuals Judicial decisions, even subse- quent to Tadi c , support the view that whenever conduct of organized armed groups or military units is at stake it suffi ces to show that the state to which they may be linked exercises ' overall control ' over them, in order for the conduct of those groups or units to be legally attributed to the state Hence, any sound critique of Tadi c should not suggest that it dealt with a matter dif- ferent from state responsibility It should instead be capable of showing that state and judicial practice do not corroborate that test

Abstract: When threatened by crises such as global terrorism, financial collapse, pandemic diseases, and natural disasters, states may resort to measures that harm the interests of foreign investors protected under the bilateral investment treaty (BIT) regime. Many such BITs, however, contain heretofore under-studied clauses that preclude liability for state actions taken in response to exceptional circumstances. These non-precluded measures (NPM) clauses effectively transfer the risk of and costs associated with state action in exceptional circumstances from the host-states of international investments to the investors. In two recent cases brought against Argentina in response to the Argentine financial crisis, ICSID tribunals have interpreted the NPM clause in the U.S.-Argentina BIT in radically different ways, with one tribunal holding Argentina liable and the other excusing Argentina from compensating investors. This article provides the first detailed study of NPM clauses in international investment law. It argues that NPM clauses are, in fact, a widespread element of the international law of foreign investment. To guide states, investors, and arbitral tribunals, the article offers a framework for the interpretation of NPM clauses, based on the practice of key states including the U.S., Germany, and India. In so doing, the article imports the margin of appreciation doctrine from European human rights law into international investment arbitration as a mechanism for determining the scope of deference to be accorded to critical state policies by ad hoc arbitral tribunals. More generally, the article argues that the risk-allocation function performed by NPM clauses is of considerable significance to the depth of international legal cooperation, the response of states to international crises, and the flow of international investments.

Abstract: Recent efforts to develop and implement progressive models of transitional justice have been significantly influenced by major developments in the law concerning sexual violence in armed conflict. In particular, the International Criminal Tribunal for the former Yugoslavia has pioneered accountability for sexual violence against women in armed conflict. This article takes the ICTY as a case study of how gender can structure the accountability mechanisms of transitional justice. The article analyses how legal norms and practices instantiate and reiterate, rather than transform, existing hierarchical gender relations. It considers the existing models of sexual violence as a criminal harm under international law, and then examines gendered patterns of legal practice in ICTY prosecutions. To address this engendering of transitional justice, the article produces a new model of the harm of sexual violence in conflict, suggests the development of a new international offence of sexual violence and generates different strategies for international prosecutions of sexual violence.

Abstract: In an international commercial setting, in most cases parties to a sales contract add, albeit last minute, a choice of law and an arbitration clause. But they seldom, if at all, think of limitation periods that may bar their possible claims, and especially which law may be applied to this difficult and often crucial question. This fact burdens the arbitral tribunal with the difficult task of ascertaining the proper limitation regime for an international sales contract. This article examines the diversity of domestic rules in this field, compares them with international instruments regulating international sales of goods and limitation of actions, and analyses if and how arbitration rules give guidance to arbitrators in regard to the determination of the applicable and also, proper limitation regime for an international sales contract.

Abstract: Preface and acknowledgements iv. Contents. List of abbreviations. 1 Peace and Justice. 1.1 Transitional/Post-Conflict Justice. 1.1.1 Accountability. 1.1.2 Deterrence. 1.1.3 Historical record. 1.1.4 Reconciliation, and healing. 1.1.5 Redress for victims. 1.1.6 Removal of perpetrators. 1.1.7 Capacity-building and the rule of law. 1.2 Risks and dangers. 1.2.1 Destabilisation. 1.2.2 Retraumatisation. 1.2.3 Politicisation. 1.3 Context, context and context. 1.3.1 Cultural norms and values. 1.3.2 Nature of the conflict and extent and types of abuses. 1.3.3 Needs of victims, survivors and perpetrators. 1.3.4 Peace agreement. 1.3.5 Finance and infrastructure. 1.3.6 Political will. 1.3.7 International involvement. 1.4 The book. 2 The Nuremberg Legacy. 2.1 Nuremberg and Tokyo. 2.2 International Humanitarian Law post-1945. 2.3 International Criminal Law. 2.4 Human Rights Law. 2.5 Conclusion. 3 Ad hoc International Criminal Tribunals: The ICTY and ICTR. 3.1 International judicial intervention. 3.2 Establishing a court and launching investigations. 3.3 Jurisdiction and Procedure. 3.4 State cooperation and judicial assistance. 3.5 Justice, Peace and Reconciliation. 3.5.1 Delivering justice. 3.5.2 Contribution to international criminal law. 3.5.3 Restoring and maintaining peace. 3.5.4 Deterrence. 3.5.5 Historical record. 3.5.6 Reconciliation. 3.5.7 Removing perpetrators. 3.5.8 Political leverage. 3.5.9 Engaging the local population. 3.6 Conclusion. Box 3.1: The Yugoslav War. Box 3.2: Rwanda. 4 The International Criminal Court. 4.1 Establishing the Court: the Rome Statute. 4.2 Jurisdiction and admissibility. 4.3 Applicable law. 4.4 The 'essential paradox' of complementarity. 4.5 The role of the Prosecutor. 4.6 The relationship with the Security Council. 4.7 The United States and the International Criminal Court. 4.8 International criminal justice and international peace and security: a 'perfect symbiosis'?. 4.9 Engaging the local population and meeting victims' needs. 4.10 Peace and justice?. 4.11 Conclusion. Box 4.1: Situations and Cases. Uganda. Democratic Republic of Congo (DRC). Sudan. Box 4.2: Universal jurisdiction. 5 'Internationalized' Courts. 5.1 A New Breed of Tribunal?. 5.1.1 Jurisdiction and procedure. 5.1.2 Financial and logistical challenges. 5.1.3 State Cooperation and Judicial Assistance. 5.1.4 Relationship to domestic courts. 5.1.5 Communication and outreach. 5.2 Justice, peace and reconciliation. 5.2.1 Providing justice. 5.2.2 Peace and reconciliation. 5.2.3 Complementarity. 5.2.4 Capacity-building and the rule of law. 5.3 Conclusion. Box 5.1: The Special Court for Sierra Leone. Box 5.2: Regulation 64 Panels in Kosovo. Box 5.3: Special Crime Panels in Timor-Leste Error! Bookmark not defined. Box 5.4: 'Extraordinary Chambers' in Cambodia. 6 Domestic Trials. 6.1 Rights and Obligations in International Law. 6.2 Judicial Reform: A Primary Hurdle for Domestic Trials. 6.3 Political and Practical Obstacles to Domestic Trials. 6.3.1 Political Realities and Destabilisation. 6.3.2 Amnesties. 6.3.3 Financial Obstacles. 6.3.4 Victor's Justice or Vengeance. 6.3.5 Selectivity. 6.3.6 Re-victimisation. 6.3.7 Evidence and Witness Protection. 6.4 Benefits of Domestic Trials. 6.5 Conclusion. Box 6.1: Domestic Trials - Rwanda. Box 6.2: Domestic Trials - The Indonesian Ad Hoc Human Rights Court. Box 6.3: The Supreme Iraqi Criminal Tribunal. 7 Truth Commissions. 7.1 Definitional Clarity. 7.2 Design and Resources. 7.3 'Truth' and 'reconciliation' in Truth Commissions. 7.4 Restorative Justice - Healing and Retraumatisation. 7.5 Additional Benefits and Limitations of Truth Commissions Error! Bookmark not defined. 7.5.1 Acknowledgement and Local Ownership Error! Bookmark not defined. 7.5.2 Amnesties. 7.5.3 Due Process and Naming Names. 7.5.4 Deterrence. 7.5.5 Political Obstacles. 7.6 Conclusion. Box 7.1: The Truth and Reconciliation Commission in the DRC. Box 7.2: The Truth and Reconciliation Commission in South Africa. Box 7.3: The Commission on the Truth for El Salvador. *

Abstract: 1. Introduction - the social lives of international justice Tobias Kelly and Marie-Benedicte Dembour Part I. Paths...: 2. The success of failure? Minority supervision at the League of Nations Jane K. Cowan 3. Law, civil society and contested justice at the International Criminal Tribunal for Rwanda Emily Haslam 4. Transparent broadcast? The reception of Milo evic's trial in Serbia Jelena To ic Part II. ...to International...: 5. The limits of international justice at the European Court of Human Rights: between legal cosmopolitanism and 'a society of states' Basak Cali 6. Global justice, local controversies: the International Criminal Court and the sovereignty of victims Kamari Maxine Clarke 7. Human Rights Law as a path to International Justice: the case of the women's convention Sally Engle Merry Part III. ...Justice: 8. The house of ghosts: post-socialist property restitution and the European Court's rendition of human rights in Brumarescu v. Romania Filippo M. Zerilli and Marie-Benedicte Dembour 9. Entwined paths to justice: the inter-American human rights system and the Peruvian Truth Commission Lisa J. Laplante 10. Same old story? Gypsy understandings of the injustices of non-Gypsy justice Sal Buckler.

Abstract: Definition and sources of international arbitration. The law of arbitration and the role of the seat of the arbitration. The Arbitration Agreement. The Arbitral Tribunal. Control of the arbitrator's competence. The arbitral procedure. The applicable law to the basis of the dispute. The Award. The control of the award by the judicial authority of the seat of arbitration. Recognition and enforcement of arbitral awards. General conclusions.

Abstract: In comparison to sentences meted out by international tribunals at Nuremberg, Tokyo and Arusha, and by domestic courts, sentences handed down at the International Criminal Tribunal for the former Yugoslavia (ICTY) have been inexplicably lenient. Factors that may have contributed to the high proportion of low sentences at the ICTY include undue emphasis on mitigating factors, particularly those of particular importance to the Tribunal, the use of plea agreements, the absence of a separate sentencing hearing following conviction and the practice of using global (rather than separate) sentences. To make sentences more proportionate to the crimes committed, the objectives of sentencing should be clarified and re-evaluated. Greater weight should be given to deterrence. In assessing the gravity of the offence, the quantum of harm caused to and suffering experienced by direct and indirect victims of the crime merits more detailed evaluation. The importance of mitigating circumstances (such as combating historical revisionism, pleading guilty, expressing remorse and voluntary surrender) should continue to be fully recognized but those factors should not attract excessive weight. Plea bargaining and plea agreements should be encouraged because they are indispensable to the Tribunal, an institution with significant temporal, practical and resource limitations. The sentencing process should take place after conviction. A sentencing Chamber should be obliged to state the starting point of the sentence which it deems appropriate and then quantify the discounts it gives to each mitigating factor. Greater consideration should be given to imposing consecutive rather than concurrent sentences. The decision not to adopt sentencing guidelines represents a missed opportunity.

Abstract: International public servants and their far-reaching secretariats receive little press attention when nation-states take the spotlight in significant international events, which is why author John Mathiason and others commonly refer to them as invisible. But secretariats' activities are constantly shaping the course of history with inspectors determining whether uranium enrichment in Iran is for peaceful purposes, maintaining surveillance on a possible bird flu epidemic (the World Health Organization), raising alarms about starvation in Zimbabwe (the World Food Programme), or passing judgment on former heads of state and military officers in the Balkans (the United Nations war crimes tribunal). Having served as a member of the United Nations Secretariat for 25 years, author John Mathiason offers a unique behind-the-scenes view, taking readers through of the life and duties of an international public servant. Through personal accounts and extensive knowledge of a variety of international organizations, Mathiason covers the implications of being an influential, but "invisible" entity. He charts the difficulties in documenting scope and accountability, the issues such as disarmament, human rights, and environmental protection that he encountered while serving at the secretariat and charts the history of these dynamic and expansive entities present in every crucial event of the past century. By looking at the international public sector as an actor in its own right, "Invisible Governance" provides a new perspective on the workings of the international system and tools and approaches for ensuring that the system works effectively and with accountability.

Abstract: It is more than 10 years since the Special Educational Needs Tribunal was established in 1994 as an independent panel which arbitrates in disputes between parents of children with the label special educational needs and Local Education Authorities (LEAs) in England. In 2002 the Tribunal began hearing claims for disability discrimination and was re‐named the Special Educational Needs and Disability Tribunal (SENDisT). Since 1994 over 20,000 appeals have been registered. This article, which forms part of my ongoing Ph.D. thesis ‘Parents as advocates: the experience of parents who register an appeal with SENDisT’, offers an analysis of parents’ Tribunal stories. Here, the key question is what affect the process of going to SENDisT has on the social, emotional and financial well‐being of the family. Through a process of narrative inquiry the aim is to foreground parents’ unheard stories and to reveal their ‘hidden’ experiences.

Abstract: Two recent ICSID cases, CMS v Argentina and LG&E v Argentina, diverge on the application of necessity under customary international law The LG&E tribunal affirmed that Argentina’s financial crisis amounted to a state of necessity On virtually identical facts, CMS had reached the opposite conclusion 18 months earlier This unhealthy split of opinion highlights that necessity is ill-suited to financial crises The state of Necessity is at best a crude defence appropriate so long as international law in this area remains underdeveloped Lack of payment capacity will strike a better balance of host country and investor interests in future sovereign debt crises This defence is also more amenable to adjudication by national courts and international tribunals

Abstract: When threatened by crises such as global terrorism, financial collapse, pandemic diseases, and natural disasters, states may resort to measures that harm the interests of foreign investors protected under the bilateral investment treaty (BIT) regime. Many such BITs, however, contain heretofore under-studied clauses that preclude liability for state actions taken in response to exceptional circumstances. These non-precluded measures (NPM) clauses effectively transfer the risk of and costs associated with state action in exceptional circumstances from the host-states of international investments to the investors. In two recent cases brought against Argentina in response to the Argentine financial crisis, ICSID tribunals have interpreted the NPM clause in the U.S.-Argentina BIT in radically different ways, with one tribunal holding Argentina liable and the other excusing Argentina from compensating investors. This article provides the first detailed study of NPM clauses in international investment law. It argues that NPM clauses are, in fact, a widespread element of the international law of foreign investment. To guide states, investors, and arbitral tribunals, the article offers a framework for the interpretation of NPM clauses, based on the practice of key states including the U.S., Germany, and India. In so doing, the article imports the margin of appreciation doctrine from European human rights law into international investment arbitration as a mechanism for determining the scope of deference to be accorded to critical state policies by ad hoc arbitral tribunals. More generally, the article argues that the risk-allocation function performed by NPM clauses is of considerable significance to the depth of international legal cooperation, the response of states to international crises, and the flow of international investments.

Abstract: Recent years have seen a trend towards increasing transparency in international investment arbitration. This trend has been reflected in arbitral practice and in the amendments to the ICSID Arbitration Rules in 2006, which now expressly allow for participation of non-disputing parties as amicus curiae. Still more problematic, however, is the publication of arbitral documents, which has recently been controversial in Biwater Gauff v. Tanzania. This paper will discuss the core provisions on the publication of documents of the UNCITRAL Arbitration Rules, the ICSID Arbitration Rules and NAFTA Chapter 11. It will analyze the reasoning and the findings of the Biwater Tribunal in this regard as well as the pertinent practice of previous investment tribunals. Important policy issues underlying the decision of the Biwater Tribunal will also be analyzed.

Abstract: In this contribution the reparation possibilities for victims of sexual violence at the Inter-national Criminal Court and at the Trust Fund for Victims and their families are explored. This is done by explaining first of all why victims of sexual violence – and especially women – are in urgent need of reparation during and after conflict, with a special focus on the situation of female survivors of sexual violence in Rwanda. The reparation possibilities for victims of sexual violence at the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda are subsequently discussed, followed by a similar discussion with regard to the ICC. Questions such as the nature of the best forms of reparation for victims of sexual violence and at what point they are made are also dealt with. Although the ICC reparations regime offers in theory a good means of providing restorative justice to victims of sexual violence, it is important that the special concerns and needs of such victims are not easily overlooked by the Court and that swift action is taken by the Trust Fund for Victims and their families to address their plight.

Abstract: Acknowledgements and Notes on Sources Abbreviations Preface 1. From Newgate to Tyburn: Setting the Stage 2. From the Gallows to Grub Street: Last Dying Speeches and Criminal 'Lives' 3. Everyman and the Gallows: Contemporary Explanations for Criminality 4. Highwaymen Lives: Social Critique and the Criminal 5. The Ordinary's Account: Confession and the Criminal 6. Dying Well: Martyrs and Penitents 7. Dying Game: Highwaymen and Bridegrooms 8. God's Tribunal: Providential Discoveries and Ordeals Conclusion: The Adjournment of God's Tribunal.

Abstract: The article examines the jurisprudential value of Tribunal decisions and awards from both theoretical and empirical perspectives. The article considers four factors for assessing the precedential value of awards and decisions of international tribunals: (i) the integrity and authoritative standing of the court or tribunal issuing the earlier decision; (ii) the similarity of the relevant facts in the two cases, (iii) the similarity of the law relied on as necessary to making the decision (the decisional law); and (iv) the merits or instructive value of the prior tribunal's reasoning in reaching its decision - hence, its exposition of the law. Applying these factors to the jurisprudence of the Iran-U.S. Claims Tribunal demonstrates the importance of that jurisprudence as persuasive authority in investor-State arbitration. Part I of the article examines the extent to which Tribunal precedent has been cited by parties and tribunals in investor-State arbitrations. The citation analysis finds significant citation of Tribunal precedent in awards and decisions in arbitrations administered by the International Centre for Investment Disputes (ICSID), and in party submissions in arbitrations under Chapter 11 of the North American Free Trade Agreement. Thus, the awards and decisions of the Iran-U.S. Claims Tribunal have been and likely will continue to be an important source of authority in investor-State arbitration.

Abstract: There is much evidence that the ‘European social model’ is under threat, with neoliberalism increasingly dominating policy both at EU and national levels. Within this trend, Britain stands out as already having a long-established free market tradition – Anglo-American in both industrial relations and corporate governance systems. This article seeks to illustrate how British state allegiance to a ‘flexible’ labour market has brought new restrictions to accessing statutory employment protection, the chief defence for ‘unorganized’ workers – those who are neither unionized nor covered by collective agreements and who now comprise the majority of workers in Britain. The New Labour government, committed to voluntarism and flexibility, has used the very instrument it avers to avoid – legal regulation – to limit access to employment tribunals, the final resort for legal enforcement of employment rights. The government has thus constrained its concessions to the European social model, which comprise a range of laws since 1997 enhancing individual employment rights, in its overarching neoliberal policy, by ensuring legal regulation remains difficult to achieve and does not ‘burden’ business. This article, based on research both on legal developments, and on the social support mechanisms for non-unionized workers, seeks to demonstrate the extreme vulnerability of the unorganized worker in an increasingly free market Britain. How far this portrait has relevance to the rightward drift of Europe depends on the degree to which it can be exported, how far continental European systems are sufficiently institutionally embedded to resist this, and how successfully the European social model is defended.

Abstract: Two recent ICSID cases, CMS v. Argentina and LG&E v. Argentina, diverge on the application of necessity under customary international law. The LG&E tribunal affirmed that Argentina's financial crisis amounted to a state of necessity. On virtually identical facts, CMS had reached the opposite conclusion 18 months earlier. This unhealthy split of opinion highlights the fact that necessity is ill-suited to financial crises. The state of necessity is at best a crude defence, appropriate as long as international law in this area remains underdeveloped. Lack of payment capacity will strike a better balance between host country and investor interests in future sovereign debt crises. This defence is also more amenable to adjudication by national courts and international tribunals.

Abstract: This presentation starts out with an overview of the environmental jurisprudence of international tribunals and courts in the last decade. The author then examines the jurisprudence of the ITLOS and considers four issues that have arisen: the precautionary principle; environmental impact assessment; environmental co-operation; and jurisdiction over marine environmental disputes. Concluding, he asks what the jurisprudence tells us about the Tribunal's role in the LOSC dispute settlement system. First, the Tribunal's provisional measures cases have established the utility of the Article 290 procedure as a means of protecting the rights of other States but also the marine environment in general. Second, there is evidence in the case law of a desire to settle disputes between the parties in a way that contributes to the development of a consistent jurisprudence and of a willingness to interpret and apply Part XII of the Convention in accordance with the contemporary state of international environmental law. The Tribunal's record on marine environmental disputes is a positive one.

Abstract: I. INTRODUCTION Hybridity is an increasingly common theme in the study and practice of transitional justice and post-conflict reconstruction. In recent years, a growing trend has emerged in institutional responses to complex conflict and post-conflict situations that advocates "legal pluralism," or hybrid structures in which "two or more legal systems coexist in the same social field."1 Today, legal pluralism usually involves some type of international criminal tribunal and a locally-directed truth commission, as in the cases of Sierra Leone and Burundi. The primary purpose of such hybridity is to facilitate holism. A holistic approach to transitional justice provides that multiple political, social, and legal institutions, operating concurrently in a system maximizing the capabilities of each, can contribute more effectively to the reconstruction of the entire society than a single institution. Holistic approaches cater to the various physical, psychological, and psychosocial needs of individuals and groups during, as well as after conflict. The trend toward hybrid systems coincides with the greater legitimacy afforded to and more regular use of localized methods of accountability and conflict resolution, which are often designed to augment international and national processes. In 2004, United Nations secretary-General Kofi Annan stated that, in the context of transitional societies, "due regard must be given to indigenous and informal traditions for administering justice or settling disputes to help them to continue their often vital role and to do so in conformity with both international standards and local tradition."2 It is becoming increasingly popular, particularly in Africa, to employ forms of local or traditional dispute resolution in response to serious atrocities. In many cases, traditional mechanisms have been co-opted by political elites and modified so that they bear only a cosmetic resemblance to their antecedent institutions, calling into question the legitimacy of referring to these institutions as "indigenous" or "traditional."3 This article clarifies the genesis and operation of the Rwandan system of gacaca, which is also embedded within a hybrid structure for responding to mass crimes, situating it within the broader realm of transitional justice.4 Gacaca is comprised of approximately 9000 community-based courts, each overseen by locally-elected judges and designed to adjudicate the cases of suspected perpetrators of the 1994 genocide, during which approximately 800,0005 Tutsi and Hutu and Twa, considered Tutsi sympathizers,6 were killed, many by their friends, neighbours and even family members. Gacaca operates alongside the UN International Criminal Tribunal for Rwanda (ICTR) and the Rwandan national courts. In this hybrid system, which Madeleine Morris terms one of "stratified-concurrent jurisdiction,"7 different judicial bodies are charged with prosecuting the same pool of suspects, subject to a legal hierarchy dictating which bodies have priority jurisdiction over any given case. Much confusion currently surrounds how best to define the history and operation of gacaca as well as how to situate it within the wider framework of transitional justice or post-conflict reconstruction processes around the world. Questions abound: Is it fundamentally a legal institution, a social institution with certain quasilegal functions, or something entirely different? What is it designed to achieve and how should we judge its effectiveness as a response to the Rwandan population's needs after the genocide? This Article shows that most critiques, especially those from Western legal commentators, mischaracterize gacaca and what it is designed to achieve. Therefore, it is unsurprising that most commentaries provide highly unconvincing accounts of how effectively gacaca contributes to post-conflict reconstruction in Rwanda. In particular, many legal critics wrongly characterize gacaca as a form of mob justice, in which the rights of individuals are sacrificed for the sake of the cheap and rapid prosecution of genocide suspects. …

Abstract: This article examines the role that command responsibility currently plays in the case law of the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR). The ad hoc tribunals rely in principle on a broad concept of command responsibility - which can be applied to all superiors, including political and civilian ones. However, in practice, accused persons have only rarely been successfully charged under this form of liability. Indeed, recent case law has gradually adopted a rigorous approach with respect to the legal requirements of command responsibility. This has made it more difficult to establish criminal liability of superiors who have not directly participated in the commission of international offences. The ad hoc tribunals have expressed an explicit preference for forms of ‘direct’ liability where the accused can be convicted both under ‘direct’ and command responsibility. While the ICTY and ICTR have progressively interpreted other international legal concepts to deal effectively with collective crimes committed by leaders of organized groups, they seem to have confined command responsibility to international crimes perpetrated in typical military-like contexts.

Abstract: This article provides a comprehensive analysis of the unanimous 2006 Award of the Five-Member Tribunal established under Annex VII of the 1982 Law of the Sea Convention (LOSC) by Barbados and Trinidad and Tobago regarding the delimitation of their fish and oil-rich Exclusive Economic Zones (EEZ) and Continental Shelves (CS). It surveys the procedural significance of several unprecedented pronouncements made by the Arbitral Tribunal with respect to Articles 281–283 LOSC and their relationship to LOSC Articles 74 and 83, which allowed the Tribunal to uphold its compulsory jurisdiction over the delimitation of the EEZ/CS up to 200 nautical miles and of the outer CS beyond this limit. The article commences with the Tribunal's appraisal of the modern law and process of equitable maritime boundary delimitation, followed by its application of that law consistently with the vast jurisprudence of the International Court of Justice and previous arbitral tribunals. In a two-stage process, the Tribunal drew a provisional, single equidistant boundary line and then considered whether that line needed to be adjusted in view of special circumstances and the proportionality test for an equitable result. This process is traced against the background of the factual and legal contentions disputed by the parties in the Western and Eastern sectors. The Tribunal also provided an important incentive for resolution of the associated fisheries dispute by calling upon the parties to conclude, pursuant to LOSC Article 63, a new agreement on Barbados's access to flying fish stocks in Trinidad's EEZ.

Abstract: After addressing some preliminary points, the presentation first stresses the importance of distinguishing clearly between jurisdiction and applicable law. Then it considers how a court or tribunal whose jurisdiction ratione materiae is largely con fined to the interpretation and application of a particular treaty may nevertheless refer to general international law. The author suggests six possible ways in which recourse may be had to general international law and analyzes the case-law of the International Tribunal for the Law of the Sea in that regard. He then points out the relevance of expertise in general international law for the composition of the Tribunal. By way of conclusion, the author suggests that when any court or tribunal acting under a limited conferral of jurisdiction has recourse to general international law, it should—in the interest of transparency and so as to avoid the appearance of an excess of jurisdiction— explain the basis on which it is doing so. In his view, the Tribunal has made an important contribution to the law of the sea and to certain issues of general international law while acknowledging that the law of the sea can only be properly understood within the context of international law as a whole.

Abstract: This work analyzes the complexity of interpretation, revision, and other forms of ‘reference’ to the International Court from some other international body, court or arbitral tribunal.

Abstract: The International Criminal Tribunal for the Former Yugoslavia (ICTY) was established in 1993 with an explicit mandate to contribute to the restoration and maintenance of international peace and security through the administration of justice. In spite of early difficulties and widespread scepticism, the Tribunal evolved into a fully functioning international criminal court, operating in real‐time over Kosovo in 1998–1999. From the point when the first arrests were carried out by international forces, in summer 1997, the ICTY was seen to be a key element of transition from war to peace in the former Yugoslavia. Critical to its success or failure, however, was the attitude of states in the region. This operated on two levels: first, without its own enforcement capability, the ICTY is wholly reliant on state cooperation in order to fulfil its judicial mandate; and second, the effective communication of its work is dependent on the attitude of the government and media in the states concerned. There is a symbio...

Abstract: Objective. This article examines gender justice at the International Criminal Tribunal for the Former Yugoslavia (ICTY) by analyzing sexual assault cases and the impact that gender composition has on sentencing outcomes. Methods. We employ regression analysis to explain the impact of male and female jurists as decisionmakers and the subsequent outcomes rendered for victims. Results. We find that gender is a determinate factor in sentencing outcomes, and that female judges have a distinctive role that varies depending on the gender of the victim in the case. Conclusion. Contrary to criticisms that the ICTY has not provided justice for victims in sexual assault cases, we find support for the exact opposite. Sentencing disparities indicate that female jurists more severely sanction defendants who assault women, while all male panels of judges do the same for male victims.

Abstract: The first person to be found guilty of genocide by the International Criminal Tribunal for Rwanda (ICTR) was Jean-Paul Akayesu, the bourgmestre 1 of Taba Commune in Gitarama.2 The prefecture of Git...

Abstract: The paper examines the way in which the Tribunal has so far dealt with applications for the prompt release of arrested vessels and crews under Article 292 of the United Nations Convention on the Law of the Sea, 1982. It begins by setting out the prerequisites for the Tribunal's jurisdiction to deal with such applications. These include the requirement that an application must be submitted by or on behalf of the flag State of the vessel, the need for the Tribunal to determine that the application is admissible and that the allegation of non-compliance with a provision of the Convention is "well founded." The paper then examines the nature and content of the Order of the Tribunal, including the issue of the reasonable bond or other financial security to be set for the release of the ship or its crew. A core problem considered is the relationship of the prompt release application to the proceedings "on the merits" before other courts or tribunals. In particular, consideration is given to possible problems that may arise where an application is presented after proceedings in the domestic courts have been completed. The paper concludes by noting with approval the flexible and evolutionary approach by which the Tribunal has so far applied this innovative provision of the Convention.

Abstract: The Iraqi High Criminal Court established to prosecute Saddam Hussein and other leading Ba'athists is one of the most visible of the current efforts to establish criminal accountability for violations of international norms. Juxtaposed against other tribunals, the High Criminal Court has provoked worldwide debate over its processes and its prospects for returning societal stability founded on respect for human rights and the rule of law to Iraq. This article explores in detail the legal basis for the formation of the High Criminal Court under the law of occupation. It addresses the relationship between the Iraqi model of prosecuting crimes in domestic fora incorporating international law and the alternative model of transferring jurisdiction to an international forum. The controversial aspects of the Iraqi model are considered, such as the legitimacy of its creation, the revocation of official immunity, the procedural fairness of the Statute in the light of international norms, and the substantive coverage of what some have termed an internationalized domestic process. The author concludes that accountability for international crimes is one of the unifying themes that should bind humanity in common purpose with the Iraqi jurists as they pursue justice in accordance with international norms.