The Sword and the Scales: The United States and International Courts and Tribunals
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Contents:
The Tribunal was satisfied with Mr.
The Tribunal was satisfied that Mr. Curro could provide the degree of independence and impartiality required by the Tribunal. In the end, EMCO was successful on the tariff classification point and, therefore, was entitled to receive the refunds. More importantly than the win, there is clarification on the use of experts before the Tribunal.
Mohan , the Supreme Court of Canada enunciated the following four criteria to consider when assessing the admissibility of expert evidence: relevance; necessity in assisting the trier of fact; absence of any other exclusionary rule of evidence; and a properly qualified expert. The following sections describe both of these types of resources. In the United States, the State Department publications include pronouncements that undertake to state the rules of international law and as such are excellent resources for the evidence of custom.
Examples of these documents include memorandums, letters from legal advisors, U. Today, the State Department and the Office of the Legal Advisor provide many of these resources on their websites.
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For more information on researching foreign relations of the United States, there are many good U. Foreign Policy Research Guides, such as:.
The Sword and the Scales is the first in-depth and comprehensive study of U.S. attitudes toward international criminal courts and tribunals. The Sword and the Scales: The United States and the International Courts and Tribunals. Edited by Cesare P. R. Romano. Cambridge, New York: Cambridge.
While the resources in this section can be excellent resources, it is sometimes more practical to use resources that have already compiled and analyzed domestic documents that relate to international law, such as the digests and secondary sources described in the subsequent sections. Following is a list of resources for U. Over the years, an official digest of U. These digests include editorial descriptions of international law in various areas as well as selections of official U. Published by the Department of State, authorship has changed over the years, and recent issues are published with the International Law Institute under the auspices of the Department of State, Office of the Legal Advisor.
Also, they usually provide excellent citations to the documents themselves and sometimes excerpts or texts of the documents. When researching state practice from the perspective of countries other than the United States, the same principles apply as in U.
Last but not least, the ICC is only allowed to exercise jurisdiction when competent national courts are unwilling or unable to investigate and prosecute the most heinous crimes of interest to the international community. The four situations relating to the Asian region are i the situation of the Republic of Korea phase 1 , ii the situation of Ukraine phase 2 , iii the situation of Afghanistan phase 3 and iv registered vessels of Comoros, Greece, and Cambodia situation under reconsideration. Its surge is indeed one of the few major achievements of the world community we may observe in the last twenty years. Karel van Oosterom signed an agreement Learn more. It appears that the Defense Office was eventually given a compact disc containing Arabic translations of key international criminal law judgments in May or June Indeed, after the commencement of the Dujail trial, there was intense public criticism of the court and the trial judges for not being sufficiently harsh with the defendants.
Many foreign ministries are putting a significant amount of information on their websites. Alternatively, you can use the name of the ministry as the author in a catalog search or to limit an internet search. A selective list of foreign ministries and their websites is included below, but a Google search for the country name and the word Foreign affairs will usually bring up the appropriate agency for any country:. An excellent way to find information about state practice in other jurisdictions is using yearbooks on international law.
Many states publish such a yearbook.
They are unofficial, often published by a national law society, and include articles about international law and state practice. They also include citations to official documents, and sometimes include indexes and full-text documents. They often have bibliographies of books and articles published in that country on international law. Many are published or translated into , at least in part, in English and are therefore a great resource for those who cannot read the vernacular.
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Occasionally, publications including the classic content of an international law yearbook may be called by another name annual, etc. There are many excellent secondary sources on customary international law from other jurisdictions. This section covers sources that include multiple jurisdictions. These sources can be used to find titles and citations for country-specific sources. Paul, Minn. An Introduction to International Law , 4th ed. New York, Aspen Publishers, Principles of Public International Law , 6th ed. Diamond Law Library.
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Guide to Treaty Research. The preliminary examination of the situation of Afghanistan has been already treated as a situation in phase 3 of admissibility. This implies that the preliminary examination has reached its final stage. The potential for opening an investigation may be dependent on the availability of domestic investigation and prosecution, as well as the outcome of those available justice alternatives, if any. The gravity of the crimes allegedly committed by the three separate groups of perpetrators in the territory of Afghanistan seems to be serious enough to satisfy the admissibility threshold under Article 53 1 c of the Rome Statute, for example the approximately 17, civilian casualties between January and June attributed to anti-government armed groups.
Israel imposed a naval blockade on the Gaza Strip up to a distance of 20 nautical miles from the coast, 67 on the high seas.
After this blockade, the Free Gaza Movement was formed to challenge it. The Cambodian-registered vessel was named the Rachel Corrie. By that time, one of the eight vessels had withdrawn due to mechanical difficulties, and the Rachel Corrie was delayed in its departure. Basically, the Prosecutor found that the gravity threshold for admissibility of the situation had not been satisfied for the incident of the Mavi Marmara. The Mavi Marmara was carrying over civilian passengers; nine of the passengers were killed by the IDF during the interception, and another passenger later died of injuries caused by the 31 May incident.
What are the future prospects for the Asian region and the ICC? There are some foggy prospects for both the ICC itself and its relationship with the Asian region. The African States are still in flux. There is a glimmer of hope found the movements of some African countries. After the democratically elected President of Gambia, Mr. On 13 October , the Prosecutor expressed her concern about reported extra-judicial killings of alleged drug dealers and users in the Philippines.
The Sword and the Scales: The United States and International Courts and Tribunals
Meanwhile, the Philippines fervently hopes for the faithful implementation of the system of the Rome Statute. In addition to the current preliminary examination conducted by the OTP on incidents in the Asian region, massive human rights violations in Cambodia may be the next target for a preliminary examination by the OTP. On 7 October , a communication under the Article 15 of the Rome Statute was filed with the OTP with regard to alleged crimes against humanity committed against Cambodian civilians through the Cambodian state apparatus.
Not only is the ICC beginning to move away from cases involving African States; it is also partly moving away from atrocities committed during war. The core values of the Rome Statute and the ICC are unambiguously linked to human dignity and the universality of human rights. The preamble of the Rome Statute stresses such universalism. Especially under the current circumstances of some African States stepping out of the ICC while accusing it of focusing on Africa, Asian regional support for the ICC would dispel growing distrust in the Court.
However, before doing that, the international community and State Parties, especially those of the Asian region, should give non-State Parties of the Asian region confidence about their domestic criminal justice systems in the context of the principle of complementarity of the Rome Statute. In this sense, the ICC is, inherently, not a charitable foundation through which developing countries and post-conflict countries can develop their domestic legal systems. The mandate of the ICC is restricted in this respect.
Although the Trust Fund for Victims was established in accordance with Article 79 for the benefit of victims of crimes within the Court, there is no equivalent fund envisaged by the Statute to offer financial support for the establishment of independent and fair domestic legal systems. While the significance of national and regional particularities and various historical, cultural and religious backgrounds must be borne in mind, it is the duty of States, regardless of their political, economic and cultural systems, to promote and protect all human rights and fundamental freedoms.
Against this background, the Asian region may contribute to the ICC by utilizing lessons from the past and taking the initiative in international criminal justice outreach. In , the ICC will have the 15th anniversary of its creation. By its 20th anniversary, the Asian region or the ICC, which will be marginalised? The result remains to be seen, but the ratification map of the Rome Statute may already imply the marginalisation of the Asian region and the United States in international criminal justice.
Scepticism and timid regionalism will not promote human rights, but undermine confidence in respecting universal human rights in the Asian region. The Asian region must also be a part of the fight against impunity and can enhance the legitimacy and universality of the International Criminal Court through the active participation of Asian states.
See e. See Jianping and Wang , pp. The spokesman for the then Philippines president reportedly said in September that endorsing the Rome Statute would open the floodgates to further malicious allegations, while the security forces of the Philippines already had to deal with internal rebellions. Toon , pp.
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