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This chapter demonstrates that in the field of international criminal law decisions of international courts and tribunals have recurrently been challenged before national courts. Since most international criminal courts and tribunals are either organs of international organizations, such as the International Criminal Tribunal for the former Yugoslavia (ICTY) or the International Criminal Tribunal for Rwanda (ICTR), or enjoy the status of an international organization (International Criminal Court), putting their judgments into question amounts to challenging the acts of an international organization. It is against the backdrop of the obligation of States to cooperate with these international tribunals that national courts have often been called upon to address such challenges, mostly in the context of the transfer of a suspect. In these cases, they have faced a dilemma arising out of the need to secure the independent and efficacious functioning of the international tribunal while simultaneously safeguarding domestic fundamental rights.

The chapter challenges the idea that the ad hoc Tribunals and the ICC represent the ‘“progressive cosmopolitanisation” of international law’. Two interrelated arguments are made: first, the extended reach of legality, as it concerns limitations on the use of force in the international system, remains restricted by factors explained by classic conceptions of state sovereignty and state interests; and second, while instituting legal mechanisms to punish individual violations of international humanitarian law (IHL) challenges historically established norms regarding the way that states use force, constraints on the use of violence are best understood through ‘pluralist’ interpretations of the sovereign right to use force and the sovereign right of non-interference. Thus, while it is clear that new mechanisms of justice have increased the efficacy of IHL, the state remains the primary arbiter with regards to punishing violations of the laws of war

This chapter outlines some of the issues raised by the topic of ‘residual mechanisms’ in the context of the closing down of the ICTY. Starting from a general introduction of the unique features of most contemporary international tribunals which render some type of residual mechanisms necessary, it discusses the functions currently exercised by the ICTY which are commonly perceived as requiring ‘residual mechanisms’ after the end of trial and appellate activities. Following a brief analysis of the most important residual functions, it focuses on two sets of activities: those entailing judicial functions and those relating to the voluminous archives presently held by the ICTY. The discussion highlights the need to strike a balance between two sets of potentially conflicting requirements: the need to respect ‘due process’ and ‘fairness’, and demands for ‘efficiency’ and ‘cost-effectiveness’. These concepts, as well as the inevitable tensions caused by their practical implementation, have long been in the minds of those developing the completion strategy for, and assessing the legacy of, the ICTY. On the basis of a slowly emerging consensus on how to reconcile the various rights and interests involved, the chapter finally ventures to suggest a line of action to be undertaken by the UN and other relevant stakeholders in devising and implementing mechanisms concerning the ICTY's residual functions once this Tribunal's mandate is complete.

The hallmark of the liberal legalist approach to genocide has been criminal prosecution of individuals for their personal participation. Evidence suggests that this legal forum, derived from the model of individual accountability, does not translate well into collective violence undertaken with righteousness. This lesson is suggested by the Auschwitz trials in the Federal German Republic in 1963. More recent criminal prosecutions at the ad hoc tribunals for Rwanda (ICTR) and the former Yugoslavia (ICTY) have a mixed record, as have recent hybrid courts. They have been unimaginably costly, modest in their caseloads, glacially slow, and isolated from the communities where survivors and victims live. They have been inefficient and ineffective. In addition, research suggests that the quality of evidence presented at the courts raises serious questions about their credibility and future utility due to the admission of hearsay, and evidence based on joint criminal enterprise doctrines.

Chapter 2 provides a historical overview of the development of US foreign policy on transitional justice from World War I to the 2010s. It focuses on four influential war crimes tribunals—Nuremberg, the International Criminal Tribunals for the Former Yugoslavia and Rwanda, and the International Criminal Court—because, although they are all courts, they are the institutions where we see the US approach to transitional justice begin to take shape. This review highlights the leadership role taken in the field, the reliance on American legal rights and tradition as a guide for US support, the importance of American lobby groups, and the significance of individuals who took on these issues.

Chapter 6 explains that offence of hate speech as crime against humanity-persecution (CAH-persecution) is fragmented as the ICTR concluded that non-advocacy hate speech deprives the target group of fundamental rights so can be charged as CAH-persecution. But the ICTY disagreed in Prosecutor v. Kordić (2001), finding that non-advocacy hate speech is insufficiently grave to serve as the actus reus for CAH-persecution. The 2007 Media Case Appeals Chamber judgment failed to resolve the split. The ICTR’s approach to instigation, admixing Civil Law and Common Law conceptions, has puzzled jurists regarding its relationship to incitement. Moreover, given an ambiguous “contribution” element, recent jurisprudence has arguably saddled instigation with a “but for” causation requirement and has appended a doctrinally indefensible element to its base “prompting” actus reus: a “different forms of persuasion” requirement. The offense of ordering is problematic because it excludes inchoate liability -- criminalizing commands by a superior only if a subordinate actually carries them out.

If the hate speech–core crime relationship is plagued by internal incoherence with respect to incitement to genocide and instigation and institutional incompatibility as concerns persecution, the problem in reference to war crimes is quite different. In effect, as Chapter 7 demonstrates, the issue is an absence of law. Remarkably, given the inherently violent nature of the battlefield, with the exception of directly ordering grave breaches, international humanitarian law contains no hate speech provisions. The same is true of the relevant international criminal law instruments—neither the ad hoc tribunal statutes nor the Rome Statute contains hate speech provisions in reference to war crimes. Providing an overview of the modern history of hate speech on the battlefield, this chapter explores the deadly implications of this normative vortex and details the relevant legal instruments that evidence it.

The Cold War brought the Nuremberg prosecutions to a premature end. It also no longer seemed possible to create an international penal court to adjudge those individuals, including heads of state, who would commit crimes in violation of the Nuremberg principles. The end of the Cold War unexpectedly led to the resurrection of the Nuremberg paradigm. In 1993, the UN Security Council established the International Criminal Tribunal for the former Yugoslavia (ICTY) to prosecute those accused of committing mass atrocities in the aftermath of the breakup of Yugoslavia. In 1994, the Security Council did the same with the International Criminal Tribunal for Rwanda (ICTR), to adjudge individuals arrested for committing mass atrocities during the one hundred-day genocide in Rwanda. The UN tribunals were granted jurisdiction over three crimes: genocide, war crimes, and crimes against humanity. Both tribunals followed the Nuremberg model. As Louise Arbour, chief prosecutor for the tribunals, stated: “Collectively, we’re linked to Nuremberg. We mention its name every single day.” This chapter examines the work of the ICTY and the ICTR over the last two decades. It compares the work and effectiveness of these modern international criminal tribunals to Nuremberg. It also analyzes the work of the International Criminal Court (ICC), established in 1998 as the first permanent international criminal tribunal in history.

This chapter describes the evolution of gravity in the development of international criminal law’s legal and moral norms. It shows that the regime’s strong reliance on gravity is more a matter of historical circumstance than of moral necessity. Gravity’s centrality in international criminal law was not inevitable. International criminal law could have developed to address crimes like drug trafficking that cross borders, or crimes like piracy that are committed outside any state’s territory. Instead, due to the historical context in which it evolved, international criminal law came to rely for its legitimacy on the idea that it addresses particularly serious crimes.

This chapter provides some context on fairness in international criminal trials. It discusses the establishment of the international criminal tribunals and the growth of international criminal procedure as a discipline. It distinguishes between international and hybrid criminal tribunals and argues that the key factor in determining whether a tribunal is international is whether its founding instrument was part of an international treaty or instrument. It analyses the nature of international criminal procedure against some key theories on the classification of legal systems, and discusses the role of judges in procedural law-making before the tribunals. It argues that, while human rights jurisprudence on the right to a fair trial cannot be ignored in assessments of the fairness of international criminal trials, such standards do not enunciate best practice, given that the jurisprudence only provides illustration on breaches of these rights and look at whether proceedings ‘as a whole’ were fair.

No one seriously disputes that the individual is a subject of international criminal law. But it is much less certain whether international crimes a priori entail individual responsibility, which would be in line with the ‘individualistic’ conception of international legal personality, or whether the responsibility arises a posteriori consistent with the Kelsenian approach. Following a brief account of some historical antecedents, Chapter6 provides a detailed examination of the pivotal post-Second World War trials and the subsequent development of individual responsibility for international crimes by the International Criminal Tribunal for the former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR), and the International Criminal Court (ICC). Moreover, the chapter shows that the common practice of categorizing criminal courts as either international, internationalized, or domestic according to the ‘involvement of the international community’ ultimately rests on the orthodox ‘States-only’ conception of international legal personality.

This chapter presents the salient traits of the crimes against humanity and genocide, and deepens some more controversial issues, such as the definition of the civilian population. It focuses on the origin of the crimes, their constitutive elements and their interpretation, and the practice of international criminal tribunals. Cet article a pour but de présenter généralement les traits saillants des crimes contre l’humanité et du crime de génocide et d’approfondir un peu quelques aspects plus controversés, tels que la définition de la population civile. Il fait le point sur l’origine de ces crimes, leurs éléments ainsi que leur interprétation et sur la pratique des tribunaux pénaux internationaux.

This chapter introduces the Bikindi case along with the book’s main argument. It suggests that questions of sound and listening have been seriously neglected in contemporary legal scholarship and that there is a need, therefore, for a specifically acoustic jurisprudence. As a community of legal thinkers and practitioners, this chapter suggests, we must teach ourselves to listen to law, to attend properly to questions of sound in the administration of justice. The chapter then explains why the Bikindi case provides such a rich starting point in this respect. All legal thought and practice necessarily takes place in and in relation to sound, but what makes Bikindi’s trial particularly compelling for an acoustic jurisprudence is the extent to which it dramatizes this fact. The chapter ends with an overview of the book’s structure.

This chapter introduces the Bikindi case in detail, along with some necessary context. Having offered a brief overview of the Rwandan genocide, it summarizes the history and structure of the International Criminal Tribunal for Rwanda before outlining the specifics of the charges against Bikindi, the three songs at the centre of his trial and the judgments eventually rendered. The chapter then addresses the response to the Bikindi case in the legal literature, in musicology, and in the media. This response, it is suggested, is symptomatic of the deafness of so much contemporary juridical thought. Finally, the chapter details the archival materials on which the study is based, along with the method brought to bear on them.

This chapter considers how Bikindi’s songs were understood by the International Criminal Tribunal for Rwanda (ICTR) on the way to judgment. It begins with the initial presentation of Bikindi and his songs by prosecution and defence, which it is suggested was invariably in one of two ways. As a matter of rhetoric, Bikindi’s songs were consistently treated as either seductive or civilizing. Bikindi himself was either a Siren or Orpheus. The chapter then shows how, in spite of this rhetoric, by the time it came to judgment, music had nevertheless become irrelevant as far as the Trial Chamber was concerned. Doctrinally, all that mattered was the songs’ ‘meaning and interpretation’, and this was taken to be discernible entirely at the level of their lyrics, quite apart from their sound, setting, or performance. The final section of the chapter argues that both approaches involve a profound misunderstanding of how song works.

This chapter is about how Bikindi’s songs featured in the ‘judicial soundscape’. Every appearance of song during the Bikindi case, it is suggested, must be understood in light of the fact that the judicial soundscape is fundamentally oral and discursive, not musical. When Bikindi’s songs were played and witnesses sang at trial the kind of listening encouraged by the International Criminal Tribunal for Rwanda (ICTR) was far from neutral. It both depended on and helped cement the music/lyric, form/content distinction upon which so much of the Tribunal’s thought and practice relied and which left so much to be desired. The chapter ends by considering the one moment during Bikindi’s trial when a musical performance may have succeeded in resisting the Tribunal’s otherwise successful efforts at containment: when, having been offered the opportunity to make a ‘final statement’ at the close of his appeals hearing, for five and a half minutes Bikindi sang.

This chapter explores how the voice figured in the International Criminal Tribunal for Rwanda (ICTR)’s thinking, first at the level of doctrine, then evidence, then rhetoric. Throughout Bikindi’s trial the voice was consistently depicted as language’s instrument, the necessary medium in speech, its acoustic form, and material support. In this respect it performed precisely the same function for the Tribunal as music did in song. When it came to attributing responsibility to Bikindi for the three statements made over a public address system that would eventually found his conviction, however, the voice also did something else. In its apparent proximity to the ideality of thought, the voice operated as a kind of surrogate for and material embodiment of Bikindi’s intentions. It was Bikindi’s voice that guaranteed the expressive chain, as it were, between his intent, words, and the ears of his listeners, and in doing so enabled juridical responsibility to attach.