International law, Sixth edition
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International Law MALCOLM N. SHAW
Hybrid courts and other internationalised domestic
courts and tribunals 117 In addition to the temporary and geographically limited international criminal tribunals and the permanent International Criminal Court, a new style of judicial institution has made an appearance recently in which both international and national elements co-exist in varying combina- tions. Such institutions, which may for convenience be termed hybrid courts, exist primarily to enhance legitimacy and increase acceptability both locally and internationally, invariably in difficult post-conflict situa- tions where reliance upon purely domestic mechanisms carries significant political risks or costs. However, as will be seen, there are a number of models adopted which differ as to formal legal origin, constitutional sta- tus, applicable law and structure. Some of these mechanisms may more 113 Article 68. 114 Article 39(2)(b)(i). 115 Article 81. Either party may appeal against decisions as to, for example, jurisdiction or admissibility; decisions as to the grant or denial of the release of the person being investigated or prosecuted; and decisions of the Pre-Trial Chamber to act on its own initiative under article 56(3): see article 82. 116 Article 83. The revision of the sentence can be requested if new evidence has been dis- covered which was not available at the time of the trial and is sufficiently important or decisive for the Appeals Chamber to revise or amend the sentence: see article 84. 117 See e.g. Internationalized Criminal Courts (eds. C. P. R. Romano, A. Nollkaemper and J. K. Kleffner), Oxford, 2004; Cryer et al., Introduction to International Criminal Law, chapter 9; Schabas, The UN International Criminal Tribunals; and L. A. Dickinson, ‘The Promise of Hybrid Courts’, 97 AJIL, 2003, p. 295. 418 i n t e r nat i o na l l aw correctly be termed internationalised courts or tribunals 118 as the balance between the international and the domestic tips far to the latter. They are essentially domestic courts applying domestic law, but with a heightened international element in terms, for example, of their function or origins, the basis of their applicable law or the use of international experts. Some courts are difficult to place along the spectrum, but together this category marks an extension of international concern and involvement in issues fo- cusing upon individual criminal responsibility for what are international crimes, even if subsequently incorporated into domestic law. The Special Court for Sierra Leone The Special Court for Sierra Leone was established, following a partic- ularly violent civil war, by virtue of an agreement between the UN and Sierra Leone dated 16 January 2002, pursuant to Security Council res- olution 1315 (2000), in order to prosecute persons bearing ‘the greatest responsibility for serious violations of international humanitarian law and Sierra Leonean law committed in the territory of Sierra Leone since 30 November 1996’ on the basis of individual criminal responsibility. 119 However, it is stipulated that any transgressions by peacekeepers and re- lated personnel present in the country by virtue of agreements with the UN or other governments or regional organisations or otherwise with the consent of the Sierra Leonean government are within the ‘primary jurisdiction’ of the sending state. 120 The Special Court consists of the Chambers (two Trial Chambers and an Appeals Chamber), the Prosecutor and the Registry. Three judges serve 118 See for this terminology, M. P. Scharf, ‘The Iraqi High Tribunal’, 5 Journal of International Download 7.77 Mb. Do'stlaringiz bilan baham: |
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