International law, Sixth edition
parties and with the consent of the Security Council, that are seen as con-
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International Law MALCOLM N. SHAW
parties and with the consent of the Security Council, that are seen as con- nected in accordance with the principles of criminal justice and are of a nature and gravity similar to the attack of 14 February 2005. 171 The Tri- bunal is to be composed of the Chambers, the Prosecutor, the Registry and the Defence Office. The Chambers, to be composed of between eleven and fourteen independent judges, are to consist of a Pre-Trial Judge, a Trial Chamber and an Appeals Chamber. A single international judge is to serve as Pre-Trial Judge, while three judges are to serve in the Trial Cham- ber, being one Lebanese judge and two international judges. Five judges are to serve in the Appeals Chamber, of whom two are to be Lebanese and three international judges. 172 The Prosecutor and the Registrar are to be appointed by the UN Secretary-General after consultation with the Lebanese government, while the Head of the Defence Office is to be ap- pointed by the Secretary-General after consultation with the President of the Tribunal. 173 The applicable law is Lebanese criminal law and the Tribunal is to have concurrent jurisdiction with Lebanese courts and have primacy over them. 174 The Iraqi High Tribunal 175 The Governing Council of Iraq was authorised by the Coalition Pro- visional Authority on 10 December 2003 to establish the Iraqi Special 171 Article 1 of the Statute. 172 Articles 7 and 8 of the Statute. 173 Articles 11, 12 and 13 of the Statute. The Registrar was appointed on 11 March 2008: see www.un.org/apps/news/story.asp?NewsID=25925&Cr=Leban&Cr1. 174 Articles 2 and 4 of the Statute. 175 See e.g. Scharf, ‘The Iraqi High Tribunal’, Cryer et al., Introduction to International Crim- inal Law, p. 160; I. Bantekas, ‘The Iraqi Special Tribunal for Crimes against Humanity’, 54 ICLQ, 2004, p. 237; M. C. Bassiouni, ‘Post-Conflict Justice in Iraq: An Appraisal of the Iraq Special Tribunal’, 38 Cornell International Law Journal, 2005, p. 327; M. Sissons and A. S. Bassin, ‘Was the Dujail Trial Fair?’, 5 Journal of International Criminal Justice, 2007, p. 272; G. Mettraux, ‘The 2005 Revision of the Statute of the Iraqi Special Tribunal’, 5 Journal of International Criminal Justice, 2007, p. 287; S. de Bertodano, ‘Were There More Acceptable Alternatives to the Iraqi High Tribunal?’, 5 Journal of International Criminal Justice, 2007, p. 294. i n d i v i d ua l c r i m i na l r e s p o n s i b i l i t y 429 Tribunal to hear crimes alleged against the former regime of Saddam Hussein. 176 A revised Statute was enacted in 2005 and the tribunal re- named the Iraqi High Tribunal. The Tribunal has jurisdiction over geno- cide, crimes against humanity and war crimes, the definitions of which are based upon the provisions of the Rome Statute and newly incorpo- rated into Iraqi law, committed between 16 July 1968 and 1 May 2003 177 by Iraqi nationals or residents. 178 Persons accused of committing crimes within the jurisdiction of the Tribunal bear individual criminal respon- sibility. 179 The Tribunal has concurrent jurisdiction with national courts but primacy over them. Article 6(b) of the Statute provides that the Pres- ident of the Tribunal shall be required to appoint non-Iraqi nationals to act in advisory capacities or as observers to the Trial Chambers and to the Appeals Chamber. The role of the non-Iraqi nationals is stated to be to provide assistance to the judges with respect to international law and the experience of similar tribunals (whether international or otherwise), and to monitor the protection by the Tribunal of general due process of law standards. In appointing such non-Iraqi experts, the President of the Tribunal is entitled to request assistance from the international commu- nity, including the United Nations. However, the judges and prosecutors of the Tribunal are all Iraqi nationals. Criticisms have been made of the Tribunal, including the fact that it can impose the death penalty, as for example with regard to Saddam Hussein upon his conviction in the Dujail case. 180 The Serbian War Crimes Chamber On 1 July 2003, the Serbian National Assembly adopted a law establishing a specialised War Crimes Chamber within the Belgrade District Court to prosecute and investigate crimes against humanity and serious violations of international humanitarian law as defined in Serbian law. A War Crimes Prosecutor’s Office was established in Belgrade. The Chamber consists of two panels of three judges each selected from the Belgrade District Court 176 Order No. 48. 177 The dates reflect the commencement of the Ba’ath party control of Iraq and the end of the Saddam Hussein regime. 178 Articles 1 and 11–14 of the Statute of the Tribunal. 179 Article 15. 180 See e.g. N. Bhuta, ‘Fatal Errors: The Trial and Appeal Judgments in the Dujail Case’, 6 Journal of International Criminal Justice, 2008, p. 39; M. P. Scharf and M. A. New- ton, ‘The Iraq High Tribunal’s Dujail Trial Opinion’, ASIL Insight, 18 December 2006, www.asil.org/insights/2006/12/insights061218.html, and Human Rights Watch report on the Dujail trial, http://hrw.org/english/docs/2007/06/22/iraq16230.htm. 430 i n t e r nat i o na l l aw or seconded from other courts, and two investigative judges. It is, however, essentially a national court. 181 Download 7.77 Mb. Do'stlaringiz bilan baham: |
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