International Courts and Tribunals

Article 38 – Sources of LawArticle 38 – Sources of Law international conventions, whether general international conventions, whether general

or particular, establishing rules expressly or particular, establishing rules expressly recognized by the contesting states; recognized by the contesting states;

international custom, as evidence of a international custom, as evidence of a general practice accepted as law; general practice accepted as law;

the general principles of law recognized by the general principles of law recognized by civilized nations; civilized nations;

subject to the provisions of Article 59, subject to the provisions of Article 59, judicial decisions judicial decisions and the teachings of the and the teachings of the most highly qualified publicists of the most highly qualified publicists of the various nations, as subsidiary means for the various nations, as subsidiary means for the determination of rules of law.determination of rules of law.

Introduction to Int’l CourtsIntroduction to Int’l Courts There is no good index or digest to There is no good index or digest to

international legal jurisprudenceinternational legal jurisprudence• There is no concept of There is no concept of stare decisis stare decisis in in

international law; therefore courts do not international law; therefore courts do not heavily rely on precedent (although they can heavily rely on precedent (although they can consult their previous decisions under Article consult their previous decisions under Article 38 of the ICJ statute on the sources of 38 of the ICJ statute on the sources of international law)international law)

• The body of case law is substantially smaller The body of case law is substantially smaller than domestic jurisdictions and is therefore than domestic jurisdictions and is therefore more easily locatedmore easily located

• Best place to locate a citation is through a Best place to locate a citation is through a secondary sourcesecondary source

– Law journals, ILM, books, etcLaw journals, ILM, books, etc– Max Planck EncyclopediaMax Planck Encyclopedia

Research guides for int’l courtsResearch guides for int’l courts ICJ Research GuideICJ Research Guide

• http://library.lawschool.cornell.edu/http://library.lawschool.cornell.edu/WhatWeDo/ResearchGuides/ICJ.cfmWhatWeDo/ResearchGuides/ICJ.cfm

SMU guide to International Criminal CourtsSMU guide to International Criminal Courts• http://library.law.smu.edu/Research-Tools/http://library.law.smu.edu/Research-Tools/

Research-Guides/International-Law-(1)/604-Research-Guides/International-Law-(1)/604-International-Criminal-CourtsInternational-Criminal-Courts

ASIL guide to International Criminal LawASIL guide to International Criminal Law• http://www.asil.org/crim1.cfmhttp://www.asil.org/crim1.cfm

UN Documentation Guide for Courts and UN Documentation Guide for Courts and TribunalsTribunals• http://www.un.org/depts/dhl/resguide/http://www.un.org/depts/dhl/resguide/

specil.htm#tribspecil.htm#trib

Where to find cases generallyWhere to find cases generally Max Planck World Courts Digest (for ICJ

decisions): http://www.mpil.de/ww/en/pub/research/details/publications/institute/wcd.cfm

Human Rights Case Digest (for ECHR cases): in print and HeinOnline

Annotated Leading Cases of International Criminal Tribunals (print)

International Legal Materials

International Court of Justice (ICJ)International Court of Justice (ICJ) http://www.icj-cij.orghttp://www.icj-cij.org Established June 1945 by Chapter XIV of the Established June 1945 by Chapter XIV of the

Charter of the United NationsCharter of the United Nations• preceded by the Permanent Court of preceded by the Permanent Court of

International Justice (PCJI), which operated International Justice (PCJI), which operated under the League of Nationsunder the League of Nations

Governed by Governed by • Chapter XIV of the Charter of the UN, Chapter XIV of the Charter of the UN,

• the Statute of the International Court of Justice, the Statute of the International Court of Justice,

• Rules of Practice, and Rules of Practice, and

• useful Practice Directions adopted since 2001useful Practice Directions adopted since 2001

ICJICJ Jurisdiction:Jurisdiction:

• All 192 UN members, plus any non-UN All 192 UN members, plus any non-UN members who desire a permanent association members who desire a permanent association with the court and become parties to the ICJ with the court and become parties to the ICJ StatuteStatute

Two types of casesTwo types of cases• Contentious casesContentious cases

– Legal disputes arising between states involving Legal disputes arising between states involving questions of international lawquestions of international law

• Advisory opinionsAdvisory opinions– Under Article 65 of the ICJ Statute, the Court may Under Article 65 of the ICJ Statute, the Court may

give an advisory opinion on any legal questions at give an advisory opinion on any legal questions at the request of any body authorized to do so by the the request of any body authorized to do so by the CharterCharter

ICJICJ Organization:Organization:

• 15 judges elected by the UN General 15 judges elected by the UN General Assembly for 9-year terms; election for 5 Assembly for 9-year terms; election for 5 judges held every 3 yearsjudges held every 3 years

• In practice, all members of the UN Security In practice, all members of the UN Security Council have a judge on the court Council have a judge on the court representing their countryrepresenting their country

Location:Location:• The Hague, Netherlands The Hague, Netherlands

ICJ publicationsICJ publications Official Reporter:Official Reporter:

• Reports of Judgments, Advisory Opinions and Reports of Judgments, Advisory Opinions and OrdersOrders

– Available in print and on Lexis and WestlawAvailable in print and on Lexis and Westlaw

The documentation for each case includes the document instituting proceedings, written pleadings, oral arguments, correspondence and other relevant documents. These materials are made public, after the Court has given its final decision, in the series Pleadings, Oral Arguments, Documents in the language of submission (English or French) only

Citing ICJ decisionsCiting ICJ decisions

Rule 21.5.1 on page 191 of your Rule 21.5.1 on page 191 of your Bluebook will provide guidanceBluebook will provide guidance• Pay particular attention to the citation of Pay particular attention to the citation of

online materials, Rule 21.5.1(g)online materials, Rule 21.5.1(g)

In-class exerciseIn-class exercise

How does a party terminate a treaty? How does a party terminate a treaty? Has there been any case law on this Has there been any case law on this issue?issue?

Start with a secondary source—i.e., World Court Digest

Best way to search is by browsing the

table of contents

Locate relevant topic

Locate a relevant digest entry and note the ICJ case it comes from

If you don’t like this case, you can browse

other cases on the topic by clicking “next”

Retrieve relevant case from the ICJ website

If you have a judgment year, change the list to

reflect the date of culmination

Be sure you know whether you are looking for a

contentious case or an advisory proceeding

Locate relevant case—in this

example, I found it by judgment

date. You could always do a

CTRL+F for the country involved

as well

Click on whichever type of document you are trying to find—i.e., in our example, we are looking for page 37 of the Judgment, so

we would click on “Judgments” and then select the first PDF

This is an exact copy of what was printed in the official reporter, with the same pagination. It can (and, in my opinion, should) be

considered an authentic full-text source.

International Tribunal for the International Tribunal for the Law of the Sea (ITLOS)Law of the Sea (ITLOS)

http://www.itlos.orghttp://www.itlos.org Established in 1982 by the UN Established in 1982 by the UN

Convention on the Law of the SeaConvention on the Law of the Sea• Did not become operational until August Did not become operational until August

19961996 Governed by: Governed by:

• the UN Convention on the Law of the Sea the UN Convention on the Law of the Sea (UNCLOS)(UNCLOS)

• The ITLOS StatuteThe ITLOS Statute• ““other rules of international law not other rules of international law not

incompatible with the Convention”incompatible with the Convention”

ITLOSITLOS Jurisdiction:Jurisdiction:

• Disputes between UNCLOS member states Disputes between UNCLOS member states that have selected it under Art. 287 of that have selected it under Art. 287 of UNCLOSUNCLOS

• May also receive cases on the basis of other May also receive cases on the basis of other international agreementsinternational agreements

Location:Location:• Hamburg, GermanyHamburg, Germany

Organization:Organization:• 21 judges elected by the members of 21 judges elected by the members of

UNCLOSUNCLOS

ITLOS publicationsITLOS publications Official Reporter:Official Reporter:

• Reports of Judgments, Advisory Opinions and Reports of Judgments, Advisory Opinions and OrdersOrders

– Hardly any libraries actually carry this in print, so Hardly any libraries actually carry this in print, so use the website to locate case law and other use the website to locate case law and other documentsdocuments

ITLOS Yearbook (print)ITLOS Yearbook (print)• contains information about the organization, contains information about the organization,

functioning, competence, procedure, judicial functioning, competence, procedure, judicial work, finances and members of the Tribunal in work, finances and members of the Tribunal in a given year. Included is also a bibliography a given year. Included is also a bibliography listing publications on the Tribunal which have listing publications on the Tribunal which have come to the attention of the Registry during come to the attention of the Registry during the reporting period. Full-text source materials the reporting period. Full-text source materials are reprinted in annexesare reprinted in annexes

Citing ITLOS decisionsCiting ITLOS decisions

Rule 21.5.6 on page 196 of the Rule 21.5.6 on page 196 of the Bluebook gives guidance on citing to Bluebook gives guidance on citing to ITLOS decisions and materialsITLOS decisions and materials• Note that it does give permission explicitly Note that it does give permission explicitly

in this case to cite to the Tribunal’s official in this case to cite to the Tribunal’s official website when print reports are unavailablewebsite when print reports are unavailable

International Criminal TribunalsInternational Criminal Tribunals Special criminal tribunals created by the Special criminal tribunals created by the

UN Security Council acting under Chapter UN Security Council acting under Chapter VII of the UN CharterVII of the UN Charter• International Criminal Tribunal for the former International Criminal Tribunal for the former

Yugoslavia (ICTY)Yugoslavia (ICTY)• International Criminal Tribunal for Rwanda International Criminal Tribunal for Rwanda

(ICTR)(ICTR)• Special Court for Sierra Leone (SCSL)Special Court for Sierra Leone (SCSL)• Serious Crimes Unit of Timor LesteSerious Crimes Unit of Timor Leste• Extraordinary Chambers in the Courts of Extraordinary Chambers in the Courts of

CambodiaCambodia• Special Court for LebanonSpecial Court for Lebanon

Citing to Criminal TribunalsCiting to Criminal Tribunals

Follow rule 21.5.7 on page 197 of the Follow rule 21.5.7 on page 197 of the BluebookBluebook• Citation format is slightly different than Citation format is slightly different than

traditional cites, as it relies on the case traditional cites, as it relies on the case number and the relevant paragraph as number and the relevant paragraph as opposed to the volume and page number opposed to the volume and page number of a particular caseof a particular case

ICTYICTY http://www.icty.org/http://www.icty.org/ Established May 23, 1993 by UN Established May 23, 1993 by UN

Security Resolution 827/1993Security Resolution 827/1993 Jurisdiction:Jurisdiction:

• Crimes committed since 1991 in the territory Crimes committed since 1991 in the territory of the former Yugosloviaof the former Yugoslovia– Grave breaches of  Geneva Conventions of 1949 Grave breaches of  Geneva Conventions of 1949 – violations of the laws of war; violations of the laws of war; – genocide; genocide; – crimes against humanitycrimes against humanity

ICTYICTY Organization:Organization:

• 16 permanent judges and up to 9 ad litem16 permanent judges and up to 9 ad litem Location:Location:

• The Hague, NetherlandsThe Hague, Netherlands Official Languages:Official Languages:

• EnglishEnglish• FrenchFrench• (unofficial) Serb-Croat(unofficial) Serb-Croat

ICTY publicationsICTY publications Official Reporter;Official Reporter;

• Judicial Reports (print)Judicial Reports (print)– reprint all public indictments as well as the reprint all public indictments as well as the

decisions and judgments rendered as of 1994decisions and judgments rendered as of 1994 ICTY website is the best place to find ICTY website is the best place to find

cases and related documentscases and related documents Westlaw: INT-ICTY databaseWestlaw: INT-ICTY database ICTY Yearbook (print)ICTY Yearbook (print)

• provides information about the work, members provides information about the work, members (with biographies), jurisdiction, organization, (with biographies), jurisdiction, organization, functioning and activities of the Tribunal in a functioning and activities of the Tribunal in a given year. Included is a bibliography which given year. Included is a bibliography which lists publications relating to the Tribunal lists publications relating to the Tribunal released during the reporting periodreleased during the reporting period

ICTRICTR http://www.ictr.org/http://www.ictr.org/ Established November 8, 1994 by UN Established November 8, 1994 by UN

Security Resolution 955/1994Security Resolution 955/1994 Jurisdiction:Jurisdiction:

• Crimes committed between January 1 and Crimes committed between January 1 and December 1994 in the territory of RwandaDecember 1994 in the territory of Rwanda–Genocide;Genocide;–Crimes against humanity;Crimes against humanity;–Serious violations of the Geneva Serious violations of the Geneva

Convention of 1949Convention of 1949

ICTRICTR

Organization:Organization:• 16 permanent and 18 ad litem judges16 permanent and 18 ad litem judges

Location:Location:• Arusha, TanzaniaArusha, Tanzania

Official Languages:Official Languages:• EnglishEnglish• FrenchFrench• (unofficial) Kinyarwanda(unofficial) Kinyarwanda

ICTR publicationsICTR publications No official reporter; use websiteNo official reporter; use website

• Unofficial reporter: Unofficial reporter: International Criminal International Criminal Tribunal for Rwanda Reports of Orders, Tribunal for Rwanda Reports of Orders, Decisions and Judgements, 1995-1997Decisions and Judgements, 1995-1997 (print)(print)

Cases available on Westlaw in the INT-Cases available on Westlaw in the INT-ICTR databaseICTR database

Global War Crimes Tribunal Collection Global War Crimes Tribunal Collection (print)(print)• includes trial transcripts, selected full-text includes trial transcripts, selected full-text

judgments, and other materials.judgments, and other materials.

SCSLSCSL

http://www.sc-sl.org/http://www.sc-sl.org/ Established on August 14, 2000 by UN Established on August 14, 2000 by UN

Security Resolution 1315/2000, and Security Resolution 1315/2000, and subsequently verified by the Special subsequently verified by the Special Court Agreement, signed January 16, Court Agreement, signed January 16, 20022002

Jurisdiction:Jurisdiction:• Crimes committed since Nov. 30, 1996 in Crimes committed since Nov. 30, 1996 in

the territory of Sierra Leonethe territory of Sierra Leone

SCSLSCSL Organization:Organization:

• At least 8, and no more than 11 judgesAt least 8, and no more than 11 judges Location:Location:

• Freetown, Sierra Leone Freetown, Sierra Leone Official Languages:Official Languages:

• EnglishEnglish• (unofficial) Krio(unofficial) Krio

SCSL publicationsSCSL publications No official reporter; use websiteNo official reporter; use website Digest of Jurisprudence of the Special Digest of Jurisprudence of the Special

Court for Sierra Leone 2003 – 2005  Court for Sierra Leone 2003 – 2005  Consolidated Legal Texts for the Consolidated Legal Texts for the

Special Court for Sierra Leone Special Court for Sierra Leone A print source for case law is volume 9, A print source for case law is volume 9,

“The Special Court for Sierra Leone “The Special Court for Sierra Leone 2003-2004” from the series 2003-2004” from the series Annotated Annotated Leading Cases of International Criminal Leading Cases of International Criminal TribunalsTribunals

In-class exercise 2In-class exercise 2 5 February 2010 – The leader of the Serb

Radical Party was today charged with contempt of court by the United Nations war crimes tribunal for the Balkans over allegedly revealing details about protected witnesses in his own trial.• Find this case—who is the accused? [Find this case—who is the accused? [Hint: Hint:

He’s just been accused of the same thing He’s just been accused of the same thing again todayagain today]]

• What rule of procedure was this motion What rule of procedure was this motion issued under?issued under?

• When was this rule last amended?When was this rule last amended?

???

Easiest way to access document is follow the link to the news story:

This link will bring you to the full text of the contempt of court order

Or, if you want to access not just this document but ALL the documents related to the trial of Šešelj, click on “The Cases” to

locate his trial and the related documents

You can search for cases in a variety of ways, indicated below

Name Case Number Status of Trial

Click on “Legal Documents” to

access all related

documents, including

proceedings, orders, and judgments

To find out which rule this motion was filed under, pull up the Trial Decision (linked from the News page or found in Legal Documents)

To locate Rules of Procedure, return to homepage and select Legal Library

Click on link for “Rules of Procedure and Evidence”

Always be sure you know which version of the Rules you need—i.e., if your case refers to an earlier revision of the Rules, you will need to consult that version, not the most current version. In our case, Rule 77 is current, so we can select the current Revision

Here we see the history of this Rule

International Criminal Court (ICC)International Criminal Court (ICC) http://www.icc-cpi.inthttp://www.icc-cpi.int Established in 1998 by the Rome Statute, Established in 1998 by the Rome Statute,

entered into force on July 1, 2002entered into force on July 1, 2002 Governed by:Governed by:

• The Rome Statute of the International Criminal The Rome Statute of the International Criminal CourtCourt

• Rules of Procedure and Evidence, adopted by Rules of Procedure and Evidence, adopted by the UN General Assemblythe UN General Assembly

• Elements of Crimes Elements of Crimes – specifying the interpretation and application to be specifying the interpretation and application to be

given to the crimes that fall under the court’s given to the crimes that fall under the court’s jurisdictionjurisdiction

ICCICC Jurisdiction:Jurisdiction:

• Permanent and independent court with Permanent and independent court with criminal jurisdiction over persons accused of criminal jurisdiction over persons accused of committing one or more of the four categories committing one or more of the four categories of crimes enumerated in the statute:of crimes enumerated in the statute:

– GenocideGenocide– Crimes against humanityCrimes against humanity– War crimesWar crimes– aggressionaggression

• Activities of the court are “complementary” to Activities of the court are “complementary” to domestic courts; the ICC exercises its domestic courts; the ICC exercises its jurisdiction only when national courts are jurisdiction only when national courts are unable or unwilling to bring to justice a person unable or unwilling to bring to justice a person accused of the crimes defined under the accused of the crimes defined under the statutestatute

ICCICC Organization:Organization:

• 18 judges elected by the member state 18 judges elected by the member state parties for 9-year termsparties for 9-year terms

Location:Location:• The Hague, NetherlandsThe Hague, Netherlands

NOTE: NOTE: • There are 108 parties that have agreed to There are 108 parties that have agreed to

be bound by the ICC’s jurisdiction; the US be bound by the ICC’s jurisdiction; the US is NOT ONE OF THEMis NOT ONE OF THEM

ICC publicationsICC publications Official Reporter:Official Reporter:

• Official Journal of the International Criminal Official Journal of the International Criminal CourtCourt

– Electronic version only at the present; no cases Electronic version only at the present; no cases have yet been decided on, so further publications have yet been decided on, so further publications may develop as the body of case law developsmay develop as the body of case law develops

U.N. Conference of Plenipotentiaries on U.N. Conference of Plenipotentiaries on the Establishment of an International the Establishment of an International Criminal CourtCriminal Court• conference documents including agenda, final conference documents including agenda, final

document, drafts, letters, and related materials document, drafts, letters, and related materials at http://www.un.org/icc/index.htm. at http://www.un.org/icc/index.htm.

ICC – Legal Tools databaseICC – Legal Tools database

http://www.legal-tools.org/http://www.legal-tools.org/ Aims to provide a comprehensive Aims to provide a comprehensive

research database for all matters research database for all matters related to international criminal law, related to international criminal law, including international organizations, including international organizations, tribunals, courts, as well as national tribunals, courts, as well as national courts and legislationcourts and legislation

Excerise # 3Excerise # 3

Using the ICC’s Legal Tools database, Using the ICC’s Legal Tools database, can you locate a copy of Armenia’s can you locate a copy of Armenia’s Criminal Procedure Code?Criminal Procedure Code?• Are they in fact a party to the ICC?Are they in fact a party to the ICC?

Human Rights courtsHuman Rights courts European Court of Human RightsEuropean Court of Human Rights

• http://www.echr.coe.int/http://www.echr.coe.int/• NOTE: this is NOT a European Union courtNOTE: this is NOT a European Union court

—it is run by the Council of Europe and —it is run by the Council of Europe and governed by the European Convention on governed by the European Convention on Human Rights (213 U.N.T.S. 222)Human Rights (213 U.N.T.S. 222)

Inter-American Court of Human RightsInter-American Court of Human Rights• http://www.corteidh.or.crhttp://www.corteidh.or.cr• Run by the Organization of American States, Run by the Organization of American States,

governed by the American Convention on governed by the American Convention on Human Rights (1144 U.N.T.S. 123)Human Rights (1144 U.N.T.S. 123)

ECHRECHR Use HUDOC to search for case lawUse HUDOC to search for case law

Best way to search is by limiting to country and then

doing full text for a distinctive term—i.e. “abortion”

ECHRECHR

Like the other sites mentioned here, the Like the other sites mentioned here, the ECHR website contains a wealth of ECHR website contains a wealth of documents, both procedural and analyticaldocuments, both procedural and analytical

ECHR website also contains a yearly ECHR website also contains a yearly subject matter index to cases tried there subject matter index to cases tried there during that year:during that year:• http://cmiskp.echr.coe.int/gentkpss/Gen-http://cmiskp.echr.coe.int/gentkpss/Gen-

Recent-CLIN-Index.aspRecent-CLIN-Index.asp

Exercise #4Exercise #4

How many cases were tried in the How many cases were tried in the ECHR in 2009 dealing with applicability ECHR in 2009 dealing with applicability of Article 8 of the European Convention of Article 8 of the European Convention of Human Rights?of Human Rights?• What right does Article 8 protect?What right does Article 8 protect?