Supranational Criminal Law: A System Sui Generis

B́a trước
Roelof Haveman, Olga Kavran, Julian Nicholls (LL. M.)
Intersentia nv, 2003 - 370 trang
What exactly is the context in which all aspects of this new field of criminal law have to be interpreted? What does the principle of legality mean in the context of supranational criminal law? Which tradition lies at the basis of this new law system? Is supranational criminal law as it grows the result of a deliberate policy, tending towards a coherent system? Or is it merely the result of crisis management?
 

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A SYSTEM SUI GENERIS
1
A System Sui Generis
3
3 Topics
6
THE CONTEXT OF THE LAW
9
2 The Tribunals
10
22 Former Yugoslavia Rwanda
14
23 International Criminal Court
17
24 Conclusion
19
Ad hoc Tribunals
179
ICC legislation
183
4 Right to Be Tried by An Independent and Impartial Tribunal Established by Law
186
411 Preestablishment
187
412 Nonobservance of certain legal codes
190
413 Comments of the Author
191
42 Are the ad hoc Tribunals independent?
195
i The Judges
196

3 Interpretation of the Law
20
4 The Facts
22
5 National Law V Supranational Law
25
6 Criminal Law V International Law
31
7 Common Law V Civil Law
33
8 Summary and Conclusion
37
THE PRINCIPLE OF LEGALITY
39
2 The Principle of Legality in Civil and Common Law
40
21 Lex Scripta et Certa
41
22 Nonretroactivity
44
23 Analogy
45
24 Common features
49
3 Background of the Principle of Legality
50
4 International Humanitarian Law
53
Nullum Crimen Sine Lege
57
52 The ICC
60
Nulla Poena Sine Lege
63
61 The Rules on Punishment
64
62 Nulla Poena
66
63 Former Yugoslavia
68
Conclusion
72
Rules of Procedure and Evidence
73
8 Summary and Conclusion
75
LEGAL PROCEDURES AT THE INTERNATIONAL CRIMINAL COURT
79
2 A Retrospective Look At Constitutional Development in the West Regarding Criminal Procedures
81
22 Criminal Procedures and European Constitutional Law
85
23 A Binding Element is Partially Lacking for an International Criminal Procedure
89
the Refusal to Globalise
90
25 The Problem of Language and Judicial Culture
91
the Investigation Phase
96
32 PreTrial Chamber
98
33 Rights during the Investigation
100
34 Review of the Chosen Procedure
101
the Trial Phase
104
42 The Right of Access to a Jury
106
43 The Ban on Default Procedures
108
44 The Expediency of the Guilty Plea
109
45 The Law of Evidence in America
112
46 European Evidential Law
113
47 The Exclusionary Rule in the European Tradition
115
48 The Law of Evidence in the Statute
117
49 Review of Choices made Concerning the Trial Phase
119
the Appeal Phase
120
52 Background
121
53 Evaluation
124
6 Judging the Choices Made
125
THE SUI GENERIS RULES OF PROCEDURE AND EVIDENCE
129
2 General Outline of the Rules
130
22 Main Features of the Current Procedure
133
222 Prosecutorial Discretion Guilty Plea Immunity and Plea Agreement
135
223 Victims and Witnesses
136
224 Written and Reasoned Judgements and Appellate Review
137
225 Rule 61 Hearing
138
226 Other features
139
3 Major Changes to the Criminal Procedure System
140
32 Guilty Plea and Plea Agreement
142
33 PreTrial Proceedings
145
34 Witness Interrogation and Presentation of Evidence
150
35 Other Rules Increasing the Power of the Judges
151
36 Other Amendments Inspired by the Inquisitorial Model of Criminal Procedure
153
4 Rational Development Or Crisis
155
42 Pretrial Procedure
157
43 Evidence
158
44 Other amendments inspired by the Inquisitorial Model and Increasing the Judges Powers
160
52 Illegal arrest
161
6 Conclusion Some Observation
162
DEFENCE AND FAIR TRIAL
167
2 The International Standards of Fairness
169
3 The Overall Rights to A Fair Trial
172
311 Subject to Art 22 of the Statute
173
312 Omissions
174
313 Lack of protection for the suspect
175
ii The Prosecutors
197
422 Operation of the ad hoc Tribunals
198
i Pressure from local governments
199
ii Pressure from international institutions
202
iii Pressure from the UN organs
203
iv Pressure from the watching international community
204
43 Are the judges of the ad hoc Tribunals impartial?
205
ICC legislation
209
5 Presumption of Innocence
211
52 Practice of the ad hoc Tribunals
213
ICC legislation
216
6 Equality of Arms
217
61 The scope of equality of arms
218
62 Position of the ad hoc Tribunals
219
622 Right to assistance of competent counsel
221
i Personal strength
222
ii Institutional strength
227
623 Right of access to adequate resources
229
ICC legislation
231
7 Concluding Remarks
232
EVIDENCE HEARSAY AND ANONYMOUS WITNESSES
239
2 The Problem with Hearsay
240
Reliability
241
Policy
244
3 The Adversarial System
247
32 Strengths
248
33 Weaknesses
249
34 The Hearsay Rule Crossexamination and the Right to Confrontation
252
342 The Intersection of the Hearsay Rule and the Right to Confrontation
253
343 The Intersection of the Right to Confrontation and Witness Anonymity
254
4 The Inquisitorial System
255
42 Strengths
258
43 Weaknesses
260
44 The Hearsay Rule Crossexamination and the Right to Confrontation
263
443 The Intersection of the Right to Confrontation and Witness Anonymity
264
Kostovski and beyond
266
52 Limitations on the ECHR Right to Confrontation
269
the ECHR Right to Confrontation
271
Trial Proceedings in the ICTY
272
62 Hearsay the Right to Confrontation Crossexamination and Witness Protection
274
Tadic
278
63 Hearsay and Affidavit Evidence
289
Tadic and beyond a Rejection of the Hearsay Rule
290
Kordic Introduction of the Dossier into the ICTY system
296
634 Assessment
297
7 The Future Permanent International Criminal Court
298
72 Hearsay
299
8 Conclusion
300
AMNESTY AND THE IMPLEMENTATION OF THE ICC
305
The Duty to Prosecute Under International Law
307
22 An Explicit Duty to Prosecute in Treaties
308
23 A General Duty to Prosecute in Human Rights Treaties
311
24 Customary International Law and the Duty to Prosecute
313
25 Conclusion
314
3 Amnesties Versus Prosecutions A Moral Perspective
315
33 Does Justice Always Call for Prosecutions?
318
34 Border between Prosecutions and Amnesties
320
4 The Rome Statute
322
5 Amnesties in the Context of Ratification of the Rome Statute
325
52 Review of the Statute for Compatibility with the Constitution
326
6 Country Studies
328
62 Costa Rica
331
63 Ecuador
332
64 Uruguay
333
65 The Netherlands
336
66 France
338
67 South Africa
339
68 Analysis of the Country Studies
340
7 Conclusion
342
EPILOGUE A SYSTEM SUI GENERIS
347
LITERATURE
353
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Giới thiệu về tác giả (2003)

Roelof H. Haveman (LLM Erasmus University Rotterdam, 1983; PhD Utrecht University, 1998) currently works as a rule of law expert in the embassy of the Netherlands in Bamako, Mali, after having served for two years as a Senior Policy Advisor Rule of Law within the Ministry of Foreign Affairs in the Hague.
Before, he worked as an independent Rule of Law consultant on short assignments in Africa, inter alia between June 2010 and December 2012 for IDLO's office in South Sudan on technical assistance to the judiciary, the College of Law of the University of Juba, the Legal Training Institute and the Ministry of Justice. In between, as of September 2011 until March 2012, he worked in Côte d'Ivoire, assisting the Ministry of Justice. Since its start early 2008 until May 2010 he was the Vice Rector in charge of Academic Affairs and Research of the ILPD/Institute of Legal Practice and Development in Rwanda, the post-graduate training institute for the justice sector. He lived and worked in Rwanda as from 2005, initially for the Dutch Center for International Legal Cooperation (CILC), supporting two law schools in strengthening their academic and managerial capacity and quality, including curriculum development. In addition, in 2007-2008 he provided technical assistance in organisational reform for the LDC-Law Development Centre in Uganda. Since its establishment in 2002 and until 2005, he was the programme-director of the Grotius Centre for International Legal Studies at Leiden University's Campus in The Hague. Until the summer of 2005 he was an associate professor of (international) criminal law and criminal procedure at Leiden University and fellow of the E.M. Meijers Institute of Legal Studies of the Faculty of Law, Leiden University, the Netherlands. In 1998 he defended his PhD-dissertation on the 'Conditions for Criminalizing Trafficking in Women' (in Dutch) at Utrecht University, the Netherlands. Over the past 20 years he published many articles and a number of books on gender-related crimes, trafficking in persons and prostitution, the principle of legality (e.g in the context of customary - adat - criminal law in modern Indonesia), Rwanda gacaca, supranational criminology and victimology, and comparative criminal law. He is the editor in chief of the series Supranational Criminal Law and editor in chief of the electronic Newsletter Criminology and International Crimes.

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