International Criminal Justice on Trial

The ICTY and ICTR Case Referral Practice to National Courts and Its Possible Relevance for the ICC

2016. 1 farbige Bildtafel; XVIII, 232 S.
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ISBN 978-3-428-15136-3
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The 20th century has witnessed the rapid proliferation of a variety of international and internationalized criminal courts and tribunals. Their creation has been justified by the international community's resolve to punish perpetrators of the gravest crimes so as to contribute to restoring peace and justice to (post-)conflict regions. However, the specific contours of the relationship between these international courts and tribunals and relevant national accountability mechanisms continue to be the subject of some uncertainty, not least in light of the fact that national courts have increasingly begun to prosecute international crimes. Given the sheer scale of the crimes committed and the limited resources of international judicial institutions, it is crucial that these courts function in parallel with local courts in a pluralistic, integrative system of international criminal law. At the same time, parallel judicial activities are giving rise to an array of complex legal conundrums.

Conceived first and foremost as a case-reduction mechanism, the ICTY and ICTR case referral practice – as part of the UN Security Council Completion Strategy – is a novel experiment in the laboratory of international criminal justice. It illustrates in a highly concrete manner various legal challenges arising from pluralistic accountability mechanisms in the prosecution of international crimes. By analysing the legal problems highlighted by this practice, identifying possible normative and contextual root causes, and formulating potential solutions that may also be relevant for the International Criminal Court (the latter of which is contemplating its own »completion« scenarios), the author sheds light on the shifting dynamic between the main actors involved in the prosecution of international crimes.


Chapter 1: The international criminal courts and tribunals and their relationship to national accountability mechanisms

The core mandates and current practice of the ICTY and ICTR – The core mandate and current practice of the ICC

Chapter 2: The referral practice to national courts as a crucial component of the ICTY and ICTR Completion Strategy and legal problems resulting from its implementation

Origins of the Completion Strategy – Goals of the Completion Strategy – The Completion Strategy's referral practice: features and legal problems – The ICTY and ICTR experiences compared

Chapter 3: Possible root causes of legal problems resulting from the implementation of the ICTY/ICTR referral practice to national courts

Normative factors: discrepancies in applicable legal norms – Contextual factors: national context as a crucial criterion for referral

Chapter 4: The ICTY/ICTR referral practice: impact and possible solutions

Impact of the ICTY/ICTR referral practice – Possible solutions to some legal problems identified

Chapter 5: ICTY/ICTR referral practice: What relevance for the ICC?

Relevance despite different jurisdictional frameworks – Referral regulations in the Rome Statute of the ICC – Referral as an illustration of complementarity in practice: difficulties and prospects – Some possible lessons learned from the ICTY and ICTR referral practice for the ICC

Conclusion and outlook


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