We use cookies to enhance your experience on our website. By continuing to use our website, you are agreeing to our use of cookies. You can change your cookie settings at any time.
Find out more
Jump to Content
Jump to Main Navigation
User Account
Personal Profile:
Sign in
or
Create
See all online law products
More
About
Subscriber Services
Guided Tour
FAQs
Help
Contact Us
Search
Browse all
Content type
Case reports
International court decisions
Domestic court decisions
European court cases
Arbitral cases
Commentary and analysis
Book content
Encyclopedia entries
Notes
International instruments and materials
Treaties
Supporting instruments
Institutional rules
Resolutions
Declarations
Subject
Air law and law of outer space
Diplomacy and consular relations
History of international law
Human rights
Immunities
Individuals and non-state actors
International co-operation
International courts and tribunals
International criminal law
International economic law
International environmental law
International humanitarian law
International law and international relations
International organizations
International responsibility
Law of the sea
Law of treaties
Relationship between international and domestic law
Settlement of disputes
Sources, foundations and principles of international law
Statehood, jurisdiction of states, organs of states
Territory
Theory of international law
Use of force, war, peace and neutrality
Author
Geographic region
Geographic Regions
Africa
Americas
Asia
Europe
Oceania
Organization
Organizations/Institutions
American Organizations/Institutions
African Organizations/Institutions
Asian Organizations/Institutions
European Organizations/Institutions
International Organizations/Institutions
My Content
(1)
Recently viewed
(1)
Dedication
My Searches
(0)
Back to Results
Print
Save
Cite
Email
Share
Subscriber sign in
Forgotten your password?
Don't have an account?
Sign in via your Institution
Sign in with your library card
View translated passages only
Oxford Law Citator
Contents
Expand All
Collapse All
Treatise on International Criminal Law - Volume III: International Criminal Procedure by Ambos, Kai (11th August 2016)
Preliminary Material
Dedication
Preface
Contents
Table of Cases
International Courts and Tribunals
European Commission of Human Rights
European Court of Human Rights
European Court of Justice
Extraordinary Chambers in the Courts of Cambodia
Human Rights Committee
Inter-American Court of Human Rights
ILO Administrative Tribunal
International Court of Justice
International Criminal Court
International Criminal Tribunal for Rwanda
International Criminal Tribunal for the Former Yugoslavia
International Military Tribunal for the Far East
Mechanism for International Criminal Tribunals
Permanent Court of International Justice
Special Court for Sierra Leone
Special Tribunal for Lebanon
US Military Commission, Manila
US Nuremberg Military Tribunals
National Cases
Colombia
France
Germany
Constitutional Court:
Federal Court of Justice:
State Supreme Courts:
Kosovo
South Africa
United Kingdom
United States
Table of Legislation
International Legislation
National Legislation
Argentina
Australia
Austria
Bangladesh
Brazil
Cambodia
Canada
Colombia
Denmark
East Timor
France
Germany
Indonesia
Iraq
Israel
Italy
Japan
Kenya
Kosovo
Netherlands
Sierra Leone
Spain
Switzerland
Uganda
United Kingdom
United States
List of Abbreviations
List of Figures
Main Text
Ch.I The Framework of International Criminal Procedure: Conceptual Foundations, Origins, Goals, and Rights
A Conceptual foundations
(1) ‘Civil Law’ and ‘Common Law’—The division into legal families
(a) Civil Law
(b) Common Law
(2) Theories of criminal procedure
(a) Adversarial and inquisitorial
(b) Other models of criminal procedure
B The history of international criminal procedure
(1) The origins of international criminal procedure
(a) Nuremberg
(b) Tokyo
(c) Post-Nuremberg and post-Tokyo trials
(d) Problems and legacies of the IMT and IMTFE
(2) The influence of Nuremberg and Tokyo on the procedure of international criminal tribunals
(a) The development of procedural rules at the ad hoc tribunals
(b) The development of procedural rules at the ICC
(c) The development of procedural rules at the ‘mixed’ tribunals
(i) Procedural rules at tribunals that are part of a transitional UN administration or a regional organization
(1) East Timor (UNTAET)
(2) Kosovo (UNMIK and EULEX)
(ii) Procedural rules at tribunals based on a bilateral agreement with the UN or a regional organization
(1) Special Court for Sierra Leone
(2) Extraordinary Chambers in the Court of Cambodia
(3) Special Tribunal for Lebanon
(iii) Procedural rules at other tribunals
(1) Iraqi Higher Criminal Court (IHCC)
(2) International Crimes Tribunal (ICT) in Bangladesh
(3) Special Jurisdiction for Peace in Colombia
(d) Intermediate conclusion
C Goals of international criminal justice
(1) Traditional goals of international criminal justice
(2) Special goals of international criminal justice
(a) Provision of an accurate historical record of events/substantive truth finding
(b) Restoration of international peace and security
(c) Satisfaction of victims—Victim participation
(3) The goals in context
D Rights of the Accused
(1) Overview
(2) Fair trial and equality of arms
(a) Preliminary remarks
(b) Equality of arms
(c) Towards an adversarial procedure?
(d) Application ratione temporis
(3) Concrete rights
(a) Preliminary remarks
(b) Presumption of innocence
(c) Prompt information about nature and cause of the charge
(d) Adequate time and facilities for the preparation of defence
(e) Full and effective defence
(f) Right to witness confrontation
(g) Free assistance of an interpreter
(h) Trial without undue delay
(i) Right to judicial review
(j) Ne bis in idem (double jeopardy rule)
(4) Overall assessment of fair trial
Ch.II Role and Status of Legal Participants
A Judges and Chambers
(1) Position
(2) Composition of Chambers
(a) Pre-Trial Chamber
(b) Trial Chamber
(c) Appeals Chamber
(3) Selection
(4) Legal ethics
(5) Control and review (accountability)
B Prosecutor and Office of the Prosecution
(1) Position: A separate and independent organ of the Court
(2) Composition and structure
(3) Qualifications, selection, and tenure
(4) Function and mandate
(5) Strategy and policy
(6) Professional ethics: The OTP’s Code of Conduct
(7) Control and review (accountability)
C Defence Counsel
(1) Right to counsel
(a) Introduction
(b) Legal framework and scope of protection
(c) Free choice of counsel
(d) Free legal assistance
(2) Defence attorney ethics
(a) Preliminary remarks
(b) Code of Professional Conduct for counsel
(3) Standby counsel
(4) Ad hoc counsel
D Defendants
(1) Rights of the suspect/accused
(2) Presence at trial
(3) Self-representation
E Victims
(1) A new concept in ICL: From victor’s justice to justice for victims
(2) Definition of victims
(3) Assistance to victims by the Registry
(4) Victim participation
(a) Article 68 (3) ICCS: The core provision on victim participation
(b) Specific participation and information rights
(c) The application process
(d) Modalities of victim participation
(5) Victim protection
(6) Reparations to victims
F Amicus curiae
Ch.III Jurisdiction and Admissibility (Complementarity)
A Jurisdiction
(1) Principles of national jurisdiction
(a) The starting point: Principle of non-interference
(b) Genuine links in international law
(c) Solving conflicts by balancing out the respective interests
(2) The legitimate genuine links in detail
(a) Principle of territoriality
(i) General
(ii) Objective territoriality/ubiquity vs. effects
(iii) The flag principle
(b) The active personality principle
(i) Absolute active personality principle
(ii) Limited active personality principle
(iii) Domicile or residence principle
(iv) Seat principle
(c) The protective principle: Substantial State interests and passive personality
(i) Protective principle stricto sensu
(ii) Passive personality principle
(d) Principle of universal jurisdiction
(i) Foundation
(ii) Scope or subject matter
(e) The principle of representation ( aut dedere aut iudicare )
(3) Conflicts of jurisdiction
(a) Conflict of jurisdiction in the broad sense and double jeopardy
(b) Settling conflicts of jurisdiction: A call for a hierarchy of the jurisdictional links
(4) Jurisdiction of the ICC vis-á-vis international criminal tribunals
(a) Jurisdiction of the ICC
(i) Preliminary remarks
(ii) Ratione loci jurisdiction
(iii) Declaration under Article 12 (3) ICCS
(iv) Challenges to jurisdiction
(b) Exercise of Jurisdiction: Referral (trigger) mechanisms
(i) State referral, including self-referral
(ii) Security Council referral (and deferral)
(iii) Proprio motu investigation by the Prosecutor
B Admissibility, in particular the complementarity test
(1) Primacy vs. subsidiarity (complementarity)
(a) Primacy
(b) Subsidiarity (complementarity)
(2) Admissibility (Article 17 ICCS): Gravity and complementarity stricto sensu
(a) Introductory remarks
(b) Situation and case—The objects of reference of the admissibility test
(c) Sufficient gravity (Article 17 (1)(d) ICCS)
(i) The standard in current practice
(ii) The own approach
(d) Complementarity stricto sensu (Article 17 (1)(a)–(c), (2), and (3) ICCS)
(i) Admissibility due to total State inaction
(ii) Inadmissibility due to State action (Article 17 (1)(a)–(c) and Article 20 (3) ICCS)
(iii) Admissibility due to unwillingness or inability (Article 17 (2) and (3) ICCS)
(1) Preliminary remarks
(2) Unwillingness
1 General
2 Specific criteria
(3) Inability
(e) Challenges to admissibility (Articles 18, 19)
(3) Positive complementarity
(a) Origin and concept
(b) Assessment: A realistic role for positive complementarity
Ch.IV Proceedings before the ICC and the Ad Hoc Tribunals—Overview of and Special Issues
A Overview
(1) Investigation
(a) Preliminary examination
(b) Formal investigation
(2) Charges and judicial review: Confirmation proceedings
(a) Indictment (ad hoc tribunals) and Document Containing the Charges (ICC)
(b) Confirmation proceedings, hearing, and decision
(3) Trial
(a) General overview
(b) Presence of the accused and joinder/severance
(4) Judgment
B Special Issues
(1) Selection and prioritization as key elements of a prosecutorial strategy
(2) The fine distinction between Article 53 (1) and (2) ICC Statute
(3) Prosecutorial discretion vs. judicial supervision during preliminary examination and investigation
(4) The interests of justice clause
(5) Investigatory powers of the Prosecutor (simple and qualified investigative measures)
(6) Individualization: Arrest and pre-trial detention, summons to appear and release
(a) Issuance of an arrest warrant
(b) Arrest, review, and (interim) release
(7) Continuous investigation, amendment/withdrawal of charges, cumulative/alternative charging, and recharacterization of facts
(a) Continuous investigation versus premature termination
(b) Amendment/withdrawal of charges and presentation of new evidence
(c) Cumulative/alternative charging and recharacterization of facts (Regulation 55)
(d) The gist of the issue: Distinguishing law and facts and ensuring a fair trial
(8) Guilty plea versus ‘admission of guilt’
(a) Ad hoc tribunals
(b) International Criminal Court
Ch.V Evidence and Disclosure
A Evidence
(1) General remarks
(a) Free assessment and admissibility
(b) Submission of evidence
(2) Relevance, probative value (reliability), and fundamental procedural principles
(a) Relevance, probative value, and reliability
(b) Fundamental principles, in particular the beyond reasonable doubt standard
(3) Witness testimony, including expert witnesses
(a) General: Order and manner of interrogation
(b) Probative value, reliability, credibility, and corroboration
(c) Hearsay evidence, including intermediaries
(d) Familiarization and preparation of witnesses (‘proofing’)
(e) Expert witnesses
(4) Documentary evidence
(a) Concept and forms: Testimonial and other written evidence
(b) Admissibility: General principles
(c) Ad hoc tribunals: The move to written evidence
(d) ICC: Admission of written evidence, especially Rule 68 RPE ICC
(e) Bar table evidence and authenticity of documents
(5) Special rules due to subject matter or other reasons
(a) Judicial notice
(b) Non-contestation of facts
(c) Others
(6) Direct versus indirect (circumstantial) evidence
(7) Documentation (‘record of proceedings’)
(8) Inadmissibility (exclusion) of evidence due to rights violations
(a) Conceptual foundations: Exclusionary rules versus prohibitions of use
(b) The substantive (two-step) test: Nature of violation and impact
B Disclosure
(1) Introduction
(a) Conceptual clarification
(b) The Human Rights Law dimension of disclosure
(c) The role of the Chamber and the Registry
(2) Prosecution disclosure
(a) General remarks
(b) Disclosure relating to an arrest warrant
(c) Disclosure prior and at the confirmation hearing
(i) The legal regime
(ii) Extent of disclosure
(iii) The obligation to provide an analysis chart
(d) Exculpatory evidence
(i) The importance of an obligation to disclose exculpatory evidence
(ii) Definition of ‘exculpatory evidence’
(iii) Discretionary decision by the Prosecution
(iv) Timing and form
(e) Documents and tangible objects
(f) Witness disclosure and limitations
(3) Defence disclosure
(4) Disclosure restrictions
(5) Consequences of non-disclosure
(6) Conclusion
Ch.VI Appeal, Revision, and other Remedies
A Preliminary remarks
B Appeal
(1) Appeal against final decision or sentence
(a) Procedure
(b) Standard of review and grounds of appeal
(i) Factual errors
(ii) Errors of law
(iii) Procedural and other errors
(c) Presentation of additional evidence
(d) Appeals judgment
(2) (Interlocutory) Appeal against other decisions
(a) General, including legal standing
(b) Reasons of appeal
(c) Standard of review
C Revision, including reconsideration
(1) General, including standing and standard
(2) Grounds of revision
(3) Reconsideration
D Other remedies
(1) Remedies in case of rights violations
(a) General
(b) Stay of proceedings
(c) Other remedies
(2) Review of administrative decisions
Ch.VII The Cooperation Regime
A Introductory remarks
(1) Importance, nature, and forms of cooperation
(2) Cooperation obligations and non-compliance
B The cooperation regime in more detail
(1) General aspects
(a) ICC
(b) Ad hoc tribunals
(2) Surrender and provisional arrest of persons
(a) The ICC regime and national implementation
(i) Basic principles and rules
(ii) Limitations
(1) General
(2) Immunity and other conflicting obligations (Article 98 ICCS)
1 Article 98 (1)
2 Article 98 (2)
(b) ICTY and ICTR
(3) Other mutual legal assistance
(a) ICC regime
(i) General rules and national implementation
(ii) Limitations
(b) ICTY and ICTR
Ch.VIII Enforcement of Sentences and Other Penalties
A Introductory remarks
B Enforcement of sentences of imprisonment
(1) The ICC regime and the role of States
(a) General willingness of States, concrete designation, and acceptance of convicts
(b) The actual enforcement
(2) ICTY, ICTR, and SCSL
(a) General willingness of States, concrete designation, and acceptance of convicts
(b) The actual enforcement
C Enforcement of fines and other financial measures, including reparation orders
D National implementation: Some examples
Ch.IX Concluding Remarks
Further Material
General Literature
Index of Names
Index of Subjects
Sign up for alerts
Dedication
From:
Treatise on International Criminal Law: Volume III: International Criminal Procedure
Kai Ambos
Content type:
Book content
Product:
Oxford Scholarly Authorities on International Law [OSAIL]
Published in print:
11 August 2016
ISBN:
9780199665617
Prev
|
Next
Close
Go to full text on:
EUR-Lex
External Link
Oxford Law Citator
Users without a subscription are not able to see the full content. Please,
subscribe
or
login
to access all content.
[18.212.206.217]
18.212.206.217