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Ch.VI Appeal, Revision, and other Remedies »

From: Treatise on International Criminal Law: Volume III: International Criminal Procedure
Kai Ambos
This chapter outlines the various legal remedies available in modern international criminal proceedings. The appeal is the ordinary remedy against a first instance judgment of acquittal or conviction with a view to correcting possible errors of fact and law (‘final appeal’); it can also be lodged against other decisions at the pre-trial or trial stage (‘interlocutory appeal’). In contrast to the appeal, the revision is an extraordinary remedy against a final judgment of conviction or sentence. In addition, there are other remedies with regard to prosecutorial investigation or prosecution decisions, procedural rights’ violations, and administrative decisions.

VI Attempt as a Special Form of Individual Criminal Responsibility »

From: Treatise on International Criminal Law: Volume I: Foundations and General Part (2nd Edition)
Kai Ambos
This chapter first explains why attempt – an incomplete offence lacking the fulfilment of the actus reus of the respective crime – should be punishable at all and whether/how it is punishable under International Criminal Law. This chapter develops the essential elements of attempt liability on the basis of comparative law with a view to most important national legal systems . It analyses in detail the provision in the Rome Statute and proposes a ‘formula of approximation’ with regard to ‘commencement of execution’ stage (that is the moment of punishability) of attempt. It then applies this attempt formular to the international core crimes. Last but not least, abandonment of attempt is also discussed.

II Concept, Function, and Sources of International Criminal Law »

From: Treatise on International Criminal Law: Volume I: Foundations and General Part (2nd Edition)
Kai Ambos
This chapter lays the conceptual groundwork for the following chapters, and is written in a both philosophical and jurisprudential ink. It starts with a critical analysis of international criminal law as both concept, discipline and placeholder for an anti-impunity agenda. Certain types of crimes are separated into core crimes on the one hand and treaty-based/transnational crimes and supranational crimes on the other hand. The chapter then proceeds along the lines of the jurisprudential foundations of crime, criminal law and punishment. The author advocates for an autonomous punitive power of the international community as the basis of an autonomous international criminal law. Criminalization is based on the protection of fundamental legal interests or the prevention of serious harm. Punishment has an expressive, norm-stabilizing purpose and is intertwined with more general goals of International Criminal Justice. International Criminal Law’s sources range from customary international law over international treaty law to general principles. The DNA of the chapter is thus an amalgamation of comparative legal concepts with the peculiarities of a ius puniendi that lies at the hear of enterprise of international criminal law.

Ch.IX Concluding Remarks »

From: Treatise on International Criminal Law: Volume III: International Criminal Procedure
Kai Ambos
Fragmentation of models and systems is a feature in international criminal procedure. This concluding chapter proposes a procedural model as a broad general framework in international criminal procedure. It argues that such would leave enough room for its operators, especially the judges, to adjust the procedural rules to their daily procedural realities. The solutions for the relevant issues or the paths to come to these solutions are to be found independently of their inquisitorial or adversarial origin. Of course, a procedural ‘framework model’ needs some guiding principles and there are essentially two—fairness and efficiency/expediency. Understood correctly, these principles do not contradict but complement each other, for it is also in the interest of the suspect/accused that their legal situation is clarified as expedient as possible as long as this does not entail an unacceptable curtailment of their fair trial rights.

Ch.VI Concursus Delictorum and Sentencing »

From: Treatise on International Criminal Law: Volume II: The Crimes and Sentencing
Kai Ambos
Agbor Agbor, A., ‘The Problematic Jurisprudence on Instigation under the Statute of the ICTR—The Consistencies, Inconsistencies and Misgivings of the Trial and Appeals Chambers of the ICTR’, ICLR, 13 (2013), 429–72; Akhavan, P., Reducing Genocide to Law—Definition, Meaning, and the Ultimate Crime (New York: Cambridge University Press, 2012); Ambos, K., ‘Nulla Poena Sine Lege in International Criminal Law’, in Haveman, R. and Olusanya, O., eds., Sentencing and Sanctioning in Supranational Criminal Law (Antwerpen, Oxford: Intersentia, 2006), 17–35; id, ‘Critical...

Contents »

From: Treatise on International Criminal Law: Volume II: The Crimes and Sentencing
Kai Ambos

Contents »

From: Treatise on International Criminal Law: Volume III: International Criminal Procedure
Kai Ambos

Contents »

From: Treatise on International Criminal Law: Volume I: Foundations and General Part (2nd Edition)
Kai Ambos

Ch.VII The Cooperation Regime »

From: Treatise on International Criminal Law: Volume III: International Criminal Procedure
Kai Ambos
This chapter examines the cooperation rules between international criminal tribunals and the national jurisdictions. As with the inter-State regime of horizontal cooperation (mutual assistance), the cooperation with international criminal tribunals encompasses three areas: arrest and surrender of persons, other legal assistance, and execution of sentences and other decisions. There is a factual connection insofar as both arrest/surrender/other legal assistance and execution of sentences/other decisions concern the cooperation between States and the tribunals. The tribunals require the cooperation of States both in the investigation and adjudication phase as well as in the enforcement phase. As to the structure of cooperation, however, the cooperation in the area of enforcement seems less ‘vertical’ than the surrender of persons and the other legal assistance.

Ch.IV The Crime of Aggression »

From: Treatise on International Criminal Law: Volume II: The Crimes and Sentencing
Kai Ambos
Alexander, L., and Kessler Ferzan, K., Crime and Culpability—A Theory of Criminal Law (New York: Cambridge University Press, 2009); Ambos, K., ‘Some Preliminary Reflections on the Mens Rea Requirements of the Crimes of the ICC Statute and of the Elements of Crimes’, in Vohrah, L. C. et al., eds., Man’s Inhumanity to Man—Essays on Ιnternational Law in Honour of Antonio Cassese (The Hague: Kluwer Law International, 2003), 11–40; id, ‘Strafrecht und Krieg—Strafbare Beteiligung der Bundesregierung am Irak-Krieg?’, in Arnold, J. et al., eds., Menschengerechtes...

Ch.II Crimes against Humanity »

From: Treatise on International Criminal Law: Volume II: The Crimes and Sentencing
Kai Ambos
Alflen da Silva, P. R., ‘Brasil’, in Ambos, K., coord., Desaparición forzada de personas—Análisis comparado e internacional (Bogotá: GTZ/Temis, 2009), 39–52; Agirre Aranburu, X., ‘Sexual Violence Beyond Reasonable Doubt: Using Pattern Evidence and Analysis for International Cases’, LJIL, 23 (2010), 609–27; Alton, C., ‘Plea Bargaining as a Legal Transplant—A Good Idea for Troubled Criminal Justice Systems?’, Transnat’lLCP, 19 (2010), 355–418; Ambos, K., Impunidad y derecho penal internacional (Buenos Aires: Ad-Hoc, 1999); id, ‘Immer mehr Fragen im internationalen...

Criminal Responsibility, Modes of »

Kai Ambos
1 Given the fragmentation (van den Herik and Stahn (eds) [2012]; Carcano [2016]) in international criminal law, in terms of the high number of different courts (International Criminal Court [ICC]; International Criminal Tribunal for Rwanda [ICTR]; International Criminal Tribunal for the Former Yugoslavia [ICTY] [see also International Residual Mechanism for Criminal Tribunals (IRMCT)]; Special Court for Sierra Leone [SCSL] [see also Residual Special Court for Sierra Leone]; Special Panels for East Timor; Kosovo Specialist Chambers; Extraordinary Chambers in the...

Dedication »

From: Treatise on International Criminal Law: Volume II: The Crimes and Sentencing
Kai Ambos

Dedication »

From: Treatise on International Criminal Law: Volume III: International Criminal Procedure
Kai Ambos

Dedication »

From: Treatise on International Criminal Law: Volume I: Foundations and General Part (2nd Edition)
Kai Ambos

Part III The Right to Justice, A General Principles, Principle 19 Duties of States with Regard to the Administration of Justice »

Kai Ambos
From: The United Nations Principles to Combat Impunity: A Commentary
Edited By: Frank Haldemann, Thomas Unger
Principle 19 outlines the duties of States with regard to the administration of justice for victims of serious human rights violations and other international crimes. Under this Principle, States must ensure that those responsible for serious crimes under international law are prosecuted, tried and adequately punished. A state’s (criminal) justice obligations have long been recognized by regional human rights courts and international human rights bodies. While the fight against impunity is the explicit aim of the International Criminal Court (ICC) and a major goal of the United Nations, the duty to prosecute lies primarily with the domestic justice system with regional or international mechanisms being subsidiary or complementary. This chapter first provides a contextual and historical background on Principle 19 before discussing its theoretical framework and how human rights courts and treaty bodies have interpreted the duty of States to investigate and prosecute serious human rights violations.

Ch.VIII Enforcement of Sentences and Other Penalties »

From: Treatise on International Criminal Law: Volume III: International Criminal Procedure
Kai Ambos
This chapter analyses the enforcement of sentences of imprisonment imposed by international criminal tribunals and courts, especially as opposed to the enforcement of fines and other financial measures. Article 77 of the Statute of the International Criminal Court (ICCS) provides for imprisonment as the main penalty, and fines and forfeiture of proceeds, property, and assets as additional (‘in addition’) penalties. Its division between deprivation of liberty and other, financial measures adds another layer to our understanding of the enforcement regime. Furthermore, the enforcement of sentences and other judicial decisions is—together with extradition and other legal assistance (especially regarding evidence gathering)—a fundamental part of interstate cooperation in criminal matters. As such, it operates, in essence, in a decentralized fashion through enforcement by (willing and able) States, although one may consider the international tribunals’ detention facilities (IDFs) as the nucleus of a centralized international enforcement or even an international penal system. National implementation by representative States is reviewed in this chapter.

Ch.V Evidence and Disclosure »

From: Treatise on International Criminal Law: Volume III: International Criminal Procedure
Kai Ambos
This chapter examines the principles governing the taking and admission of evidence and the obligations of disclosure in international criminal procedure. The main areas of evidence before international criminal tribunals, i.e. witness and documentary evidence, are analysed. Some specific rules and issues are explored before concluding the first part with the important problem of the inadmissibility (exclusion) of evidence due to rights violations. The second part of the chapter analyses the disclosure regime, distinguishing between prosecution and defence disclosure and discussing disclosure restrictions. The focus is on the ICC although its case law on the matter is still incipient and therefore the international law of evidence is largely informed by the case law of the ad hoc tribunals.

Ch.I The Framework of International Criminal Procedure: Conceptual Foundations, Origins, Goals, and Rights »

From: Treatise on International Criminal Law: Volume III: International Criminal Procedure
Kai Ambos
This introductory chapter is an overview of international criminal procedure. More specifically, it discusses the conceptual foundations of international criminal procedure, and clarifies the dichotomy between the inquisitorial ‘civil law’ and the adversarial ‘common law’ process. The chapter next traces the history of international criminal procedure, focusing in particular on the emerging international criminal procedure and the relevant courts and tribunals which provide better understanding into modern developments. The goals of international criminal justice—under which category the international criminal procedures fall—are then outlined. Finally, the chapter delves into the rights of the accused—the rights enjoyed by the defendants in international criminal proceedings—which are generally recognized in universal and regional human rights instruments.

Further Material »

From: Treatise on International Criminal Law: Volume II: The Crimes and Sentencing
Kai Ambos