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Foreword | p. V |
Acknowledgements | p. VII |
Abbreviations | p. XIII |
Exercising Jurisdiction over International Crimes | |
Introduction | p. 3 |
Impediments to exercising jurisdiction over international crimes | p. 9 |
Impediments | p. 11 |
Jurisdiction | p. 13 |
International crimes | p. 21 |
War crimes | p. 32 |
Grave breaches | p. 32 |
Serious violations of the laws and customs of war | p. 34 |
Crimes against humanity | p. 37 |
Genocide | p. 49 |
Torture | p. 59 |
Impediments | |
Amnesties | p. 75 |
Definition and historical context | p. 75 |
Amnesties and international and hybrid criminal courts and tribunals | p. 85 |
Contextual and policy considerations | p. 93 |
The need to secure the peace and maintain the peace | p. 95 |
The need for a public accounting of the truth | p. 98 |
The need to strengthen the rule of law and uphold the principle of legality | p. 102 |
The question of deterrence | p. 103 |
The need for reconciliation | p. 106 |
Legal rationales with regard to the exercise of jurisdiction in the face of amnesties | p. 110 |
The scope of the obligation to prosecute international crimes | p. 110 |
Whether victims' fundamental rights vitiate the validity of amnesty laws | p. 124 |
Whether States are constrained not to amnesty international crimes due to the peremptory character of international crimes | p. 138 |
Preliminary conclusions | p. 144 |
Pardons | p. 149 |
Definition and historical background | p. 150 |
Pardons and international and hybrid criminal courts and tribunals | p. 154 |
Contextual and policy considerations | p. 155 |
Legal rationales with regard to the use of pardons covering international crimes | p. 161 |
The scope of the obligation to punish those convicted of international crimes | p. 163 |
The possibility of pardons or commutation of sentence by international criminal courts | p. 171 |
Clemency by way of the guilty plea | p. 175 |
The possible ne bis in idem effect of pardon | p. 177 |
Preliminary conclusions | p. 181 |
Statutes of Limitation | p. 183 |
Definition and historical background | p. 184 |
Statutes of limitation and international and hybrid criminal courts and tribunals | p. 188 |
Contextual and policy considerations | p. 190 |
Legal rationales with regard to statutes of limitation covering international crimes | p. 192 |
International customary law precludes the use of statutes of limitation over international crimes | p. 192 |
Obligations to prosecute international crimes or to ensure fundamental human rights are incompatible with statutes of limitation | p. 209 |
The purposes and principles underlying the use of statutes of limitation do not account for the specificities of cases dealing with international crimes | p. 211 |
Time may be tolled in many cases where international crimes have been committed | p. 214 |
Preliminary conclusions | p. 217 |
Immunities | p. 221 |
Definition and historical background | p. 222 |
Functional immunity | p. 223 |
Act of State doctrine | p. 226 |
Personal immunity | p. 228 |
Diplomatic immunity | p. 229 |
Head of State Immunity | p. 230 |
Head of government and foreign minister immunity | p. 233 |
State immunity | p. 236 |
National immunity | p. 240 |
Immunities and international and hybrid criminal courts and tribunals | p. 243 |
Contextual and policy considerations | p. 246 |
Functional immunity | p. 246 |
Act of State doctrine | p. 248 |
Personal immunity | p. 249 |
Diplomatic immunity | p. 249 |
Head of State immunity | p. 249 |
Head of Government and Foreign Minister immunity | p. 250 |
State immunity | p. 251 |
National immunity | p. 253 |
Legal rationales with regard to functional and personal immunities for international crimes | p. 253 |
Treaty obligations to prosecute or extradite persons accused of international crimes are incompatible with immunities | p. 254 |
States have impliedly waived immunity of their officials by signing treaties criminalising certain international offences | p. 258 |
Customary international law lifts functional (and personal) immunity in case of international crimes | p. 262 |
The jus cogens nature of international crimes overrides immunity | p. 268 |
International crimes fall outside of the notion of 'acts performed in a sovereign capacity' | p. 277 |
The fundamental rights of victims are incompatible with fundamental human rights | p. 281 |
Preliminary conclusions | p. 284 |
The Principle of Ne Bis in Idem | p. 287 |
Definition and historical background | p. 288 |
Historical background | p. 288 |
Ne bis in idem and international and hybrid criminal courts and tribunals | p. 290 |
Definition | p. 292 |
What constitutes an 'idem' | p. 295 |
Types of procedures to which ne bis in idem may attach | p. 300 |
Contextual and policy considerations | p. 306 |
Legal rationales with regard to the principle of ne bis in idem and international crimes | p. 310 |
Legal arguments countering a transnational ne bis in idem principle | p. 310 |
Fundamental defects in the trial/Sham trial | p. 315 |
Retrial in the case of newly discovered evidence or facts | p. 318 |
The State claim to exercise jurisdiction over offences committed on its territory | p. 322 |
Exception for certain offences | p. 323 |
Additional serious offences | p. 323 |
Preliminary conclusions | p. 325 |
Abuse of Process | p. 329 |
Definition and historical background | p. 330 |
Contextual and policy considerations | p. 332 |
The need to ensure a fair trial | p. 332 |
The need to preserve the integrity of the judicial system | p. 333 |
Legal rationales with regard to the doctrine of abuse of process and international crimes | p. 336 |
Abduction/Disguised extradition | p. 336 |
National level | p. 336 |
International level | p. 341 |
Procedural rights | p. 347 |
National level | p. 348 |
International level | p. 348 |
Delay | p. 352 |
National level | p. 352 |
International level | p. 353 |
Withholding of exculpatory evidence | p. 355 |
Double jeopardy | p. 357 |
Breach of promises of non-prosecution (amnesty) | p. 357 |
National level | p. 357 |
International level | p. 358 |
Misuse of the criminal process | p. 361 |
Preliminary conclusions | p. 362 |
General Conclusion | |
General Conclusion | p. 367 |
Bibliography | p. 381 |
Table of Cases | p. 395 |
Index | p. 413 |
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