1. New Dimension to the General Principles of International Criminal Law: A Potential Regulator for Inter- jurisdictional Issues Megumi OCHI Post-Doctoral Research Fellow Kyoto University Graduate School of Law Japan Society for the Promotion of Science (JSPS) 1

2. Topic 2 ‘Web of jurisdictions’ against international crimes The question of norms that would regulate the inter-jurisdictional relationship within the system International courts/tribunals ① International Criminal Court (ICC), International Criminal Tribunal for former- Yugoslavia (ICTY) ② International Criminal Tribunal for Rwanda (ICTR) (Closed) ●Countries which are currently prosecuting international crimes Internationalized courts / chamber ③ Special Court for Sierra Leone (SCSL) ④ Extraordinary Chambers in the Court of Cambodia (ECCC) ⑤ International Crimes Tribunals (ICT) ⑥ Extraordinary African Chamber (EAC) ⑦ Kosovo Panels ⑧ War Crimes Chambers ⑨ East Timor Panels (Closed) ⑩ Special Criminal Court (SCC) See, Burke-White, William W. “A Community of Courts: Toward a System of International Criminal Law Enforcement.” Michigan Journal of International Law, Vol. 24, No. 1 (2003), pp. 1-101.

3. Problem Academics have not recognized the general norms for ‘inter- jurisdiction’ Why…?  Lack of recognition of the need and the possibility to conceptualize the specific norms for ‘inter-jurisdiction’? RQ: Why do we need the specific norms for ‘inter-jurisdiction’? Is it Possible to conceptualize such norms? 3

4. Argument We need to and can conceptualize ‘general principles of international criminal law (ICL)’ to regulate inter-jurisdictional issues in international criminal justice Section 1: The need Section 2: The concept Section 3: The possibility Conclusion: 4

5. Section 1: The need to conceptualize norms specific to the regulation of inter- jurisdictional procedural issues 5

6. Background(1): ‘Inter-jurisdictional’ issues 6 Section 1: IssueRelasionCase name Double trialsICTR  RwandaBagambiki case, 2007 ICTY  BosniaOrić case, 2015 DRC (Congo)  ICCChui case, 2007 Cambodia  ECCCSary case, 2011 Right to compensation in cases of mistreatment Bosnia  ICTYNikolić case, 2002 Kenya  ICTRNyiramasuhuko case, 2000 Cameroon  ICTRBarayagwiza case, 1999 / Semanza case, 2003 Benin  ICTRKajelijeli case, 2005 DRC Congo  ICCLubanga case, 2006 Ivory Coast  ICCGbagbo case, 2012 The issue of lesser sentenceYugoslavia  ICTYNikolić case, 2003

7. Background (2): Legal pluralism Diversity of applicable law Different (internal) procedural norms 7 Section 1: Type of jurisdictionPrimary lawOther International courts / tribunalsStatute, RPEgeneral international law Internationalized court / chambersStatute, RPE, domestic lawgeneral international law Domestic courtsdomestic lawgeneral international law? Ex. Witness proofing ProhibitedAllowed ICC, Lubanga case, 2006ICTY, Milutinović case, 2006 / ICTR, Karamera case, 2006 See, Sliedregt, Elies van and Sergey Vasiliev, eds. Pluralism in International Criminal Law. Oxford, 2014.

8. The candidate Necessary feature of norms for inter-jurisdictional issue Generality in applicability Immunity from pluralism Sources of ICL Standard understanding…same as ICJ Statute 38(1)(c) treaty, customary law, general principles of law The focus  General principles of law 8 Section 1:

9. Section 2: The concept of ‘general principles of ICL’ 9

10. Section 2: ‘General principles of ICL’ (Cassese, p. 15) =“principles specific to this branch of international law” : “ the application of these principles at the international level normally results from their gradual transposition over time from national legal systems on to the international order.” Question: How this “gradual transposition” occur? 10 Cassese, Antonio, and Paola Gaeta. Cassese’s International Criminal Law, 3 rd edition. Oxford University Press, 2013.

11. Section 2: The methods of transposition: Codification (ex. ICC Statute) Case law (a primitive way) on the way of identifying applicable general principle of law 2 types of mechanism can be found through case-law analysis (1) Modification (2) Selection 11 Degan, Vladimir-Djuro. “On the Sources of International Criminal Law.” Chinese Journal of International Law, Vol. 4, No. 1 (2005), pp. 44-83. Gradoni, Lorenzo. “L’exploitation des Principes Généraux de Droit dans la Jurisprudence des Tribunaux Internationaux Pénaux ad hoc.” in Emanuela Fronza and Stefano Manacorda, eds. La Justice Pénale Internationale dans les décisions des Tribunaux ad hoc. Dalloz, 2003, pp. 10-40.

12. Section 2: (1)Modification : A single ‘common denominator’ of national laws (and international law) is found Modified to be consistent with the specificity of the features of ICL 12 CaseCommon principleSpecificityModification IMT judgmentPrinciple of legalityThe unique character of law of war Principle of justice Delalić case, 1998 (ICTY)Principle of legalityMethods of criminalisation Different application and standards Tadić case, 1995 (ICTY)Tribunal must be established by law The legislative, executive and judicial division of powers does not apply Established in accordance with international standard of fair trial Kunarać case, 2002 (ICTY)Principle of consumption No relative gravity of the crimes Not applicable

13. (2) Selection: A single ‘common denominator’ of national laws (and international law) is not found One rule or several rules combined are determined as ‘general principles of ICL’ considering various requirements of ICL. 13 Section 2: caseTopicRequirementsSelection Erdemović case,1997 (ICTY) Plea of duressPolicy considerationProhibition of plea of duress (Common law) Furundžjija, 1998 (ICTY)Definition of rapePrinciple of respect for human dignity Inclusion of forced oral penetration Kupreškić case, 2000 (ICTY) Modification of legal characterization To safeguard the rights of the accused and to fulfil their mission efficiently Must provide an occasion to contest for the defence Musema case, 2000 (ICTR) Genocide and conspiracy to commit genocide Most favourable to the accused and intention of Genocide Convention An accused can only be convicted of the substantive offence

14. Section 2: Findings on the concept of ‘general principles of ICL’ Principles specific to ICL It is a label to identify norms specific to ICL, not a ‘source’ of ICL The source of ‘general principles of ICL’ can be any sources of international law, namely, treaty, customary law, and general principles of law (the source is originally the ‘general principles of law’) The application of these principles at the international level normally results from their gradual (or sudden) transposition from national legal systems on to the international order Such transposition occurs not only in treaty codification, but also in judgments and decisions  It is possible to conceptualize general principles of ICL by utilizing these methodologies adopted in international criminal jurisprudence 14

15. Section 3: The possibility to conceptualize ‘general principles of ICL’ specific to the inter-jurisdictional issues 15

16. Section 3: Specificities and requirements of regulation of inter-jurisdictional issues in international criminal justice Promoting aspects Sharing the criminal code of international crimes Human rights protection Obstructive aspects The scope of obligation Peace and truth 16

17. Section 3: Potential general principles of ICL for the inter-jurisdictional issues Ne bis in idem principle Prohibition of concurrent prosecution Prohibition of in absentia trials Abuse of process Attribution of conduct Lex mitior … 17

18. Section 3: The potential functions of the ‘general principles of ICL’ Supplementary function Interpretative function 18

19. Conclusion 19

20. Conclusion The specific norms for regulation of ‘inter-jurisdictional’ issues are needed because they must have general applicability and immunity from legal pluralism It is possible to conceptualize ‘general principles of ICL’ 20 Implication  Further research Theoretical analysis on specific principles (if the theory can find such principles) Empirical analysis on specific principles (if it is actually regulating) Theoretical impact on the relationship with HR courts or regional courts? Theoretical impact on the other fields of international law?

21. Summary Argument: We need to and can conceptualize ‘general principles of ICL’ that would regulate inter-jurisdictional issues. Section 1: The need to conceptualize the norms specific to the regulation of inter-jurisdictional procedural issues: general applicability and immunity from legal pluralism Section 2: The concept of ‘general principles of ICL’ : those specific to ICL Mechanisms: (1) modification and (2) Selection Section 3: The possibility to conceptualize ‘general principles of ICL’ specific to the inter- jurisdictional issues 21