The Relationship of International Criminal Tribunals to Domestic Courts: Towards a New Division of Labor? (L'Articulation Entre Tribunaux Penaux Internationaux Et Juridictions Nationales: Vers Un Nouveau Partage Des Competences Judiciaires?)
International criminal justice claims to challenge the very fundamentals of the international legal order. Yet international criminal justice is also still very much a work in progress. It success will depend on how well it can deal with its great founding dilemmas, while respecting international law and its continuity. No question seems more central yet more ambiguous to international criminal tribunals' existence, in this context, than how they relate to domestic courts. This is an issue which in fact raises anew the very conundrum at the heart of international criminal tribunals' creation and identity. On the one hand, international criminal tribunals can be seen from a "universalist" perspective which argues that they are first and foremost about the emergence of a global public order; on the other hand, they can be conceived from a "sovereignist" angle, which sees their prime duty as working for the benefit of states whose crimes they are judging. It is by putting this problematic relationship back into its overall evolution and, in particular, by focusing on what a "non-functioning" domestic court is under international law, that it will become possible to transcend that ambiguity. It will appear that the issue of what is a domestic court that is either "unwilling" or "unable" is in fact an old international law question whose understanding can be improved by a dynamic reading of the evolution of international law. In final analysis, however, it may be that the International Criminal Court's capacity to emancipate itself entirely from the political will be limited, as the Prosecutor adopts a prosecutorial policy which, in itself, is unlikely to be reducible to law's categories.
Command Responsibility: The Anatomy of Proof in Romagoza v. Garcia
This Essay discusses two significant Alien Tort Statute (ATS) cases in the 11th Circuit involving the doctrine of superior responsibility: Ford v. Garcia and Romagoza v. Garcia. Both cases were brought in the same courtroom against two former Ministers of Defense of El Salvador. Together, the Romagoza and Ford cases are significant as the first modern command responsibility cases in which a defendant testified in his own defense and was judged by a lay jury, as opposed to by a professional judge or military officers staffing a military tribunal. These are also the first cases in which a domestic tribunal closely considered the modern doctrine of command responsibility as articulated and clarified by the International Criminal Tribunal for the former Yugoslavia through the vehicle of jury instructions. Furthermore, the Romagoza case is the first case in which civil plaintiffs proved liability under the doctrine of command responsibility in an adversarial setting under federal rules of evidence and procedure. As such, the Romagoza proceedings themselves deserve close attention for what they can teach about the application of the doctrine of superior responsibility and the strategic and evidentiary challenges it presents. Accordingly, this Essay deconstructs the formulation of the doctrine of command responsibility in the jury instructions employed in the two Salvadoran cases. It then discusses the challenges the doctrine poses with reference to the legal and evidentiary strategies employed by the Romagoza plaintiffs to prove command responsibility under the applicable rules of procedure and evidence. In particular, the Essay focuses on the element of "effective command" established by the 11th Circuit as a predicate for the application of the doctrine.
A Fresh Look at the Local Remedies Rule
The 1960’s have been designated by the General Assembly as “United Nations Development Decade.” The main economic objective for the decade is the creation of conditions in which the national incomes of the developing countries will increase by 5 per cent yearly by 1970, and will continue to increase at the same rate thereafter. The means by which this objective is being pursued are many; among others are national planning, technical training and capital assistance, by both multilateral and bilateral agencies. Successful as these public sector assistance schemes have been, however, it is now recognized that an increasingly large share of responsibility must be borne by the private sector of the economies of the developed nations by means of overseas investment and international trade.