Daryl Mundis - Academia.edu (original) (raw)

Papers by Daryl Mundis

Journal of International Criminal Justice, Mar 1, 2004

American Journal of International Law, 2003

... 47 Of course, since the ICC has prospective jurisdiction fromJuly 1, 2002, only, the UN archi... more ... 47 Of course, since the ICC has prospective jurisdiction fromJuly 1, 2002, only, the UN archives may ... 54 It is not uncommon in the practice of the ad hoc Inter-national Criminal Tribunals for ... for a privilege relating to information under the con-trol of the International Committee of ...

Oxford University Press eBooks, Mar 27, 2014

Journal of International Criminal Justice, Nov 1, 2011

Fordham International Law Journal, 2004

American Journal of International Law, Oct 1, 2001

The international criminal court (ICC) will serve as a permanent institution dedicated to the enf... more The international criminal court (ICC) will serve as a permanent institution dedicated to the enforcement of international humanitarian law sixty days after the sixtieth state has deposited its instrument of ratification, acceptance, approval, or accession to the Treaty of Rome with the Secretary-General of the United Nations.1 Pursuant to Article 11 of the ICC Statute, however, the ICC will have jurisdiction only with respect to crimes committed after the treaty comes into force.2 Consequently, when faced with allegations of violations of international humanitarian law in the period prior to the establishment of the ICC, the international community has five options if criminal prosecutions are desired.3 First, additional ad hoc international tribunals, similar to those established for the former Yugoslavia (International Criminal Tribunal for the Former Yugoslavia, ICTY) and Rwanda (International Criminal Tribunal for Rwanda, ICTR) could be established.4 Second, "mixed" international criminal tribunals, which would share certain attributes with the ad hoc Tribunals, could be created.5 Third, the international community could leave the prosecution of alleged offenders to national authorities, provided that the domestic courts are functioning and able to conduct such trials. Fourth, in those instances where the national infrastructure has collapsed, international resources could be made available to assist with the prosecution of the alleged offenders in domestic courts. Finally, the international community could simply do nothing in the face of alleged violations of international humanitarian law.

International legal materials, May 1, 2001

American Journal of International Law, Apr 1, 2002

In the wake of the terrorist attacks in the United States on September 11, 2001, a variety of pro... more In the wake of the terrorist attacks in the United States on September 11, 2001, a variety of proposals emerged for bringing the perpetrators tojustice. These proposals included the use of courts-martial, the creation of a special tribunal (whether under the auspices of the United Nations or otherwise), and prosecution in U.S. federal courts.1 On November 13, 2001, President George W. Bush issued a military order entitled "Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism" (Military Order).2 Pursuant to the Military Order, the United States may establish military commissions to prosecute terrorists for violations of the laws of war and "other applicable laws."

Leiden Journal of International Law, Dec 1, 2003

Journal of International Criminal Justice, Sep 1, 2004

Although it might appear that the EOC are binding on the ICC Judges in accordance with Article 21... more Although it might appear that the EOC are binding on the ICC Judges in accordance with Article 21(1) ICCSt., when read in conjunction with Article 9, it appears that the latter article is lex specialis with respect to Article 21(1). See Dörmann, at 8. 2 See, e.g. D. Hunt, 'The International Criminal Court-High Hopes, "Creative Ambiguity" and an Unfortunate Mistrust in International Judges', 2 Journal of International Criminal Justice (JICJ) (2004) at 56. 3 The full text of the EOC is available online at http:// www.icc-cpi.int/library/basicdocuments/ elements(e).pdf (visited 20 May 2004). 4 A. Cassese, 'Black Letter Lawyering vs. Constructive Interpretation, The Vasiljević Case', 2 JICJ (2004), at 265. 5 The recent judgment in the Galić case, before the ICTY, is a good example. This was the first case to involve a charge of inflicting terror on the civilian population contrary to Arts 51 and 13 of Additional Protocols I and II, respectively, as punishable under Art. 3 ICTYSt. The prosecution and defence disagreed about the elements and the Trial Chamber adopted elements that differed from what both parties proposed. See Judgment, Galić (IT-98-29-T), Trial Chamber, 5 December 2003, § 133 (Trial Chamber definition of the crime); § 70 (prosecution-proposed elements); and § § 77-85 (defence-proposed elements). The Trial Chamber's guilty findings with respect to this offence are under appeal.

Brill | Nijhoff eBooks, 2003

Journal of International Criminal Justice, Nov 1, 2005

(with the exception of decisions reported concerning Rule 11bis ICTY RPE in Section 6.A.2., infra... more (with the exception of decisions reported concerning Rule 11bis ICTY RPE in Section 6.A.2., infra). Nota bene: The names of the Judges as set forth herein are taken directly from the documents as filed. Consequently, variations in the full names of the Judges may be noticed. The views expressed herein are those of the authors alone, and do not necessarily reflect the views of the International Tribunal or the United Nations in general.

Journal of International Criminal Justice, Aug 1, 2003

Member of the Editorial Committee and Trial Attorney, Office of the Prosecutor ('OTP'), ICTY. The... more Member of the Editorial Committee and Trial Attorney, Office of the Prosecutor ('OTP'), ICTY. The views expressed herein are those of the author and are not attributable to the UN, ICTY or OTP. The author may be contacted at: thehague࠽wanadoo.nl 1 In 1789, the First Congress established US federal district court jurisdiction over 'all causes where an alien sues for a tort' committed in violation of international law: Judiciary Act of 1789, chapter 20, § 9(b), now codified at 28 USC §1350. 2 28 USC §1350 Note. TVPA permits US citizens or aliens to sue in US federal courts for recovery of damages from individuals who, under actual or apparent authority or acting pursuant to any foreign law, have engaged in torture or extrajudicial killing. 3 The discussion of human rights law was commingled with the discussion under ACTA and TVPA. See 169 F Supp 2d 259, 309-316, text at notes 206-242 therein. The plaintiffs also relied upon the US federal question statute, 28 USC § 1331, in asserting jurisdiction. Because the court determined the issues in dispute on other grounds, this basis of jurisdiction was not specifically addressed. 169 F Supp. 2d 259, 310, note 208. 4 After briefly discussing the facts and procedural background, each of these topics will be addressed.

Leiden Journal of International Law, Jun 1, 2001

As a result of the perception that trials at the International Criminal Tribunal for the former Y... more As a result of the perception that trials at the International Criminal Tribunal for the former Yugoslavia ('ICTY') are too lenghty, a discernible shift in the trial practice of the ICTY is occurring, with a greater emphasis on the role that the judges play in controlling the proceedings. While the first few trials at the Tribunal closely resembled common law criminal trials, the level of control being exercised by the Trial Chambers in recent cases is moving more in the direction of the civil law approach. As a result, a truly mixed jurisdiction, that is, one that contains elements of both the common law and the civil law, is emerging. This evolutionary process will be examined in the context of: (1) The Rules of Procedure and Evidence and amendments thereto concerning case management; (2) examples of case management under the amended Rules; and (3) the future evolution of the ICTY.

American Journal of International Law, Oct 1, 2000

Since the establishment of the International Criminal Tribunal for the Former Yugoslavia and the ... more Since the establishment of the International Criminal Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda, both International Tribunals have grown tremendously in terms of resources. Despite this growth, the International Tribunals have rendered judgments in only fifteen cases and conducted inordinately long trials—a fault for which, perhaps more than any other, they can be justly criticized. The Secretary- General of the United Nations recently appointed an expert group to review the efficiency of the operation of the International Tribunals and make recommendations for improvement. Following the release of the group's report, the General Assembly requested that the Secretary-General obtain comments from the International Tribunals on the experts’ recommendations. The ICTYjudges, for their part, considered these recommendations in a report to the United Nations setting forth a long-term strategy for improving the operation of the Tribunal.

International legal materials, 2003

is currently on trial before Trial Chamber II of the International Criminal Tribunal for the form... more is currently on trial before Trial Chamber II of the International Criminal Tribunal for the former Yugoslavia (ICTY) for his alleged role as President of the Crisis Staff in the Autonomous Region of the Krajina in Bosnia and Herzegovina. At trial, the Prosecution sought to tender an article written by Jonathan C. Randal and published in the Washington Post on February 11,1993. The newspaper story contained quotations attributed to the accused and which the Prosecution argued were inculpatory. Because he did not speak or understand Serbo-Croatian, another journalist who did speak that language assisted Mr. Randal in conducting his interview of the accused. The Prosecution sought to tender the article into evidence, arguing that it was relevant to establishing the accused's intent with respect to several of the crimes as charged in the indictment. The accused objected to the admission into evidence of the article and sought to cross-examine the journalist. The Prosecution then sought a subpoena from the Trial Chamber compelling the journalist to attend for purposes of cross-examination and the Trial Chamber issued such a subpoena, on January 29, 2002. It is worth noting that subpoenas to compel witnesses to testify are relatively rare in the practice of both the ICTY and International Criminal Tribunal for Rwanda, since most witnesses will voluntarily appear in order to give viva voce evidence. On several occasions, the Prosecution informed the Trial Chamber that Mr. Randal refused to comply with the subpoena. On May 9, 2002, the journalist filed a written motion seeking to have the subpoena set aside and the following day the Trial Chamber held a hearing on the issue. At the hearing, Mr. Randal argued that journalists were entitled to invoke a "qualified testimonial privilege." On June 7, 2002, the Trial Chamber refused to recognize such a privilege, upheld the validity of the subpoena, and found that the newspaper article was admissible. In June 2002, the Trial Chamber granted Mr. Randal a certificate permitting him to appeal the Trial Chamber ruling to the Appeals Chamber. In addition to the pleadings of the appellant and the Prosecution, the Appeals Chamber granted the request of 34 media companies and associations of journalists to file a brief as amici curiae in the case. Following oral hearings on October 3, 2002, the Appeals Chamber rendered its decision quashing the subpoena on December 11,2002. The Appeals Chamber considered that the real issue raised by the appeal concerned not journalists in general, but rather the more limited category of "war correspondents." The chamber indicated that its decision was limited to situations in which members of this group, defined as "individuals who, for any period of time, report (or investigate for the purposes of reporting) from a conflict zone on issues relating to the conflict," were requested to testify but refused to do so. Turning to the issue of subpoenas in general, the Appeals Chamber held that although neither the Statute nor Rules of the Tribunal offered much guidance on the issue being litigated, and although the Trial Chamber has discretion to issue subpoenas, this discretion is not" unfettered." It observed that because subpoenas involve the use of the court's coercive powers and may ultimately result in criminal sanctions, the Trial Chamber must take into account a number of considerations prior to resorting to the issuance of a subpoena. Primary among these considerations is the "admissibility and potential value of the evidence sought to be obtained." Secondary among such considerations is the issue of testimonial privileges.

International Criminal Law Developments in the Case Law of the ICTY, 2003

International Legal Materials, 2002