Judicial Creativity at the International Criminal Tribunals

As the International Criminal Tribunals for the Former Yugoslavia and Rwanda enter the final phase of their work, it is an appropriate time to reflect on the significant contribution that these unique institutions have made to the development of international criminal law. Judgments issued by the ad hoc Tribunals have served to clarify and elucidate key concepts and principles of international criminal law. On several occasions, this practice and jurisprudence has pushed the progressive development of this dynamic and growing branch of international law. Judicial Creativity at the International Criminal Tribunals examines the specific contribution made by the judges of the Yugoslavia and Rwanda Tribunals to the development of international criminal law in the areas of substantive crimes, criminal liability, defences, general principles, fair trial rights, and procedure. The essays illuminate the law on these topics while pointing to key areas where the Tribunals have advanced the understanding of particular concepts and principles. Several contributions address the theories of interpretation employed by the Tribunals' judges and the challenges presented by judicial creativity in international criminal trials. As the caseload grows for the International Criminal Court and the international criminal justice project continues to flourish, it is important to take stock of the achievements to date of international criminal bodies. This collection of essays provides a thoughtful analysis by judges, practitioners, and scholars of international criminal law of the profound changes in the field enacted by the judges of the International Criminal Tribunals for Rwanda and the Former Yugoslavia.

Dr. Shane Darcy is a lecturer at the Irish Centre for Human Rights, National University of Ireland, Galway. He holds a Ph.D and LL.M in international human rights law from the National University of Ireland, Galway and has published widely in the fields of international humanitarian law, criminal law and human rights law.

Joseph Powderly is Researcher in International Criminal and Humanitarian Law at the T.M.C. Asser Instituut in The Hague. He is a Ph.D. candidate at the Irish Centre for Human Rights, National University of Ireland, Galway, and is a recipient of a Postgraduate Research Scholarship from the Irish Research Council for the Humanities and Social Sciences.

Introduction, Shane Darcy and Joe Powderly
Part I - Sources of Law and Judicial Interpretation
1. Judicial Interpretation at the ad hoc Tribunals: Method from Chaos?, Joseph Powderly
2. General Principles of Law, Judicial Creativity and the Development of International Criminal Law, Fabian Raimondo
Part II - Definition of Crimes
3. Judicial Activism and the Crime of Genocide, William A. Schabas
4. Using Custom to Reconceptualize Crimes Against Humanity, L.J. van den Herik
5. The Reinvention of War Crimes by the International Criminal Tribunals, Shane Darcy
6. Creating a Definition of Rape in International Law: the Contribution of the International Criminal Tribunals, Niamh Hayes
Part III - Forms of Criminal Liability
7. The ad hoc Tribunals and the Law of Command Responsibility: A Quiet Earthquake, Robert Cryer
8. Judicial Creativity and Joint Criminal Enterprise, Mohamed Shahabuddeen
9. Omission Liability at the International Criminal Tribunals - A Case for Reform, Gideon Boas
Part IV - Defences and Fair Trial Rights
10. The Judicial Development of the Law of Defences by the International Criminal Tribunals, Caroline Fournet
11. The Development of the Right to Self Representation before the International Criminal Tribunals, Gillian Higgins
12. The Right to be Informed of the Nature and Cause of the Charges: A Potentially Formidable Jurisprudential Legacy, Wayne Jordash & John Coughlan
Part V - Procedure
13. Procedural Lawmaking at the International Criminal Tribunals, Goran Sluiter
14. Trying Cases at the International Criminal Tribunals in the Absence of the Accused?, Hakan Friman
15. The Role of the Judges in the Definition and Implementation of the Completion Strategies of the International Criminal Tribunals, Fidelma Donlon