What Defines an International Criminal Court?: A Critical Assessment of 'the Involvement of the International Community' as a Deciding Factor. (27th January 2015)

• Record Type: Journal Article
• Authors: KJELDGAARD-PEDERSEN, ASTRID
• Is Part Of: Leiden journal of international law. Volume 28:Number 1(2015:Mar.)
• Page Start: 113
• Page End: 131
• Publication Date: 2015-01-27
• Subjects: Extraordinary Chambers in the Courts of Cambodia, -- internationalized criminal courts, -- relationship between international and national law, -- Special Court for Sierra Leone, -- 'the international community'; International law -- Periodicals; International courts -- Periodicals; 341.05
• DOI: 10.1017/S0922156514000569
• Languages: English
• ISSNs: 0922-1565

Abstract

Abstract: Since the post-Second World War tribunals, only a few scholars have attempted to draw a definitional distinction between international and national criminal courts. Remarkable exceptions include Robert Woetzel, who in 1962 categorized criminal courts according to 'the involvement of the international community', and Sarah Williams, who 50 years later relied on the same factor in her definitions of 'hybrid' and 'internationalized' criminal tribunals. Through examples of rulings by the Special Court for Sierra Leone and the Extraordinary Chambers in the Courts of Cambodia, this article will demonstrate that 'the involvement of the international community' is at best an unhelpful criterion when it comes to resolving questions, e.g. regarding the immunity of state officials and the relevance of domestic law, that require a determination of the legal system in which the court operates. Instead, it is argued that only criminal tribunals deriving their authority from international law should be labelled 'international', while the term 'national criminal court' should apply to tribunals set up under national law. This terminology would underline that issues concerning jurisdiction and applicable law must be settled according to each court's constituent document and other relevant sources of law, depending on the legal system to which this document belongs.