Monday, June 22, 2009

Cimiotta: I tribunali penali misti

Emanuele Cimiotta ("La Sapienza" Univ. of Rome - Law) has published I tribunali penali misti (CEDAM 2009). Here's the abstract:

This monograph intends to assess whether certain recently established criminal judicial organs – namely the Special Court for Sierra Leone, the Cambodian Extraordinary Chambers, the Special Panels for Serious Crimes of the Dili District Court and the Regulations 64 Panels in Kosovo – set up a new normative category, liable to be placed beside the institutional paradigms currently working in the field of international criminal justice: national jurisdictions and international jurisdictions (International Criminal Court and International Criminal Tribunals for the Former Yugoslavia and for Rwanda).

The majority of legal scholars tends indeed to describe those organs as a self-contained category – called "Mixed Criminal Tribunals" – stressing on their organizational structure and judicial competence as conclusive criteria. In particular, according to the ruling legal reasoning this would depend on the fact that those entities are partly composed of judges, prosecutors, defence counsels and support staff who are nationals of the country where the Tribunal is established, partly of analogous figures with foreign citizenship appointed at international level, and apply substantive and procedural rules which are rooted both in the territorial State’s law and in international treaty and customary law. Moreover, the above classification would follow from the Tribunals’ location in the territories where the offences within their jurisdiction were perpetrated.

Even though relying on a normative reconstruction appears persuasive at first sight, nevertheless one needs to ask himself whether this outcome flows from a too rash evaluation of each Tribunal’s features, and from an analysis influenced by requirements merely descriptive in character. This volume argues that the elements on whose basis the legal literature singles out an independent class of criminal judicial authorities are misleading. On the contrary, the research carried out in the book reveals that every Tribunal is by its very nature characterised by a specific level or degree of internationalisation (i.e. a different balancing between "internal component" and "international component"), which considerably distinguishes it from the others. As a consequence, these remarks lead to believe that the alleged unitary normative category of Mixed Criminal Tribunals breaks down into a wide range of organizational models.

Thus, the attempt is made to find in other features the "common element" enabling to reduce the phenomenon to unity under a less rigid and formalistic perspective. Accordingly, it is intended to show that the Mixed Criminal Tribunals share two fundamental aspects. On a formal level, they all are judicial organs internal to the territorial State. On a substantial level, they all exercise a specific function within the international legal system (as are aimed at protecting certain essential values of the International Community as a whole, both in a basically effective and in a much-awaited preventive way), being linked to post-conflict peace-building activities undertaken by the UN in the territories where they are constituted (in particular, to those activities aimed at restoring the rule of law for the benefit of war-torn societies, fostering national reconciliation processes and training local lawyers in the prosecution of crimina iuris gentium).