
Contents
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1 Introduction 1 Introduction
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2 Victors' Justice: The Nuremberg and Tokyo International Military Tribunals 2 Victors' Justice: The Nuremberg and Tokyo International Military Tribunals
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2.1 The International Military Tribunal (Nuremberg) 2.1 The International Military Tribunal (Nuremberg)
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2.1.1 Agenda Setting 2.1.1 Agenda Setting
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2.1.2 St James Declaration 2.1.2 St James Declaration
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2.1.3 United Nations War Crimes Commission 2.1.3 United Nations War Crimes Commission
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2.1.4 Ordinary and Major War Criminals 2.1.4 Ordinary and Major War Criminals
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2.1.5 Moscow Declaration 2.1.5 Moscow Declaration
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2.1.6 Divided Allies 2.1.6 Divided Allies
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2.1.7 Divided US Government 2.1.7 Divided US Government
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2.1.8 US Initiative and Leadership 2.1.8 US Initiative and Leadership
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2.1.9 London Agreement 2.1.9 London Agreement
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2.1.10 The ‘I’ and the ‘M’ in IMT 2.1.10 The ‘I’ and the ‘M’ in IMT
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2.1.11 Modern 2.1.11 Modern
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2.1.12 A Human Rights Court? 2.1.12 A Human Rights Court?
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2.2 The International Military Tribunal for the Far East (Tokyo) 2.2 The International Military Tribunal for the Far East (Tokyo)
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2.2.1 Agenda Setting and Lessons from Nuremberg 2.2.1 Agenda Setting and Lessons from Nuremberg
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2.2.2 Legal Basis 2.2.2 Legal Basis
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2.2.3 International Character 2.2.3 International Character
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2.2.4 Several International Tribunals? 2.2.4 Several International Tribunals?
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3 The Security Council as Prosecutor: The ad hoc Tribunals for the former Yugoslavia, Rwanda, and Lebanon 3 The Security Council as Prosecutor: The ad hoc Tribunals for the former Yugoslavia, Rwanda, and Lebanon
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3.1 Agenda Setting 3.1 Agenda Setting
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3.2 The International Criminal Tribunal for the former Yugoslavia 3.2 The International Criminal Tribunal for the former Yugoslavia
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3.2.1 Mobilizing Western Media and Constituencies 3.2.1 Mobilizing Western Media and Constituencies
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3.2.2 UN Commission of Experts 3.2.2 UN Commission of Experts
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3.2.3 The G‐Word 3.2.3 The G‐Word
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3.2.4 The Numbers 3.2.4 The Numbers
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3.2.5 The Security Council as Prosecutor 3.2.5 The Security Council as Prosecutor
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3.3 The International Criminal Tribunal for Rwanda 3.3 The International Criminal Tribunal for Rwanda
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3.3.1 One Hundred Days of Carnage 3.3.1 One Hundred Days of Carnage
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3.3.2 Calls for an International Tribunal 3.3.2 Calls for an International Tribunal
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3.3.3 Controlling the Narrative 3.3.3 Controlling the Narrative
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3.3.4 Blowing Hot and Cold 3.3.4 Blowing Hot and Cold
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3.3.5 After Genocide 3.3.5 After Genocide
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3.4 The Special Tribunal for Lebanon 3.4 The Special Tribunal for Lebanon
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3.4.1 The Hariri Assassination and its Context 3.4.1 The Hariri Assassination and its Context
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3.4.2 Jumping to Conclusions 3.4.2 Jumping to Conclusions
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3.4.3 UN Fact‐Finding Mission 3.4.3 UN Fact‐Finding Mission
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3.4.4 UN International Independent Investigation Commission 3.4.4 UN International Independent Investigation Commission
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3.4.5 A Tribunal of an ‘International Character’… 3.4.5 A Tribunal of an ‘International Character’…
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3.4.6 …Based on an Agreement… 3.4.6 …Based on an Agreement…
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3.4.7 …Signed but not Ratified… 3.4.7 …Signed but not Ratified…
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3.4.8 …Then Pushed Through by a Chapter VII Resolution… 3.4.8 …Then Pushed Through by a Chapter VII Resolution…
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3.4.9 …By a Divided Security Council 3.4.9 …By a Divided Security Council
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3.4.10 Selectivity and the Instrumentalization of International Criminal Justice 3.4.10 Selectivity and the Instrumentalization of International Criminal Justice
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4 Revisiting the Killing Fields: The Extraordinary Chambers in the Courts of Cambodia 4 Revisiting the Killing Fields: The Extraordinary Chambers in the Courts of Cambodia
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4.1 Americanization of the Killing Fields 4.1 Americanization of the Killing Fields
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4.2 Nudging Cambodia, Enlisting the UN 4.2 Nudging Cambodia, Enlisting the UN
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4.3 Chinese Resistance 4.3 Chinese Resistance
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4.4 Leveraging Foreign Aid 4.4 Leveraging Foreign Aid
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4.5 Report of the Group of Experts 4.5 Report of the Group of Experts
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4.6 Cambodian Ambivalence 4.6 Cambodian Ambivalence
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4.7 Protracted Negotiations 4.7 Protracted Negotiations
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4.8 Delaying Ratification 4.8 Delaying Ratification
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5 The (Not So) Serious Crimes Regime in East Timor 5 The (Not So) Serious Crimes Regime in East Timor
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5.1 Indonesian Invasion and International Response 5.1 Indonesian Invasion and International Response
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5.2 Referendum Violence and International Response 5.2 Referendum Violence and International Response
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5.3 Calls for Accountability 5.3 Calls for Accountability
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5.4 The ‘Serious Crimes Regime’: Mixed Judicial Panels and International Prosecutors 5.4 The ‘Serious Crimes Regime’: Mixed Judicial Panels and International Prosecutors
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5.5 Not So Serious 5.5 Not So Serious
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6 In the Shadow of the ICTY: International Prosecutors in Kosovo and Bosnia 6 In the Shadow of the ICTY: International Prosecutors in Kosovo and Bosnia
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6.1 The UNMIK Court System 6.1 The UNMIK Court System
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6.2 The State Court of Bosnia and Herzegovina 6.2 The State Court of Bosnia and Herzegovina
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6.2.1 Special Department for Organized Crime, Economic Crime and Corruption 6.2.1 Special Department for Organized Crime, Economic Crime and Corruption
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6.2.2 Special Department for War Crimes (‘Bosnia War Crimes Chamber’) 6.2.2 Special Department for War Crimes (‘Bosnia War Crimes Chamber’)
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7 US Prosecutors in Africa: The Special Court for Sierra Leone 7 US Prosecutors in Africa: The Special Court for Sierra Leone
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7.1 Anarchy and Amnesty 7.1 Anarchy and Amnesty
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7.2 Keeping the Options Open 7.2 Keeping the Options Open
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7.3 The Return of Anarchy and the Arrest of Sankoh 7.3 The Return of Anarchy and the Arrest of Sankoh
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7.4 Self‐Referral Avant la Lettre 7.4 Self‐Referral Avant la Lettre
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7.5 ‘We are making this up as we go along’ 7.5 ‘We are making this up as we go along’
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7.6 Security Council U‐Turn 7.6 Security Council U‐Turn
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7.7 A Truly Hybrid Tribunal 7.7 A Truly Hybrid Tribunal
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8 Making Good on Nuremberg: The International Criminal Court 8 Making Good on Nuremberg: The International Criminal Court
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8.1 Non‐Governmental Actors and the ICC 8.1 Non‐Governmental Actors and the ICC
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8.2 Through the Back Door 8.2 Through the Back Door
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8.3 A Seat at the Table 8.3 A Seat at the Table
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8.4 US–EU Collision over ICC 8.4 US–EU Collision over ICC
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8.5 American Service‐Members’ Protection Act 8.5 American Service‐Members’ Protection Act
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8.6 The EU Common Position and Action Plan on ICC 8.6 The EU Common Position and Action Plan on ICC
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8.7 A Post‐Modern Court 8.7 A Post‐Modern Court
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9 Conclusions 9 Conclusions
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2 The Politics of Establishing International Criminal Tribunals
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Published:May 2012
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Abstract
This chapter presents a reconstruction of the historical and political context of the establishment of international tribunals. It looks at the political history of eleven courts employing international prosecutors and investigators. It starts with the Nuremberg International Military Tribunal and ends with the International Criminal Court. In between lie the three ad hoc tribunals established or initiated by the UN Security Council (the International Criminal Tribunal for the former Yugoslavia, the International Criminal Tribunal for Rwanda, the Special Tribunal for Lebanon); the hybrid mechanisms set up in Cambodia (the Extraordinary Chambers in the Courts of Cambodia), East Timor (the Serious Crimes Regime in East Timor), Kosovo (the United Nations Interim Administration Mission in Kosovo (UNMIK) court system), and Bosnia (the State Court of Bosnia and Herzegovina); and the somewhat unique Special Court for Sierra Leone.
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