
Contents
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A. Introduction A. Introduction
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B. Practice: a sketch B. Practice: a sketch
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C. Challenge and review of international criminal tribunals before domestic courts: toward a taxonomy C. Challenge and review of international criminal tribunals before domestic courts: toward a taxonomy
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1. Context and objective of challenges of international criminal tribunals 1. Context and objective of challenges of international criminal tribunals
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Transfer of persons: extradition and surrender Transfer of persons: extradition and surrender
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Collection of evidence Collection of evidence
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Release from detention (habeas corpus) Release from detention (habeas corpus)
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Other requests Other requests
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2. Object of the challenge 2. Object of the challenge
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3. Standards of reference 3. Standards of reference
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Domestic standards of reference Domestic standards of reference
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International standards of reference International standards of reference
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4. Forms of review 4. Forms of review
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D. International criminal justice in the domestic legal order: two discourses D. International criminal justice in the domestic legal order: two discourses
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1. The discourse of supremacy 1. The discourse of supremacy
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Supremacy and conflict of norms Supremacy and conflict of norms
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Supremacy and the obligatory character of the acts of international organizations Supremacy and the obligatory character of the acts of international organizations
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Supremacy and primacy of international courts Supremacy and primacy of international courts
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Supremacy and ‘surrender’ Supremacy and ‘surrender’
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2. The discourse of constitutional autonomy 2. The discourse of constitutional autonomy
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Constitutional autonomy and ‘extradition’ Constitutional autonomy and ‘extradition’
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Constitutional autonomy and other domestic procedural requirements Constitutional autonomy and other domestic procedural requirements
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Constitutional autonomy and domestic ‘fundamental values’ Constitutional autonomy and domestic ‘fundamental values’
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Constitutional autonomy and self-restraint Constitutional autonomy and self-restraint
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3. Moving between supremacy and constitutional autonomy 3. Moving between supremacy and constitutional autonomy
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E. Concluding remarks E. Concluding remarks
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5 Challenging International Criminal Tribunals Before Domestic Courts
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Published:September 2010
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Abstract
This chapter demonstrates that in the field of international criminal law decisions of international courts and tribunals have recurrently been challenged before national courts. Since most international criminal courts and tribunals are either organs of international organizations, such as the International Criminal Tribunal for the former Yugoslavia (ICTY) or the International Criminal Tribunal for Rwanda (ICTR), or enjoy the status of an international organization (International Criminal Court), putting their judgments into question amounts to challenging the acts of an international organization. It is against the backdrop of the obligation of States to cooperate with these international tribunals that national courts have often been called upon to address such challenges, mostly in the context of the transfer of a suspect. In these cases, they have faced a dilemma arising out of the need to secure the independent and efficacious functioning of the international tribunal while simultaneously safeguarding domestic fundamental rights.
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