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Defenses in Contemporary International Criminal Law. By Geert-Jan G. J. Knoops. Ardsley NY: Transnational Publishers, 2001. Pp. xxxviii, 287. Index. $125.
Published online by Cambridge University Press: 27 February 2017
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References
1 Davidson, Eugene , The Trial of The Germans: an Account of the Twenty-Two Defendants Before The International Tribunal at Nuremberg 17 (1997)Google Scholar.
2 Laternser, Hans, Looking Back at the Nuremberg Trials with Special Consideration of the Processes Against Military Leaders, 8 Whittier L. Rev. 557, 565 (1986)Google Scholar (Laternser served as chief counsel for the German High Command and the German General Staff at Nuremberg).
3 Quoting, in part, the Tribunal’s president, Lord Justice Geoffrey Lawrence, in Drexel A. Sprecher, 2 Inside the Nuremberg Trial: A Prosecutor’s Comprehensive Account 746-47 (1999).
4 Frank Reel, A. , the Case of General Yamashita 7–11 (1949)Google Scholar.
5 See, e.g., Q, Katherine. Seelye, Just Who Would Want to Defend Suspects Before a Tribunal? Probably Plenty, N.Y. Times, Dec. 28, 2001 Google Scholar, at B6; Hendren, John, Lawyers in Tribunals to Face Daunting Task, L.A. Times, Dec. 29, 2001 Google Scholar, at A3.
6 See S, Kenneth. Gallant, , Individual Human Rights in a New International Organization: The Rome Statute of the International Criminal Court, in 3 M. Cherif Bassiouni, International Criminal Law 693 (2d ed. 1999)Google Scholar.
7 Amnesty International, The International Criminal Court: Making The Right Choices—Part I: Defining The Crimes and Permissible Defences and Initiating Prosecution 8-9 (Jan. 1997).
8 Amnesty International, the Quest Forinternational Justice: Defining the Crimes and Defenses for the International Criminal Court 2 (Feb. 1997) (emphasis added).
9 Id. at 13-14.
10 See, e.g., Amnesty International, the International Criminal Court: Making the Right Choices —Part II: Organizing the Court and Guaranteeing a Fair Trial (July 1997). In 1998, Amnesty published an excellent manual on fair trials in international human rights law. Amnesty International, Fair Trials Manual (1998).
11 To similar effect, though involving a minister of foreign affairs rather than a head of state, see Arrest Warrant of 11 April 2000 (Dem. Congo v. Belg.) (Int’l Ct. Justice Feb. 14, 2001), at <http://www.icj-cij.org>.
12 For a discussion of the elements of rape in the decisions in Akayesu (ICTR) and in Delalić and Furundžija (ICTY), see John, R. W. D. Jones, , The Practice of the International Criminal Tribunals for the Former Yugoslavia and Rwanda 117–18 (2000)Google Scholar (“any form of captivity vitiates consent”).
13 The “law of the facts” refers to an argument that the law of the case should emerge from the case itself rather than from general historical principles on the substantive law of ICL defenses: “In the antagonistic area of these defenses one has to accept that sometimes the facts condition the law, as opposed to the law conditioning the facts” (p. 285). “Equality of arms” is what Knoops calls a “sub-principle” of the right to fair trial, “whereby the accuser and accused are equal in procedural perspective” (p. 221).
14 Toxicological defenses are those that arise from such conditions as voluntary or involuntary intoxication (drug or alcohol induced) or diabetic poisoning. Neurobiological or genetic defenses are those tied in with the principle of neural science that “behavior is an expression of neural activity”—an area of defenses that “has not yet been established in criminal law,” according to Knoops (p. 126).
15 Knoops borrows the term “judicial legislation” from Brownlie, Ian, the Rule of Law in International Affairs 28 (1998)Google Scholar (cited in Defenses in Contemporary International Criminal Law at p. 1).
16 See Paul H. Robinson, 1 Criminal Law Defenses 83-101 (1984).
17 A more precise conclusion would suggest the use of the phrase “international crimes” instead of “war crimes,” as the latter include only those crimes committed in armed combat, which narrows the principle beyond what seems to be the author’s frame of reference.
18 Typical was this passage to support the defense of duress as impulsive acting out:
[A] study by Coccaro indicates that reduced central 5-HT post-synaptic receptor function in the limbic-hypothalamic system is associated with a trait dysregulation of impulse control, the presence of which enhances the likelihood of self- and/or other-directed aggressive behavior, given appropriate environmental triggers. (P. 247)
19 J, Richard. Wilson, , Assigned Defense Counsel in Domestic and International War Crimes Tribunals: The Need for a Structural Approach, 2 Int’l Crim. L.Rev. (forthcoming 2002)Google Scholar.
20 Id.
21 ICTY, Code of Professional Conduct for Defence Counsel Appearing Before the International Tribunal (June 1997); ICTR, Code of Professional Conduct for Defence Counsel (June 1998).
22 See, in particular, the ruling of the ICTY trial chamber in Prosecutor v. Furundžija, No. IT-95-17/1-T, Trial Chamber’s Formal Complaint to the Prosecutor Concerning the Conduct of the Prosecution (June 5, 1998). The complaint’s allegations included: a pattern of violating court orders or rules; last-minute filings; and failing to provide an adequate explanation to the trial chamber for the alleged misconduct.
23 A recent UN report found credible evidence of fee splitting. Report of the Office of Internal Oversight Services on the Investigation into Possible Fee-Splitting Arrangements Between Defence Counsel and Indigent Detainees at the International Criminal Tribunal for Rwanda and the International Tribunal for the Former Yugoslavia, UN Doc. A/55/759 (2001); see Prosecutor v. Joseph Nzirorera, No. ICTR-98-44, Decision on Nzirorera’s Motion for Withdrawal of Counsel (Oct. 3, 2001) (defense counsel admits to agreement with accused for a fee-splitting arrangement).
24 I have addressed this issue from a historical perspective in a recent book chapter. J, Richard. Wilson, , Will History Repeat Itself? Case Studies of Systemic Constraints on Defense Counsel in International War Crimes Trials and the Need for Resource Parity, in Effective Strategies for Protecting Human Rights: Economic Sanctions, Use of National Courts and International Fora, and Coercive Power 187 (David Barnhizered., 2001)Google Scholar.
25 Wladimiroff, Michail, The Assignment of Defense Counsel Before the International Criminal Tribunal for Rwanda, 12 Leidenj. Int’l L. 2 (1999)Google Scholar.
26 See, e.g., H, Monroe. Freedman, , Lawyers’ Ethics in an Adversary System (1975)Google Scholar; H, William. Simon, , The Ethics of Criminal Defense, 91 Mich. L. Rev. 1703 (1993)Google Scholar; Luban, David, Are Criminal Defenders Different? 91 Mich. L. Rev. 1729 (1993)Google Scholar; Smith, Abbe, Defending Defending: The Case for Unmitigated Zeal on Behalf of People Who Do Terrible Things, 28 Hofstra L. Rev. 925 (2000)Google Scholar.