Drawing a line between victims and non-victims in the context of gross violations of international humanitarian and international human rights law is not an easy task. On the one hand, mass atrocities lead to widespread victimisation of individuals, groups and communities who suffer from various types of harm and damage incurred in the process of their commission. On the other hand, clearly not every person affected by an ongoing conflict and mass criminality should be considered an injured party. This article addresses such conceptual dilemmas by casting light on the function of family relations as grounds of indirect victimhood. To this end, it identifies two theoretical models of victimhood and showcases how they have been put into practice by international and hybrid courts and tribunals in their respective reparative and punitive regimes.

The conventional historic account maintains that international criminal law (ICL) was ‘born’ after the Second World War. This account is incomplete, as William Schabas's book, The Trial of the Kaiser (2018), captivatingly shows by richly portraying the (aborted) First World War initiative to try the German Kaiser before an international tribunal. However, this article (after providing an overview of Schabas's book) argues that Schabas's account of a First World War ICL ‘birth’ is also incomplete. ICL during the First World War era was but one link in a much longer historical chain. The essay demonstrates this fact by presenting certain elements of the long (forgotten) history of ICL, which provide answers to questions that have been left unanswered, not only by the conventional account (of a Second World War ICL ‘birth’) but also by Schabas's account (of a First World War ICL ‘birth’). As the article discusses, the unveiling of a greater ICL history indicates that international criminal tribunals are not a modern innovation, and reveals the origins of ‘crimes against humanity’, of ‘aggression’ and of the universal jurisdiction doctrine. The essay further discusses reasons for the non-remembrance of the long history of ICL, the importance of acknowledging that history, and the likelihood of it becoming widely acknowledged in the near future.

What role have international legal scholars played in the development of international criminal law? Building on recent studies of the citation practices of international courts, the article provides an empirical assessment of the use and functions of citations to scholarly writings in the judgments of international criminal courts and tribunals. Using a mixed-methods approach, the article combines: a) a quantitative analysis of judgments interpreting the law of war crimes across four international and hybrid courts; with b) qualitative interviews with judges and legal officers at the International Criminal Court (ICC), the ad hoc Tribunals, and the Special Court for Sierra Leone (SCSL). The article argues that scholarly writings have been strikingly visible in the judgments of international criminal courts and tribunals, and especially at the ICC, which entails significant implications for the functions of academic writings and the role of international legal scholars.

The increased use of information and communication technologies arguably represents important opportunities for the field of transitional justice, notably with respect to the optimization of existing mechanisms and the development of new ones. This article focuses on state-based and typically very formal mechanisms, namely international, internationalized and national criminal tribunals as well as truth and reconciliation commissions. These institutions often apply and engage with international law and operate with the involvement or under the close scrutiny of the international community. Moreover, they can be expected to be the first ones to embrace insights from the field of cyberjustice to a significant extent.

Enhancing access to and participation in such mechanisms, rendering them more cost-efficient and facilitating information-sharing would correspond to generally accepted norms relating to both international human rights and justice. However, cyberjustice initiatives may also entrench an already common ‘toolkit approach’ in the field of transitional justice. This article builds on recent critiques of the dominant legalistic and normatively driven transitional justice paradigm and argues that transitional justice + cyberjustice hence risks furthering a technocratic top-down approach that unduly limits creative solutions. By adopting a critical legal-pluralistic approach that conceives individuals as law-creative actors and that is cognizant of the close relationship between means and ends, the article imagines ways of benefiting from the promises of transitional justice + cyberjustice.

International criminal justice is on one level a project of hubris and promise, but on another level a project arguably riddled by anxieties. These anxieties are linked to the dizziness of choices available to it, and the degree to which every move to compensate for anxieties produces its own form of anxiety. This article surveys ten distinct anxieties that are deemed to be constitutive of the movement. Ultimately, it argues that the neurotic nature of international criminal justice can be the source of its creativity and resilience.

The rule of law has emerged both on the domestic and international levels as a promise of longstanding democracy, economic development and peace. On both levels, the rule of law is often associated with the longstanding character of institutions and the predictability of rules, meaning that ‘citizens are entitled to laws that are neither murky nor uncertain’. However, does this always mean in practice that the rule of law can only be concretized by laws and legal institutions that last forever? More specifically in the international context, can we guarantee the consolidation of the international rule of law through the coexistence of both permanent and temporary institutions and instruments? In this chapter, I analyse the meaning of the rule of law at the domestic and international levels and discuss its complex relationship with time. I argue that the past, present and future of the rule of law can be, in some cases, united by the use of temporary institutions such as international criminal tribunals or truth commissions, rules and measures. Temporariness can be essential to react swiftly to humanitarian crises, provide transitory justice, gradually concretize the rule of law in fragile democracies, and adapt legal orders to evolving economic and political circumstances.

Having identified the differences between the concept of legality and the much more complex concept of legitimacy, the author scrutinizes the legality and the legitimacy of the existing international criminal tribunals. Their legality has been put in doubt only concerning the International Criminal Tribunal for the former Yugoslavia (ICTY) and the Special Tribunal for Lebanon (STL), but the criticisms have been or could be overcome. Assessing the legitimacy of these tribunals is instead a more difficult task. In fact, misgivings have been voiced essentially concerning the legitimacy of the ICTY and the STL, but not the International Criminal Court (ICC) and the other international criminal courts. The legitimacy of the STL in particular deserves to be discussed: even assuming that the STL initially lacked some forms of legitimacy, it could achieve it – or confirm it – through its ‘performance legitimacy’. The author then suggests what the realistic prospects for international criminal justice are. Convinced as he is that it is destined to flourish even more, he tries to identify the paths it is likely to take in future years.

This article examines the analytical framework and key arguments used by K. Ambos to conclude that witness proofing is neither a legally permissible nor necessary useful practice before the ICC in his reply to ‘Witness Proofing in International Criminal Tribunals: A Critical Analysis of Widening Procedural Divergence’. Contrary to Ambos, the article argues that witness proofing cannot be both acceptable at the UN international criminal tribunals and per se inappropriate at the ICC, given the ICC's procedural regime allowing for trials to be conducted in a form almost identical to those of the UN tribunals. A related argument is that the practice of witness proofing is not prohibited in the law governing the ICC, even if not provided for. Further arguments conclude that reliance upon spontaneity of a witness in court as a guarantee of reliability is misplaced, that the merits of national practices are irrelevant to the overall analysis, and that international judges are competent to manage the negligible risks associated with witness proofing.

Witness proofing – or preparation – is an adjunct of the adversarial criminal trial process. It is also a common practice at the UN international criminal tribunals, where it has been repeatedly challenged, analysed, and endorsed. Recently, a trial chamber at the ICC prohibited the prosecutor from proofing witnesses, seemingly calling upon the institution, at an early stage, to break with the established practice of proofing at the UN international criminal tribunals. This article examines witness proofing in international criminal procedure with the aim of describing and weighing its relative merits, and arguing that proofing – as practised at the UN international criminal tribunals – appears to be a better modality for enhancing the efficiency, integrity, and legitimacy of the truth-seeking function of international criminal trials than does prohibiting the practice.

The Special Tribunal for Lebanon is the latest international criminal tribunal to be established by the United Nations. Similar in many respects to the earlier institutions – for the former Yugoslavia, Rwanda, and Sierra Leone – it stands alone in the fact that its subject-matter jurisdiction does not contain any international crimes. It is thus international in some respects, but it is arguably not an international criminal tribunal in the sense that was intended by the International Court of Justice in the Yerodia case. The drafting history of the Statute of the Special Tribunal is examined with a view to determining whether the new court should treat sovereign immunity in the same manner as the other three UN criminal tribunals.

Discussions on the creation of the Special Tribunal for Lebanon have focused on its impact on Lebanese sovereignty and, specifically, the fact that a Chapter VII resolution seems to bypass Lebanese democracy. Simply relying on the idea of a ‘breach of international peace and security’ to overcome these arguments is not helpful. It is more useful to locate the creation of the Tribunal within evolving international criminal justice practices. These practices are increasingly constraining the Security Council's own work rather than the contrary, as international criminal justice gradually emancipates itself from the confines of ‘international peace and security’ and becomes a logic unto itself.

This article considers the suitability of employing particular modes of imputed criminal liability in trials before international criminal tribunals. It focuses specifically on the doctrines of joint criminal enterprise and superior responsibility, two forms of liability which are central to many contemporary international criminal proceedings. Both doctrines can involve a broad form of criminal liability which may not be entirely appropriate when one considers the context in which such trials take place and the significance which often attaches to them. Proponents of international justice have contended that the contribution of these trials goes beyond basic accountability and providing justice for victims, extending also to peacemaking, reconciliation, deterrence, and the creation of a historical record. This article queries whether aspects of joint criminal enterprise liability and superior responsibility are appropriate when international justice is viewed in this light.

The principle of judicial precedent set out by the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia raises the five following issues. (i) Is the Appeals Chamber bound by its previous decisions? (ii) Are the trial chambers bound by Appeals Chamber decisions on both legal and factual issues? (iii) Are the trial chambers bound by the decisions of other trial chambers? (iv) Is the Appeals Chamber of the ICTY bound by the decisions of the Appeals Chamber of the International Criminal Tribunal for Rwanda (ICTR) and vice versa? (v) Are the trial chambers of the ICTR bound by the decisions of the ICTY Appeals Chamber and vice versa? The author of this article aims to show that the Appeals Chambers, most trial chambers and individual judges of the International Criminal Tribunals comply with the principle of judicial precedent. However, the principle of judicial precedent is arguably weak, because it was established by case law only. The author also intends to demonstrate that the trial chambers and an individual trial judge of the ICTY have recently departed from the practice of judicial precedent in sensitive legal areas, that is (i) the test to be applied to a motion for a judgement of acquittal; (ii) the issue of evidence; (iii) the standard to be applied to a motion for cross-access to confidential documents in other cases; and (iv) the issue of provisional release.