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Recent Developments

Prosecutor v Thomas Lubanga Dyilo: The First Judgment of the International Criminal Court’s Trial Chamber

Triestino Mariniello

On 14 March 2012, the Trial Chamber I of the International Criminal Court (ICC) delivered its first judgment in the first completed trial in the case against Thomas Lubanga Dyilo. Lubanga was found guilty as a co-perpetrator in the conscription and enlistment of children under the age of fifteen years and of using them to participate actively in hostilities. This article comments on the significance of the ICC judgment in the Lubanga case. It argues that the judgment contributes to the development and improvement of the normative value of international criminal law. It is also argued that the Lubanga judgment may offer interesting insights on the socio-pedagogical role of international criminal justice. Indeed, it is observed that it contributes to strengthening the sense of accountability for recruiting and using child soldiers, by stigmatising such acts as contrary to the fundamental values of the international community.

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Triestino Mariniello

Between 1 January 2012 and 31 December 2012 the Chambers of the International Criminal Court (ICC) delivered several notable judgments and decisions. This comment highlights the most important developments with regard to substantive and procedural law. In so doing, it does not pretend to be a comprehensive overview or exhaustive compilation of all judgments and decisions handed down by the ICC.1

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International Criminal Court

Selected Developments in 2013

Triestino Mariniello

Between 1 January 2013 and 31 December 2013 the Chambers of the International Criminal Court (icc) delivered several notable judgments and decisions. This comment highlights the most important developments in 2013 concerning pre-trial proceedings, trial proceedings, appeal proceedings, complementarity principle and other developments.

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Triestino Mariniello

Legislative acts or constitutional courts’ decisions allowing the prosecution of alleged perpetrators of international crimes committed in the past continue to attribute to the legality principle a central role within domestic criminal proceedings or complaints before the European Court of Human Rights. This article assesses the evolution of the recent jurisprudence of the Strasbourg Court, which in the 2008 Korbely and Kononov cases for the first time extended the standards of the legality principle over war crimes and crimes against humanity. It examines the rationale for this development, which constitutes an attempt by the Court to restore a proper balance between substantive justice and individual protection, by ascertaining whether domestic convictions were consistent with the qualitative elements of the legality principle, such as accessibility and foreseeability. Through a detailed analysis of the European jurisprudence, the article argues that, although the new approach of the Court entails in abstracto a strengthening of individual safeguards from the arbitrariness of state power, the meaningful protection of the legality principle may be in concreto significantly narrow. The reasons for such a result are two-pronged: first, the Court seems to provide an interpretation of past law which radically diverged from the interpretation of the law in place in the legal system at the material time of the events; second, the international sources accepted by the Court as a valid basis for the applicants’ convictions – pursuant to the standards of the legality principle – were intended to create obligations only upon states, rather than individuals.

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Edited by Paolo Lobba and Triestino Mariniello

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Edited by Paolo Lobba and Triestino Mariniello

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Judicial Dialogue on Human Rights

The Practice of International Criminal Tribunals

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Edited by Paolo Lobba and Triestino Mariniello

Judicial Dialogue on Human Rights offers a critical legal perspective on the manner in which international criminal tribunals select, (re-)interpret and apply the principles and standards formulated by the European Court of Human Rights. A part of the book is devoted to testing the assumption that the current practice of cross-referencing, though widespread, is incoherent in method and erratic in substance. Notable illustrations analysed in the book include the nullum crimen principle, prohibition of torture, hearsay evidence and victims’ rights. Another section of the book seeks to devise a methodologically sound ‘grammar’ of judicial dialogue, focussing on how and when human rights concepts may be transferred into the context of international criminal justice.