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Judicial Creativity at the International Criminal Tribunals$
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Shane Darcy and Joseph Powderly

Print publication date: 2010

Print ISBN-13: 9780199591466

Published to Oxford Scholarship Online: January 2011

DOI: 10.1093/acprof:oso/9780199591466.001.0001

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Procedural Lawmaking at the International Criminal Tribunals

Procedural Lawmaking at the International Criminal Tribunals

(p.315) 13 Procedural Lawmaking at the International Criminal Tribunals
Judicial Creativity at the International Criminal Tribunals

Göran Sluiter (Contributor Webpage)

Oxford University Press

This chapter examines the role played by the judges in creating the procedural rules which govern the functioning of the ad hoc Tribunals. Noting that the bench had been tasked with devising its own rules of procedure and evidence, it queries whether judicial lawmaking in this context at the Tribunals has proven effective on the whole. It highlights the lack of transparency regarding the process of amending the Rules of Procedure and Evidence, and the possibility that this lawmaking power may undermine judicial independence and conceptions of the separation of powers. In considering possible lessons to be learned, the chapter asks whether the ad hoc Tribunals may themselves have contravened international human rights law, most notably in relation to the mechanism allowing for provisional release.

Keywords:   international criminal law, procedure, provisional release, judicial creativity, judicial independence

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