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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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Trying Cases at the International Criminal Tribunals in the Absence of the Accused?

Trying Cases at the International Criminal Tribunals in the Absence of the Accused?

Chapter:
(p.332) 14 Trying Cases at the International Criminal Tribunals in the Absence of the Accused?
Source:
Judicial Creativity at the International Criminal Tribunals
Author(s):

Håkan Friman

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780199591466.003.0015

This chapter addresses the judicial treatment of procedural rules at the bench through the lens of in absentia trials and the substitute Rule 61 procedure developed by the ad hoc Tribunals. It explains that the divergent approach of lawyers from different legal traditions is central to questions relating to the legitimacy of procedural lawmaking by judges. In investigating how judges have addressed their role as procedural lawmakers at the ad hoc Tribunals, the chapter observes that the judges have treated this role with due diligence and have acted responsibly. It considers the various safeguards relating to in absentia trials, drawn from the various approaches in national law and the findings of human rights bodies. In evaluating the practice of the ICTY on this matter, it finds that this requires an assessment which not only considers legal aspects, but also considers systemic and political factors.

Keywords:   international criminal law, in absentia trials, judicial creativity, national law, human rights

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