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(p 299), but rather must be made an integral part of the further development of
the WB and the IMF.

Gerd Oberleitnern

Cesare P.R. Romano, AndreŁ Knollkaemper and Jann K. Kle¡ner (ed),

Internationalized Criminal Courts: Sierra Leone, East Timor, Kosovo and
Cambodia, Oxford: Oxford University Press, 2004, lviii þ 491pp, hb d75.00.

The proliferation and hybridisation of international criminal courts has been both
praised and criticised in isolated articles. However, prior to this collection of
papers there have been few attempts to tackle in a single volume the numerous
substantive issues raised by such institutions. The book is divided into three parts,
and provides a wealth of descriptive and analytical content on the establishment
and functioning of ‘second generation’ international courts and tribunals, with
some minor observations on doctrinal aspects of international criminal law
a¡ected by the phenomena. The twenty-one contributions include a gamut of
actors from the Tribunal scene, o¡ering ¢rst hand insights but disparate levels of
analysis. Part I contains two introductory pieces by Cassese and Shraga. Part II
examines the four ‘internationalised’ courts and tribunals, namely, those for
Kosovo, East Timor, Sierra Leone and Cambodia. Part III provides a further ten
papers on‘cross cutting issues’.
Cassese’s opening paper makes the case that ‘in principle, national courts are the
most appropriate forum for adjudicating international crimes’ (p 4). As a conse-
quence, he asserts that international courts ought to be a last resort, used in‘excep-
tional circumstances’ (p 5), and that ‘internationalised’ or hybrid courts are an
interesting option to be used when political circumstances permit. All the contri-
butors, bar the last ^ Alain Pellet ^ tend to agree with Cassese’s general principle,
and endeavour to analyse the nature and implications of this recent institutional
development. Pellet takes a pure international law stance in his rather sceptical
paper ‘Internationalized Courts: Better than Nothing’ (an apposite title). He
maintains that ‘international crimes demand truly international justice [. . .] if the
very concept of concern to the international community as a whole is to be taken ser-
iously, there is no reason why this concern should be subordinated in any respect
to national concerns or interests’ (p 439). Presumably referring to whether inter-
national criminal justice is better or worse o¡ as a result of such compromises,
Pellet treats the issue simply as a matter of ‘personal disposition’ as to whether
‘the bottle will be seen as half full or half empty’. His analysis is perhaps indicative
of the books’ general lack of theoretical abstraction regarding the paradigm shift
in international criminal justice.
The second generation tribunals considered here are ‘country-speci¢c’, and
‘consensual’ projects which defy the ‘one size ¢ts all’ ¢rst generation model of the
Security Council created ad hoc Tribunals for the former Yugoslavia and for
Rwanda. Second generation tribunals emerged out of necessity in what has been

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Institute of International Law and International Relations, University of Graz.

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called a climate of ‘tribunal fatigue’. In this regard, critiques of remoteness and

irrelevance, as well as bulging costs and delay have pushed the underlying theories
of international criminal justice to new limits. The classic tensions between justi-
¢cations for punishment on the basis of ‘utility’ or ‘retribution’ found in domestic
criminal theory are manifested on the international plane as tensions between
‘peace’ and ‘justice’. The new theoretical ideal of hybrid tribunals elevates the
sovereign domestic context to an equal footing with the international jurisdic-
tion. It seeks to address the apparent failure of the ad hoc model to deliver su⁄-
ciently on consequentialist concerns for peace and national reconciliation.
Pandering to the intuitive logic of local ownership, capacity building and par-
ticipation, second generation tribunals are always located in the country where
the atrocities took place. They are sta¡ed to varying degrees by national as well
as international judges and prosecutors. They include o¡ences under domestic
law, and are ‘embedded in, or grafted onto the national legal order which renders
them internationalised rather than international’ (p 359). However, in order to
ensure that international standards of justice and impartiality are maintained, they
are ostensibly provided institutional backing by the United Nations.This includes
externally appointed international judges and prosecutors and of-course the
application of international criminal law and international standards of due pro-
cess and human rights.
The authors focus on the multitude of complex new challenges that the
demand for ‘peace-building’ raises for ‘international justice’ at a policy and imple-
mentation level. They generally o¡er evaluations of the extent to which the
hybrid experiences, as implemented, respond to these dual demands, maintaining
a watchful eye on the integrity of the justice process. Shraga’s introductory piece is
exemplary in this respect. Amongst other points, she touches upon the di⁄culty
of arbitrarily limiting prosecutorial reach to only ‘those who bare the greatest
responsibility’. Shraga identi¢es this compromise, symptomatic of the hybrid
genre, as a cornerstone to resolving the ‘United Nation’s dilemma of reconciling
peace and justice’ on the one hand and ‘applying uncompromising international
standards of justice’ on the other (p 24).
In Part II, evaluations of the United Nations Mission in Kosovo court system
underline missed opportunities resulting from de¢ciencies in planning the inter-
nationalised aspect of the justice system across Kosovo from the outset of the mis-
sion. Histories are provided describing the reactive nature of the UNMIK
regulation which belatedly ‘grafted international judges and prosecutors into the
existing system’, following deadly attacks in Mitrovica in 2000, which appeared
to undermine the independence and impartiality of the judiciary (p 51).
Assessments of the‘experiment in justice for East Timor’ (p 96), indicate‘glaring
inadequacies’ (p 97) falling so far short of a commitment to justice that conse-
quentialist assessments are irrelevant. In this respect, de Bertodano raises a crucial
point: ‘it is impossible to achieve justice where the political will [. . .] does not
exist’ (p 96). This conclusion suggests that the success of the hybrid model is con-
tingent on a positive determination that the State is at least ‘willing’ to prosecute
its own o¡enders, even though it may be ‘unable’ to. Interestingly, this reminds us
of the language used in Article 17 of the International Criminal Court, which lays
down rules of ‘complementarity’, whereby cases are only admissible when the

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Court can determine that States are ‘unable’ or ‘unwilling’ to undertake their own
genuine prosecutions.
The examination of the Special Court for Sierra Leone provides perhaps more
promise for the hybrid model. In the most critical of the three papers on it, Smith
suggests that the Court may have gained in legitimacy and legal stature had it
back-dated its temporal jurisdiction to the beginning of the con£ict (1991 instead
of 1996) and included crimes under customary international law within its pur-
view. Nonetheless, Smith’s assessment assumes that the hybrid model gives the
Sierra Leone Court vast potential. Schabas too provides a positive evaluation from
the point of view of the Court’s relationship with the Truth and Reconciliation
Commission which operated in Sierra Leone until mid 2003, stating that ‘the two
bodies [. . .] can work very comfortably together without con£ict or tension [as]
partners in the struggle against impunity’ (p 180).
The Extraordinary Chambers in Cambodia seem to have earned themselves
the position of the least favoured example. Both Etcheson and Meijer’s papers
describe the ‘gargantuan struggle to get to an Agreement’ between the United
Nations and the Government of Cambodia (p 231). In this respect, the United
Nations secretariat was politically rail-roaded by the General Assembly into con-
cluding an Agreement, in the face of fundamental divergence on issues as basic as
whether the Agreement establishing the mixed jurisdiction should, as a Treaty,
prevail over national law. Amongst myriad di⁄culties, Meijer elaborates on the
composition of the Trial and Appeals Chambers, where the Cambodian govern-
ment did not accept the usual majority of international over national judges. In
exchange, the Agreement provides for a super-majority vote allowing the inter-
national judges to ‘block decisions considered political or otherwise’ (p 219). The
contributors condemn this concession, as it builds a deadlock provision into the
court’s constitution which does not bode well for an e¡ective judicial process.
As regards the‘cross cutting issues’ of Part III, these papers, focussing on matters
such as sta⁄ng and ¢nancing have a hard sell. In their defence, Romano’s article
on mixed sta⁄ng and independence of the judiciary brings some unique insights
to bear, concluding that: ‘foreign judges and prosecutors in internationalized
courts are a new species...partly peace-keepers as they are dispatched together
with military troops. . .partly diplomats, because they have to walk a very thin
line between application of the law and reconciliation; partly pedagogues, because
they have to instruct their national colleagues; partly scholars, because their deci-
sions will be scrutinized in law schools for years to come; and, of course, judges
and prosecutors as they determine someone’s freedom’ (p 270). Ingadottir elabo-
rates on the chronic under-funding a¥icting hybrid tribunals, suggesting that the
notion of hybridity also includes a compromised budget.The budgets for all four
institutions together amount to a mere fraction of theYugoslavTribunal’s budget
for a year.Whether the lack of su⁄cient support is symptomatic of the paradigm
shift or wholly unrelated is not explored.
Ultimately, the collection of papers begs the question of how to evaluate the
International Criminal Court’s role and response to these hybrid developments,
considering it was modelled on ¢rst generation ad hoc Tribunals. Condorelli
and Boutruche come close to addressing this point. They question whether inter-
nationalised courts are‘a model to be reproduced or instead a development of little

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use in the present international judicial system’ (p 427). However, the question is
left unanswered. Benzing and Bergsmo’s piece, which tentatively explores the
relationship between the International Criminal Court and ‘internationalised jur-
isdictions’, only makes timid overtures as to the guidance, persuasive authority or
supervisory bene¢ts that the ICC might bestow on hybrid jurisdictions.The piece
does not consider that the ICC itself might have much to learn from these recent
hybrid experiences, not least how it will address accusations of remoteness and
irrelevance which a¥icted the ad hocTribunals. Linkages are not made with Cass-
ese’s opening assertions that ‘national courts are the most appropriate forum for
adjudicating international crimes’ (p 4). This leads us to question the scope for
consensual relationships between the International Criminal Court and ‘interna-
tionalized jurisdictions’ in situations where the states are genuinely willing but
unable to prosecute their own o¡enders.
In this respect, Shraga e¡ectively assimilates the learning of the United Nations
in the expansion of international criminal jurisdictions over the last decade. She
notes that ‘the speci¢cities of each con£ict situation has shifted the focus of the
discussion from a search for a model jurisdiction to setting the benchmarks for
UN cooperation in the establishment of mixed tribunals’ (p 37). While subse-
quent authors recognise that the International Criminal Court ‘will not be in a
position to accomplish [its] objectives in isolation’ (p 408), they might have gone
on to suggest that the Court, like the United Nations, will also need to keep learn-
ing and adapting in light of experiences in the ¢eld. The International Criminal
Court might well wish to explore the potential for consensual cooperation with
national jurisdictions.

Mariana Goetz*

Judith Gardam, Necessity, Proportionality and the Use of Force by States,

Cambridge: Cambridge University Press, 2004, 259pp, hb d50.00.
This book is concerned with the development and contemporary legal status of
necessity and proportionality in the international law regimes of jus in bello and jus
ad bellum. As is widely known, the UN charter framework explicitly authorised
the use of force in only two instances: in self-defence or when undertaken by the
Security Council in defence of collective interests. Yet the apparent simplicity of
this framework left many large questions unanswered and has given rise to an
in¢nite variety of radically opposed interpretations in both state practice and in
the literature. Some of these debates have centred on the continued uncertainty as
to whether the Charter sanctioned the use of force in the absence of an armed
attack but where a threat was imminent or reasonably anticipated. Further con-
cerns related to the permissibility under the Charter of the use of force to promote
human rights, especially democratic rights, and to prevent or forestall humanitar-
ian catastrophes. There has been a seemingly endless debate on whether existing
rules of international law can adequately deal with threats from terrorists and
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London School of Economics and Political Science.

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