Challenging international criminal tribunals before domestic courts

International courts, despite the wide-ranging means that have been put at their disposal, need the cooperation of various domestic actors. The cooperation of States with international criminal tribunals has not always been without difficulty, as these tribunals have been the object of various challenges before domestic judges. The aim of this paper is, from a general international law perspective, to examine these instances of case-law as well as to try and shed some light on the answers that have been provided by domestic judges confronted with such challenges of international criminal tribunals.

The first part of this chapter gives a brief sketch of recent cases in which an international criminal tribunal was challenged before a domestic court, whether or not this actually led to a judicial review of the tribunal’s action or existence (I). In the second section (II), the chapter briefly seeks to outline the various contexts in which international criminal tribunals are put to the test before domestic courts (II.1), as well as the object (II.2) and the standards (II.3) used in such a challenge and, eventually, the form which an actual review may take (II.4). In a third part, this chapter attempts to formulate some thoughts on how domestic judges have justified their (refusal to engage in a) review of international criminal courts.. We argue that discussions about the entitlement vel non of domestic courts to review international criminal tribunals bespeak two discourses, each of them leading to a different understanding of the role and place of these tribunals as well as their autonomy (III). The one discourse proceeds from the idea of supremacy of the international legal order and henceforth of international (criminal) proceedings. The other rests on the idea of the closeness of the domestic legal order, and consequently the prevalence of domestic law at the national level. This is what we call the discourse of constitutional autonomy. As will be shown, recourse to one discourse never implies a complete exclusion of the other : domestic judges confronted with the challenge of an international criminal tribunal often seem to borrow from both discourses.