In search of the 'vertical': An exploration of what makes international criminal tribunals different (and why)
David Bourget (Western Ontario)
David Chalmers (ANU, NYU)
Rafael De Clercq
Jack Alan Reynolds
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International criminal tribunals have often claimed that they are in a 'vertical' relationship vis-a-vis states that is fundamentally different from 'horizontal' international criminal law, as exists between states. Although there are many studies of specific aspects of that claim to verticality (for example, the power to order subponea), there have few attempts to systematically study all the possible ways in which international criminal tribunals could be described as being distinctly 'vertical'. More importantly, international criminal justice still lacks a comprehensive theory of what it is that allows international criminal tribunals to claim 'verticality'.This chapter seeks to remedy these shortcomings. It argues that 'verticality' is truly the defining feature of the tribunals as institutions of international criminal justice, not only for the purposes of analyzing cooperation, but also to understand complex issues of jurisdiction. The chapter also develops a theory of the foundations of verticality, by arguing that it is only tenuously anchored in the law, and should be understood more broadly as an affirmation of international criminal tribunals' separate identity. That identity is indissociable from international criminal justice's claim to emancipate itself from the inter-state world.
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