ABSTRACT
This chapter starts with a short presentation of the research findings in the success rates of jurisdictional challenges before the International Criminal Tribunal for the former Yugoslavia, the International Criminal Tribunal for Rwanda, the Special Court for Sierra Leone and the International Criminal Court (ICC). It analyses the reasons for the low success rate of defence challenges to jurisdiction. Arguably, defence counsel have also contributed to this overwhelmingly negative history of jurisdictional challenges. As the record shows, defence teams filed ‘motions challenging the jurisdiction’ of an ICC or tribunal, even when it was reasonably clear that they had no chance of success or they sought to achieve objectives other than a finding on jurisdiction. The ad hoc tribunals took the view that defence challenges to jurisdiction raising issues requiring proof of facts are inadmissible and should be reserved for the merits of the case.
