An Introduction to International Criminal Law and Procedure
... Some scholars have argued that crimes against humanity are as old as humanity itself, and were first established to bridge certain gaps in the law of war. 69 For instance, during the Nuremberg trial, some defendants were charged with war crimes, and crimes against humanity for certain crimes that would now be defined as genocide. 70 However, other scholars believe that crimes against humanity can be traced back to World War I after the enforced displacement and murder of Armenians, denounced by the Allied powers as 'crimes against civilization and humanity'. ...
This is the judgment that never was. The judgment in the High Court proceedings that could have followed Karam v The King (“Karam”) [2023] VSCA 318 (14 December 2023). The judgment of a brave jurisprudentes – the nonexistent eighth Justice of the High Court of Australia – Justice Phantom. If delivered, it would have been a dissenting judgment.
All seven of the actual justices of the High Court of Australia unanimously supported a blanket refusal to hear the case. They sat in secret session à huis clos at some stage and only ‘on the papers’ without a formal hearing that might have allowed the issues in the case to be fully ventilated, simultaneously rejected applications for an extension of time in which to make an application for special leave and dismissed the special leave applications (see: Karam v The King [2024] HCASL 114; Karam v The King [2024] HCASL 115).
Karam was undoubtedly a case of public importance. The fact that all seven Justices of the High Court of Australia were involved in dismissing the applications tends to suggest some form of admission by conduct to that effect. In what has become a regular routine, a full Court constituted by two justices regularly dismisses applications for special leave en bloc.
... Despite the fact that Roman law deals especially with civil law, we see in Book 48 of the Digest that 'the governor should not permit the same person to be again accused of a crime of which he has been acquitted' . 5 However, the understanding of ne bis in idem in Roman law is significantly different from today's modern form. 6 Although the principle of ne bis in idem did not carry the same legal significance then as it does today, its historical significance can be found in its effect on criminal proceedings. ...
Background: The principle ne bis in idem is a traditional principle relevant to criminal proceedings in European states. While in the past, crime had a primarily national dimension, these days, it has an international dimension as well. The Europeanisation of law also occurred in criminal law, including criminal proceedings. Thus, an understanding of ne bis in idem as a modern guarantee involving the international dimension is needed. Methods: The basic sources used for the elaboration of the paper are scholarly sources (monographs, textbooks, studies, and scientific papers, etc.), legislative instruments (international agreements, etc.), and case-law (of the European Court of Human Rights and the Court of Justice of the European Union). The materials used here also include the available explanatory memorandums. The author uses traditional methods of legal scientific (jurisprudential) research – general scientific methods as well as special methods of legal science (jurisprudence). The general scientific methods used in the paper are predominantly logical methods, namely, the method of analysis, the method of synthesis, and the method of analogy, as well as the descriptive method. The descriptive method has been used to familiarise the reader with the current legal regulation of ne bis in idem. The method of analysis has been used as regards relevant provisions and case-law. The method of synthesis has also been used, as has the method of analogy. The special methods of legal science used here predominantly include methods belonging to a group of interpretative methods, namely, the teleological method, the systematic method, the historical method, and the comparative method. The teleological method has been used as regards the explanation of the purpose of legislative instruments. The systematic method has been used in the classification of the principle of ne bis in idem. The historical method has been used as regards the genesis and historical aspects of ne bis in idem. The comparative method has been used to examine the relationship between legislative instruments. Results and Conclusions: The principle of ne bis in idem is one of the oldest norms in western civilisation. Since the Europeanisation of law also occurred in criminal law, including criminal proceedings, the principle of ne bis in idem became a part of international legal documents. The Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocol No. 7, introduced a new right – the ‘right not to be tried or punished twice’. In addition, the Charter of Fundamental Rights of the European Union, which is the first bill of rights developed explicitly for the EU, also introduced the principle of ne bis in idem as the ‘right not to be tried or punished twice in criminal proceedings for the same criminal offence’. However, its understanding in the Charter has no additional significance. In principle, it is the same. Despite the fact the primary purpose of the Convention implementing the Schengen Agreement is to facilitate the free movement of persons between member states of the EU by removing internal border controls, several measures have been introduced which focus on police and judicial co-operation, including the principle of ne bis in idem, in the provision entitled ‘Application of the ne bis in idem principle’. This provision is considered the most developed expression of an internationally applicable ne bis in idem. Ne bis in idem also occurs in extradition proceedings and surrender proceedings. Its operation under the European Convention on Extradition prevents the double prosecution of the same person for the same offence in different jurisdictions. As regards the new procedural system introduced by the Framework Decision 2002/584/JHA on the European arrest warrant, based on the surrender proceedings as a special kind of criminal proceedings, there is no absolute obligation to execute the European arrest warrant. The Framework Decision, in its core text, includes grounds for non-execution of the arrest warrant in the executing state – and one of them is the principle of ne bis in idem
... En atención a lo establecido por el artículo 7(1) del ER, no basta con demostrar la consumación de los elementos objetivos y subjetivos de las conductas subyacentes que pueden configurar crímenes de lesa humanidad, sino que también debe probarse la existencia del elemento contextual que los dota de relevancia internacional (Cryer, Friman, Robinson, & Wilmshurst, 2014). Es decir que se hace necesario establecer la ejecución de un ataque sistemático o generalizado contra una población civil y con conocimiento de dicho ataque. ...
Este artículo explora la posibilidad de remitir la situación del Paro Nacional de 2021 en Colombia a la Fiscalía de la Corte Penal Internacional. Tras realizar un breve recuento de aquellos hechos y de verificar que estarían excluidos del examen preliminar vigente, el autor señala que existen motivos razonables para creer que podrían constituir crímenes de lesa humanidad y que los casos que potencialmente surgirían de estos serían admisibles. A continuación, el escrito sugiere que la intervención de la Corte Penal Internacional en Colombia podría enviar un mensaje de repudio a las conductas que atentan contra la democracia. Las conclusiones ofrecen un llamado a que estos lamentables acontecimientos no queden impunes.
... 23 Since the late 1960s, CAH's presence in customary international law was cemented through multiple treaties and instruments. 24 The final decade of the twentieth century witnessed the reaffirming of the customary character of CAH in the Statutes of the ICTY, ICTR and the ICC and the emergence of the modern definition of CAH. Definitions of CAH in the ICTY and ICTR Statutes are similar to each other, but certainly not identical. ...
The principle of legality, otherwise known as the rule against ex post facto or retroactive law, remains a recurring point of tension in the global struggle against impunity. The trials ongoing in Bangladesh are no exception. One of the major areas of contention surrounding the ICT Act relates to the way it defines “crimes against humanity” (CAH) in Section 3(2)(a). Critics have appraised the definition from two perspectives, one being that the Act’s definition of CAH does not reflect the state of customary international law that existed in 1971 or that it does not accommodate elemental advancements of the definition which are reflected in the Rome Statute of the ICC or similar legal instruments. In two parts, this chapter analyses these criticisms in greater detail and tests whether the definition of CAH is compatible with the principle of legality. To that end, the first part offers a brief
theoretical and historical appreciation of the principle of legality. The following part traces the evolution of CAH as an international crime and critiques the statutory definition of CAH in the ICT Act in light of the views raised by critics.
... The rule of "a single sequence of events" reads that where material element of a crime is constituted of different sequence of acts and the intention of the criminal is found to be present at any point of these events leading to the resulted crime, then the condition of coincidence of the material and mental elements has been met [ 18 ]. Under this rule, two independent situations have been discussed: firstly, mental element takes place before the material element where, coincidence is accepted according to the theory of "prior fault. ...
... 5 In addition, there are also numerous other legal instruments, either regional 3 Cohen (2012) 224-28. 4 van der Vyver (2010) 533. 5 Cryer, Friman, Robinson and Wilmshurst (2010) 339. These conventions are: Convention for the Suppression of Unlawful Seizure of Aircraft (adopted 16 December 1970, entered into force 14 October 1971) 860 UNTS 105; Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation (adopted 23 September 1971, entered into force 26 January 1973) 974 UNTS 177, together with Protocol for the Suppression of Unlawful Acts at Airports Acts against the Safety of Civil Aviation (adopted 24 February 1988, entered into force 6 August 1989) 6 which define terrorism. ...
This paper suggests that the crime of terrorism requires the establishment of an international organ to prosecute the perpetrators of the crime and there is a need to enable the prosecution of the crime of terrorism as a specific new type of international crime. In advancing this thesis, the paper is divided into three parts. The first part briefly defines the notion of terrorism, while the second discusses the international legal instruments and practices when it comes to prosecution of the crime of terrorism. It starts with the first failed attempts to define and prosecute the crime of terrorism. Next, it discusses the jurisdiction of different international courts and tribunals over the crime of terrorism. The third part presents the specific case of the Polish domestic legislation regulating the crime of terrorism in order to demonstrate that States which so far have not been affected in a major way by terrorism may have little experience in creating comprehensive legislation, yet they still may have to deal with perpetrators of the crime. This is why both a comprehensive legal instrument and an international organ with jurisdiction over the crime of terrorism are necessary.
Based on the study of doctrinal sources, contractual legal regulation and judicial practice materials, the paper defines legal models for the establishment of acts of aggression: the Nuremberg-Tokyo model (as a contractual one, only stating the fact of aggressive war and to a certain extent functional for the purpose of establishing individual criminal responsibility) and the universal UN model (or a political and legal model related to the establishment of an act of aggression as a violation of the territorial integrity or political independence of states and with the subsequent transfer of the case to the International Criminal Court for prosecution to bring the perpetrators to justice). There is a tendency to overestimate the «internationality» in defining acts of aggression by removing national jurisdictions from the possibility of qualifying acts of armed attack by stating the statutory authority of the UN Security Council in determining the committed act of aggression (Article 39 of the UN Charter). The «regional» and «bilateral» models of countering acts of aggression within the framework of fulfilling allied obligations are considered. An objective model of suppressing an armed attack and its consequences is proposed as a subjective imputation by the injured state (group of states) of committing an act of aggression to the aggressor state (group of states), which can be implemented in the legislation and law enforcement practice of Russia. The paper reflects the main points from the speech delivered by Professor Batyr on May 28, 2024 at a round table in the Federation Council of the Federal Assembly of the Russian Federation on the topic «The concept of aggression in international law and Russian doctrinal documents».
Este artículo se sirve del documental E-Team (2014) para reflexionar sobre la labor de los trabajadores y de las organizaciones de derechos humanos en la documentación de evidencia y elaboración de informes que establecen responsabilidades por violaciones de derechos humanos y del derecho internacional humanitario. Se argumenta que desempeñan un papel crucial en la recopilación de evidencia y en la búsqueda de la verdad, con el objetivo de ayudar a construir casos sólidos en contra de los responsables, así como de dar voz a las víctimas de tales atrocidades.
İkinci Dünya Savaşı yılları, uluslararası suçların geniş ölçekte işlendiği bir dönem olmuştur. Henüz savaş devam ederken, Müttefik Devletler, Mihver Devletleri adına hareket ederek suç işleyen kişileri cezalandırma iradelerini açıklamış, savaşın sona ermesiyle birlikte bu yöndeki ortak irade hayata geçirilmiştir. Savaşta işlenen bazı suçlar, Müttefik Devletlerin ulusal askeri ceza mahkemelerinde kovuşturulmuş olmakla birlikte, ‘büyük savaş suçlusu’ kabul edilen kişilerin yargılanması için, biri Tokyo diğeri Nürnberg’de olmak üzere iki ayrı uluslararası ceza mahkemesi kurulmuştur. Avrupa Mihver Devletleri adına hareket eden kişileri yargılamak üzere kurulan Nürnberg Uluslararası Askeri Ceza Mahkemesi’nin statüsünde (m.6/c), insanlığa karşı suçlar tarihte ilk defa tanımlanmıştır. Statü, bu yönüyle uluslararası ceza hukukunun gelişiminde önemli bir adım teşkil etmektedir. Soykırım suçu bakımından ise durum farklıdır. Mahkeme’nin madde bakımından yetkisini düzenleyen Statü m. 6’da soykırım suçuna yer verilmediği gibi, hükümde de bu suçtan bahsedilmemiştir. İddianameye bakıldığında, soykırımın bağımsız bir suçlama olarak sanıklara yüklenmediği, işgal edilen bölgelerdeki sivil halka karşı işlenen bir savaş suçu olarak değerlendirildiği görülmektedir. Bu makalede, Londra Konferansı hazırlık çalışmalarından başlayarak, hükmün tefhimine kadar devam eden Nürnberg sürecinde, inceleme konusu suçların maddi ceza hukuku bakımından nasıl ele alındığı, bu ‘yeni’ suçlarla uluslararası örf ve adette yer alan ‘klasik’ savaş suçları arasındaki ilişkinin nasıl yorumlandığı açıklanmaya çalışılmıştır.
Roma Statüsü’nün 28. maddesi, üstlerin astlarının işledikleri suçlardan kaynaklanan cezai sorumluluklarını düzenlemektedir. Düzenlemeye göre üst, hiyerarşik konumundan kaynaklanan yükümlülüklerini durumun gerektirdiği ölçüde yerine getirmediği için Divan’ın yargı çevresindeki suçların işlenmesini önleyememiş, icrası devam etmekte olan suçları bastıramamış, suç tamamlandıktan sonra sorumluları cezalandırmamış ya da cezalandırma yetkisinin olmadığı hallerde durumu soruşturulması ve kovuşturulması için yetkili makamlara bildirmemişse sorumlu olmaktadır. Düzenleme, Statü’de yer alan suçların ağırlığı ve geniş etki alanı dikkate alındığında üstleri yükümlülüklerini yerine getirme konusunda azami hassasiyet göstermeye sevk etmeyi ve bu suretle uluslararası alanda insan hakları ihlallerinin önüne geçmeyi hedeflemektedir. Bu çalışmada, birçok uluslarası belgede yer alan üstün sorumluluğu kurumu, Roma Statüsü’nün 28. maddesi bağlamında detaylı bir şekilde ele alınacaktır.
Between 1983 and 1986, the Zimbabwean government deployed the 5th Brigade of the Zimbabwe National Army (ZNA) to the provinces of Matabeleland and Midlands in an operation known as Gukurahundi. The stated aim of the Brigade’s operation was to combat dissidents—armed groups of men, comprising former ZIPRA combatants who had deserted the ZNA alleging that they were being discriminated against and attacked within the ZNA. Also, there were allegations that some were even killed. Instead, the 5th Brigade committed heinous atrocities against civilians in the two provinces. Within six weeks of arriving in Matabeleland North, 2, 000 civilians had been killed. Thousands more were raped, tortured, enforcedly disappeared and their homesteads and property burnt and destroyed. In four years, an estimated 20, 000 people had been killed in an operation covering Matabeleland and Midlands. Despite being presented with documented evidence of atrocities, including through its own Chihambakwe Commission of Enquiry on the disturbances in Matabeleland, the government of Zimbabwe denied that its army had committed atrocities and refused to publish the Commission’s findings. A political settlement between ZANU and ZAPU in 1987 ended the atrocities. The perpetrators of atrocities were pardoned, and there was no accountability or justice for victims. This article examines the Gukurahundi atrocities and evaluates whether they meet the requirements of crimes against humanity (CAH) under international law. The article has three objectives. First, to provide an overview of crimes against humanity, including their origins and historical evolution and development. Second, to examine the contextual, physical and mental elements of CAH. Finally, to evaluate whether the Gukurahundi atrocities meet the legal requirements for the enumerated acts of crimes against humanity. The prohibition of CAH carries an international obligation to investigate, prosecute and punish the crimes. If the 5th Brigade is found to have committed CAH, the perpetrators are liable to be investigated, prosecuted and punished under international law.
Bu çalışmada Birleşmiş Milletler Deniz Hukuku Sözleşmesi’nde düzenlenen iç sular, karasuları ve bitişik bölgede devletlerin uluslararası sorumlulukları irdelenmiştir. Çalışmanın amacı Birleşmiş Milletler Deniz Hukuku Sözleşmesi, Uluslararası Adalet Divanı ve Uluslararası Deniz Hukuku Mahkemesi kararları bağlamında devletlerin uluslararası tazminat sorumluluğu ile uluslararası bireysel ceza sorumluluğunu ortaya koyabilmek ve uluslararası sorumluluğa yönelik Sözleşme’de tespit edilebilen eksikliklere yönelik önerilerde bulunabilmektir. Bu bağlamda çalışmanın giriş bölümünde uluslararası sorumluluğun nedenlerine değinilmiştir. Bu nedenlerin uluslararası alanda giderilebilmesi için birçok uluslararası sözleşme imzalandığı ifade edilmiştir. Bu sözleşmelerden bir tanesi de Birleşmiş Milletler Deniz Hukuku Sözleşmesi’dir. Çalışmanın gelişme bölümünde öncelikle uluslararası sorumluluk kavramı açıklanmıştır. Uluslararası sorumluluk kavramı uluslararası tazminat sorumluluğu ve uluslararası bireysel ceza sorumluluğu olarak ayrıştırılmıştır. Daha sonra Birleşmiş Milletler Deniz Hukuku Sözleşmesi bağlamında devletlerin uluslararası tazminat sorumluluğu ve uluslararası bireysel ceza sorumluluğu irdelenmiştir. Bu bağlamda yabancı ticari gemilerin, bir devlete ait ticari gemilerin, kamu hizmetinde bulunan devlet gemilerinin ve savaş gemilerinin tazminat sorumluluğu ile bu gemilerle veya bu gemilerde suç oluşturan fiilleri işleyen kişilerin uluslararası bireysel ceza sorumluluğu ele alınmıştır. Çalışmanın sonuç bölümünde ise Birleşmiş Milletler Deniz Hukuku Sözleşmesi’ne göre devletlerin uluslararası tazminat sorumluluğunun ve uluslararası bireysel ceza sorumluluğunun neler olduğu ortaya koyulmuş ve bu bağlamda Sözleşme’de tespit edilebilen eksikliklere yönelik önerilerde bulunulmuştur.
The establishment of the International Criminal Court (ICC) in 1998 was welcomed by many as a progressive step towards ending the impunity of those who commit international crimes. However, there appears to be serious legitimacy and existential threats to the ICC. Those at the forefront of the attack on the ICC, such as the United States of America (United States) and the African Union, have fundamentally different geo-political interests and pursue largely different ideological positions. The reasons advanced by these disparate enemies of the ICC are different but are largely informed by the different fears they have for the Court. This article aims to expose the various interests behind the efforts to delegitimise and destroy the ICC. The article also seeks to demonstrate the different strategies used by the ICC’s nemeses in their attacks on the Court. To achieve this, the article provides an overview of the relationship of various United States administrations with the ICC. I trace the United States’ initial support for the ICC and, thereafter, try to set out why it suddenly morphed into one of the Court’s foremost nemeses. I also outline the various strategies that the United States has employed in its attack on the ICC. I then discuss the AU’s troubled relationship with the ICC, starting with the AU’s overwhelming endorsement of the ICC project, to the current situation where there is a general view within the body that the Court is anti-African. I attempt to unpack the reasons for this troubled relationship between the AU and ICC. I also outline the strategies the AU (and some of its Member States) employs in its attack on the ICC. I conclude by positing that it is crucial for those who may want to save the ICC from collapse to understand the different fears of its nemeses and the different strategies they have been employing to destroy it. It is only through such an understanding that formidable counter strategies may be employed to mitigate the legitimacy and existential threats to the ICC.
The Criminal law is the strongest arm of all the normative systems of society which saves the society from evils, punishes the criminals, curbs, and prevents crimes in the society, frees it of crime or makes continuous efforts to keep it at bay or at least makes offences unattractive, unpleasant, hateful, and unaccepted activity in our society. The criminal procedure is criminal justice in action. The failure of the procedural law means failure of the social goals set by society. With the help of qualitative research methodology, this article discusses the importance of criminal procedural law in the administration of the Criminal Justice System (CJS). It points out the two types of criminal procedural laws in Pakistan; constitutional and ordinary. It also analyses the current situation of the CJS of Pakistan. It also highlights the major problems in the criminal procedure of Pakistan and pointed out the need of revamping the criminal procedure. It also pointed out the need to transition from existing criminal procedural laws of Pakistan to Islamic Criminal Procedure.
The Supreme National Tribunal, which operated in Poland between 1946 and 1948, tried 49 Hitlerite criminals who had committed crimes against Poland and Poles during World War II. It was tasked not only with bringing individual perpetrators to justice but also with publicizing these matters to the world. It was in effect the Polish equivalent of the Nuremberg Tribunal. However, the suppression of the Warsaw Uprising, including the Wola Massacre (Wola Slaughter), was not covered by these trials, even though initially The Tribunal planned to try Germans responsible for the crimes committed during the Uprising. In practice. these crimes were carefully omitted from the seven trials conducted by the Tribunal. Even when the high officials of the occupation administration in Warsaw were tried, the period of the Warsaw Uprising was not, as a rule, the subject were subsequently tried by the Polish common courts. The fact is that the then Polish authorities were not keen to publicize the martyrdom of those who had taken part in the Warsaw Uprising because this would have inevitably led to questions as to why USSR military forces did not come to the aid of the Warsaw residents being murdered by the Germans and also to what was happening to the Polish Home Army soldiers who had fought vigorously at that time and who, after the war, were subject to persecution by the new authorities installed in Poland by the Soviet Union. The Tribunal, whose task was to judge the perpetrators of the most significant German crimes, ceased its activities without even considering what was probably the largest single massacre of civilians in Europe during World War II, and the largest single act of extermination in the history of the Polish Nation: the Wola Massacre.
The ICC and the State of Victoria – A Case to Answer? (12 November 2022) DOI: 10.13140/RG.2.2.31540.32648 concluded with the observation that: 'We will have to ask the ICC-Prosecutor, pursuant to the Rome Statute, art 15. The prosecutor may ask the Pre-Trial Chamber under art 19(3)'.
This Petition now formally asks the OTP-ICC to consider the matter.
In the Decision on the Application by the Government of Kenya Challenging the Admissibility of the Case Pursuant to Article 19(2)(b) of the [Rome] Statute (ICC-01/09-01/11), the Pre Trial Chamber II, of the ICC found that the ICC could (and should) prosecute crimes where a State demonstrated an unwillingness or inability to prosecute.
Perhaps in The Hague Weltanschauung those in deepest darkest Africa are presumed to be criminals, whilst those in nice Australia are presumed to be acting in good faith? Would this subliminal racial bias prevent the ICC from treating Victoria Police and or State Victoria as an ‘organisation’ and ‘state actor’ respectively for the purposes of the Rome Statute?
We will have to ask the ICC-Prosecutor, pursuant to the Rome Statute, art 15. The prosecutor may ask the Pre-Trial Chamber under art 19(3).
Right to fair trial is the basic human right and is the bedrock of any criminal justice system for upholding the rule of law. This basic human right is mostly misunderstood to be only meant for suspect or defendant only. The victims whose rights have been violated by the offender, stand helpless and neglected by the criminal justice system. Understanding the need of victims, various legal instruments are being drafted to protect their right to fair trial. Despite all attempts, the victim’s right to fair trial is not being protected completely and it is still violated across the globe. Where the victim’s right is acknowledged, the right to fair trial of the victim is only understood in terms of the restorative justice or compensatory justice. But the victim’s right to fair trial is much more than that, it includes the right to access to justice, participation, and redressal from the criminal justice system.
Apartheid is a crime against humanity. Treaty law and customary international law compel states to investigate and prosecute perpetrators of apartheid as a crime against humanity. South Africa, a state with a history of apartheid, and as a state party to the Rome Statute, has international and constitutional obligations to prosecute perpetrators of apartheid as a crime against humanity. Yet, no perpetrator has been prosecuted and convicted of this international crime. The chapter explores reasons for failure to prosecute perpetrators of apartheid for crimes against humanity in South Africa. It argues that for any accountability for international crimes under the Rome Statute to be achieved in South Africa, there first needs to be a willingness to prosecute perpetrators of apartheid for crimes against humanity.KeywordsAccountabilityInternational crimesApartheidCrimes against humanityTRCApartheid conventionRome StatutePolitical interferenceNational prosecuting authority
Transnational and international criminal law are bodies of law regulating cooperation between States, as well as between States and various institutions of international criminal justice, in the prevention, prosecution and punishment of individuals for transnational and international crimes. Ever since the Nuremberg and Tokyo trials after the Second World War, both transnational and international criminal law developed into full-scale branches of law dealing with the substantive and procedural aspects of combating such crimes as genocide, crimes against humanity, war crimes and other international and transnational crimes. The penalisation of the crime of aggression has been relatively less successful. In 2002, a permanent International Criminal Court (ICC) was established but it does not yet enjoy universal support, and alternative regional formats such as the Malabo Protocol are contemplated. With due regard to the principle of complementarity, the indirect enforcement of international criminal law and transitional justice mechanisms will remain continually significant.KeywordsCrime of aggressioncrime under international lawcrimes against humanitygenocideInternational Criminal Court (ICC)international criminal lawinternational criminal procedureMalabo ProtocolNuremberg trialTokyo trialtransitional justicetransnational criminal lawwar crimes
The principle of legality, also known as the rule against retroactive law, remains a recurring point of tension in the global struggle against impunity. The ongoing trials in Bangladesh before the ICTs are no exception. One of the major normative areas of contention surrounding the icta relates to the way it defines genocide in Section 3(2)(c). Genocide, as defined in this Section, embodies the content and spirit of the classical and widely accepted definition enshrined in Article ii of the Genocide Convention (GC), with a major point of departure, i.e. the addition of ‘political groups’ as a protected group. Critics have objected to this addition as a violation of the principle of legality. This chapter tests whether the definition of genocide is compatible with the principle of legality.
Faced with the absence of a generally accepted definition or list of ‘international crimes’, this chapter appraises the dominant approaches to define the term and shows how these varying approaches are constantly contributing to the problem of mapping the boundary of international criminal law (ICL). Although the concept of crime in international law has evolved over time, this chapter demonstrates that ICL still suffers from undertheorization on a number of important issues. Notwithstanding the phenomenal growth of ICL in the post-Cold War era, a coherent theory of why certain acts should qualify as international crime is yet to be formulated. The chapter argues that the recent trend of taking ICC’s substantive jurisdiction either for defining or classifying international crimes is not theoretically defensible. Finally, the chapter warns against using these theoretical shortcomings to delegitimize ICL.
International law not only prohibits and, in some cases, criminalizes certain uses of armed force but also authorizes, and imposes limits on, the use of such force by states and state agents. While these laws of political violence are often treated as separate systems or branches of public international law by legal scholars and practitioners, they are, perhaps from a politico-analytical perspective, better understood as artifacts produced by relatively distinct, but at times interconnecting, social fields in the sense meant by Pierre Bourdieu. These fields tend to emerge and evolve through a transversal dynamic that occurs between horizontal interstate conduct and vertical state reach, a dynamic spurred on through the drafting and negotiation of certain instruments of international law, the implementation and administration of those instruments by state parties, and the monitoring and enforcement of state compliance relating to any duties and responsibilities flowing from those instruments. In this chapter, I offer a brief overview of four fields of law that aim to regulate unruly political violence: namely, the general prohibition on the aggressive use of armed force in international affairs; international humanitarian law; international criminal law and transnational criminal law. I warn of the dangers associated with the misuse of various instruments of international law, arguing that the trouble with international law is that the key struggles over them are often determined by configurations of power that are external to those fields.
El presente artículo examina el caso de Hissène Habré, el ex presiden- te de Chad condenado por las Cámaras Africanas Extraordinarias por la comisión de crímenes internacionales durante su gobierno. Su juzga- miento ante un tribunal constituido en virtud de un acuerdo entre la Unión Africana y Senegal marcó un hito en la justicia penal internacional. Para comprender este caso emblemático, se abordan, en primer lugar, las principales características del régimen de Habré, así como las persistentes iniciativas de las víctimas y de la sociedad civil por alcanzar justicia. En segundo lugar, se analiza la naturaleza jurídica de las CAE, su competen- cia, y sus fallos de primera y segunda instancia. Finalmente, se presentan las lecciones y los desafíos del caso Habré, y se exploran las posibilidades de replicar el modelo de las CAE en otros escenarios. A lo largo del texto, se pone énfasis en el rol trascendental de las víctimas en este caso y en la necesidad de asegurar sus derechos a la verdad, justicia y reparación.
This study is based on the assumption that Brazilian counter-trafficking in
persons law enforcement has given rise to a complex, deficient, confusing
anti-trafficking system that presents legal obstacles. Derived from this lack
of harmonization in the Brazilian context, there were different ways of interpreting
what trafficking was, which has also generated a confusing framework
regarding the interpretation of the concept itself. Hence, the new
anti-trafficking law in Brazil (13.344/2016) was approved in order to cover
this normative vacuum and to act as a useful and proactive instrument in
tackling human trafficking in Brazil that would comply with the due diligence.
The purpose of the article is to analyse whether the irrelevance of
consent to crimes of trafficking in persons in the new anti-trafficking law
in Brazil complies with the requirements of international law on the matter.
For these purposes, we apply a descriptive qualitative methodology, consisting
of the review and analysis of the legal regulations, jurisprudence,
doctrine and legal bibliography. The procedure to access the information
from secondary sources has been carried out through the following search
engines and bibliographic databases: Web of Science, Scopus and Google
Scholar. In turn, the various Brazilian and United Nations repositories, databases
and specialized studies on the subject were used. The conclusions of
this study contribute to the area in that they show that, to comply with the
due diligence, it is necessary to meet the requirement of the international
standard on the irrelevance of consent. Thus, favouring a multidirectional
action that safeguards the human rights of victims-survivors.
Key Words: Trafficking in persons. Brazilian law enforcement. Dual Diligence. Human Rights. Irrelevance of consent.
Based on the UN General Assembly Conference, on June 8th, 2018, Indonesia was re-elected as a non-permanent member of the United Nations Security Council (UNSC) for a two-year term (From January 1st, 2019 to December 30th, 2020). As a member of UNSC which has the duty of maintaining international peace and security, Indonesia must have roles in resolving international conflicts, especially the prolonged conflict between Palestine and Israel. Therefore, the aims of the research are : (1) to describe and explain how is role of UNSC in maintaining international peace and security. (2) to describe and explain how is the strategic role of Indonesia as a non-permanent member of the UNSC in maintaining international peace and security (case study: Palestinian-Israeli conflict). This research used normative legal research. The results of the research showed that UNSC have a duty and authority of maintaining international peace and security. Indonesia has four priority points that Indonesia wants to achieve in the UNSC, namely: Indonesia`s priorities would be to continue the efforts to realise world peace. Indonesia would strengthen the ecosystem of global peace and stability by encouraging dialogue and peaceful settlement of conflicts; Indonesia`s second priority in the UNSC would be to build synergy between regional organisations and the United Nations to maintain peace and stability; Indonesia`s third priority would be to increase cooperation in the fight against terrorism, extremism and radicalism; And, its fourth priority would be to synergise efforts to create peace with that to achieve the sustainable development goals (SDGs) in United Nations development agenda 2030. Indonesia would also try to resolve the Palestinian-Israeli conflict. Indonesia could play a role in giving voice and encouraging countries, especially the permanent members of the UNSC to carry out the Palestinian-Israeli peace process. The peace process must be able to accommodate the views of the parties in conflict and prioritize justice, especially for the Palestinian. Indonesia could propose the establishment of an international investigation team or observation mission and peacekeeping forces.
ABSTRAK
Kejahatan agresi merupakan salah satu dari empat kejahatan internasional yang tercantum dalam Statuta Roma 1998. Meskipun kejahatan agresi termasuk dalam yurisdiksi Pengadilan Pidana Internasional / International Criminal Court (ICC), namun, hingga diberlakukannya Statuta Roma 1998 definisi tegas mengenai kejahatan agresi tidak ditemukan di dalamnya. Hal ini menyebabkan International Criminal Court (ICC) tidak memiliki kewenangan yang jelas dalam menangani kejahatan agresi. Untuk itu harus dijelaskan pengaturan penanganan kejahatan agresi oleh International Criminal Court (ICC). Dengan adanya definisi yang jelas dan lugas mengenai tindakan agresi maka akan diketahui pula bagaimana kompetensi International Criminal Court (ICC) dalam menangani kejahatan agresi tersebut.
Kata kunci : Kejahatan agresi, kejahatan internasional, Pengadilan Pidana Internasional, yurisdiksi ICC
ABSTRACT
The crime of aggression is one of four international crimes listed in the 1998 Rome Statute. Although the crime of aggression belongs to the jurisdiction of the International Criminal Court (ICC), however, until the enactment of the Rome Statute of 1998 a strict definition of the crime of aggression was not found in it.. This causes the International Criminal Court (ICC) to have no clear authority in dealing with crimes of aggression. Therefore it must be explained the arrangement of handling crimes of aggression by the International Criminal Court (ICC). With a clear and straightforward definition of acts of aggression, it will also be known how the competence of the International Criminal Court (ICC) in dealing with the crime of aggression.
Keywords : The crime of agression, international crime, International Criminal Court. jurisdiction of the ICC
A aplicação da vedação do bis in idem (“VBI”) foi dificultada quando o direito penal deixou de ser o único sistema punitivo relevante, aumentando a possibilidade de dupla punição pelos mesmos fatos. Outro desafio decorre do enfraquecimento da VBI pela necessidade de proteção reforçada de bens jurídicos sensíveis. Esta dificuldade é ampliada no Brasil com o surgimento de novos sistemas de apuração de responsabilidade que dificilmente podem ser denominados de administrativos (como é o caso da lei de improbidade). Ademais, a Constituição Brasileira não tem texto expresso reconhecendo a VBI, mas tem dispositivos relativos à tutela de bens sensíveis que o afastam. Assim, partindo dos tratados que vinculam o Brasil, analisando a jurisprudência brasileira e internacional sobre a VBI e discutindo a sobreposição de sistemas punitivos destinados à proteção de bens sensíveis, este trabalho tenta chegar a uma definição sobre o conteúdo da VBI no Brasil.
The establishment of the International Criminal Court (ICC) in 1998 constitutes a landmark in the development of International Criminal Law (ICL), which gained its first momentum after World War II through the foundation of International Military Tribunals in Nuremberg and Tokyo. ICL is, however, not confined to these most prominent courts or their statutes providing for definitions of international crimes under their respective jurisdiction; rather, ad hoc international, or internationalized and hybrid special tribunals and criminal chambers also contribute to the development and shape of ICL and reflect its diverse legal and institutional basis. Perceived as another tribunal of “international character,” on August 18, 2020, the Special Tribunal for Lebanon (STL) pronounced its judgment on the merits in the Ayyash case. The long-awaited verdict raises the question of the Tribunal's contribution to the further evolution of ICL.
Under international law, weapon capabilities and their use are regulated by legal requirements set by International Humanitarian Law (IHL). Currently, there are strong military incentives to equip capabilities with increasingly advanced artificial intelligence (AI), which include opaque (less transparent) models. As opaque models sacrifice transparency for performance, it is necessary to examine whether their use remains in conformity with IHL obligations. First, we demonstrate that the incentives for automation drive AI toward complex task areas and dynamic and unstructured environments, which in turn necessitates resort to more opaque solutions. We subsequently discuss the ramifications of opaque models for foreseeability and explainability. Then, we analyse their impact on IHL requirements from a development, pre-deployment and post-deployment perspective. We find that while IHL does not regulate opaque AI directly, the lack of foreseeability and explainability frustrates the fulfilment of key IHL requirements to the extent that the use of fully opaque AI could violate international law. States are urged to implement interpretability during development and seriously consider the challenging complication of determining the appropriate balance between transparency and performance in their capabilities.
This work analyses how the Statute of the International Criminal Court (ICC Statute) and its Rules of Procedure and Evidence (RPE) deal with the violence suffered by street dwellers, homeless people, and those others in a situation of poverty, as a result of rejection, aversion or contempt by their aggressors (aporophobia). For this purpose, the notions of poverty, homelessness, street dweller and aporophobia are first analysed. Subsequently, the treatment of this type of discriminatory violence in comparative criminal law (specially, in the USA and Spain) is briefly studied. Finally, the question of whether this type of discriminatory aggressions may amount to any of the crimes (in particular, genocide and crimes against humanity), or any of the aggravating circumstances, provided for in the ICC Statute and the RPE is addressed.
The Rome Statute of the International Criminal Court (ICC) is a diplomatic treaty that established the ICC. The Rome Statute of the ICC was originally adopted at a conference held in Rome on July 17, 1998, and was formally implemented on July 1, 2002. The ICC is an autonomous international court with 123 current state members. It was the first permanent international court established with the main goal of addressing the impunity of offender(s) who commit the most severe crimes that victimize the international community as a whole. There are four core crimes established within the Rome Statute and the ICC: (1) war crimes; (2) crimes against humanity; (3) genocide; and (4) the crimes of aggression. According to the Rome Statute and the ICC, there is no statute of limitations regarding the international prosecution of the above listed crimes.
The tradition of international criminal tribunals which started with the Nuremberg and Tokyo tribunals was returned with the International Criminal Tribunal for the former Yugoslavia. As a result of the bloody wars in the territory of the former Yugoslavia in the 1990s, the Security Council of the United Nations decided to establish the ICTY as an ad hoc tribunal, that was approved by the resolutions 808 and 827. The main purpose of the paper is to highlight the features of the ICTY during its mandate from 1993 to 2017. For the realization of this research are used qualitative methods, based on the bibliography that is related with international criminal law, with special emphasis with the activities of international criminal tribunals. Furthermore, some data are also collected from the credible internet sources, which have valuable information about the procedures of the ICTY and for the International Residual Mechanism for Criminal Tribunals. The results of the study demonstrate that during its mandate, the ICTY was accompanied with a lot of successes which distinguish it from the other international criminal tribunals. At the same time, the ICTY has also a lot of failures, which have come as a result of various political influences within it. The conclusions of this paper aim to increase knowledge about the activity of the ICTY, by offering important information for its establishment and organs, and for its main successes and failures.
El presente artículo de reflexión plantea algunas consideraciones sobre la imputación de responsabilidad penal a empresarios con base en crímenes cometidos por grupos armados. A partir de allí, se pretende establecer cuándo la Jurisdicción Especial para la Paz, JEP, puede juzgar líderes empresariales, dado que en el Acuerdo de Paz firmado por el Gobierno colombiano y el grupo guerrillero FARC-EP se previó como criterio para definir si la JEP es competente frente a civiles, de una manera algo vaga, la “participación determinante” de estos en la perpetración de crímenes graves. Sobre la base de algunas decisiones judiciales que han sido relevantes en el derecho penal internacional, el artículo sostiene que en este tipo de casos la complicidad ofrece un marco de referencia apropiado para la atribución de responsabilidad. Además, propone diferenciar entre la contribución de la persona jurídica al grupo u organización ilegal y la contribución del empresario dentro de la persona jurídica, con el fin de separar la discusión sobre la competencia de la pregunta por el grado de responsabilidad penal individual.
This chapter methodically applies the requirements of the defence of duress to the particular situation of children aged 15–18 years who have committed crimes under international law. This is done by applying all the requirements of the defence of duress in Article 31(1)(d) of the International Criminal Court (ICC) Statute to the specific situation of child soldiers. Due to a lack of ICC jurisprudence on the defence of duress, recourse must be had to previous national and international jurisprudence to elucidate the conditions spelled out in the provisions of the ICC Statute. This chapter further seeks to address the differences between adult and child perpetrators in light of the application of the defence of duress to child soldiers. Importantly, this chapter fills a critical gap in the vast scholarship on child soldiers as it is one of the first scholarly writings to offer a comprehensive application of the requirements of duress to child soldiers.
The application of duress as a justification defence by national and international criminal tribunals has resulted largely in a number of accused failing to invoke successfully the defence. This chapter therefore examines the application of duress as an excuse as opposed to a justification defence. By revisiting and applying duress as an excuse rather than a justification, an interpretation of the defence of duress in a way that more accurately reflects the reality faced by child soldiers is explored. This would enable child soldiers as well as adult perpetrators to invoke it more or less successfully in armed conflict. Nonetheless, many child soldiers would still find it difficult to raise duress as a complete defence due to the application of the strict criteria of duress under international criminal law. Therefore, even if interpreted in a different light, duress is not the ultimate defence as so often claimed by legal scholars.
In addition to the requirements that must be fulfilled to successfully raise the defence of duress under Article 31(1)(d) of the ICC Statute, a number of limitations and exclusions are integrated into the defence of duress. This chapter explores the limitations placed on the defence of duress in the light of child soldiers. It looks specifically at the cases of a special duty to assume danger, and the fact that to be able to avail him/herself of the defence of duress, a child soldier must demonstrate that he/she is free of fault, that is, that he/she has not placed him/herself in a duress situation. Also, under customary international law, it is required that the situation leading to duress must not have been voluntarily brought about by the person coerced. The application of the limitations and exclusions as applicable to child soldiers in this chapter presents a novelty in legal scholarship.
This chapter begins with an examination of the concept of defences in international criminal law before retracing the development and the application of the defence of duress in national and international law. It also sets out the theoretical differences between duress as a justification defence and as an excuse defence. A theoretical and jurisprudential analysis of the defence illustrates that because duress has so far been viewed as a justification under international criminal law, it is unlikely to be successfully invoked by children or adults. However, it appears that the International Criminal Court (ICC) Statute may allow for a wider use of the defence of duress. This chapter also explains the relevance of the ICC Statute in determining the requirements of duress under international law despite the fact that the ICC has no jurisdiction to prosecute children.
After summarising the key findings of the study, this chapter brings the conversation back to two points. Firstly, it reiterates the legal and ethical importance that alleged perpetrators of international crimes be able to invoke defences and have a fair chance for such a defence to be successful. Secondly, it stresses that the dual status of children as victims and as perpetrators must be better understood when applying defences, and especially duress, under international criminal law. More fundamentally, this chapter argues that an approach that takes better account of the complex situation in which some alleged perpetrators are placed must be applied to any adult in a similar position. The findings of the study go beyond the narrow set of child soldiers and have wider significance.
ResearchGate has not been able to resolve any references for this publication.