An Introduction to International Criminal Law and Procedure
Abstract
Cambridge Core - UN and International Organisations - An Introduction to International Criminal Law and Procedure - by Robert Cryer
... 9 Segundo Hunter (2014), cada Estado, no exercício de sua soberania, tem a responsabilidade primordial de investigar e processar graves violações de direitos humanos. Essa atividade de processamento interno, além de ser o principal veículo para o constrangimento de crimes ditos internacionais, é também a opção preferível para tanto, em termos políticos, sociológicos, práticos ou de legitimidade (Cryer et al., 2007). A persecução penal dos crimes de maior gravidade por cortes nacionais, ademais, mostra-se como um avanço para a consolidação do próprio Direito Internacional Penal, particularmente quando se considera, de um lado, a análise das decisões nacionais por cortes internacionais e, de outro, a aplicação do Direito Internacional pelas cortes nacionais quando do julgamento desses crimes (Cassese, 2003). ...
... E além: indica a essencialidade de se debater em que medida os mecanismos hoje existentes, internamente a cada país, são suficientes e apropriados para enfrentar esses desafios, numa releitura de soberania que, no entanto, não retira dos Estados nacionais o dever primordial de processar e punir os crimes de maior gravidade 9 .Jurisdição adequada: o papel das cortes nacionais e internacionaisDe maneira geral, o dever de proteger e assegurar direitos previstos em convenções internacionais, principalmente de direitos humanos, implica inevitavelmente a obrigação que os Estados têm de processar e punir graves violações desses direitos. Em alguns casos, referido dever decorrer, ainda, do direito que cada indivíduo tem de ver ofertado para si uma atuação dos órgãos estatais competentes no sentido de aplicar um remédio efetivo contra condutas que configurem crimes de gravidade internacional(Cryer et al., 2007).Assim, fundamentalmente com o propósito de assegurar a persecução penal de graves violações de direitos humanos, é essencial que cada Estado, internamente, possua uma estrutura judiciária apta a realizar o processamento penal e a respectiva punição dos acusados pelo cometimento de graves violações de direito humanos. Nessa esteira, o Estado deve se valer de todos os recursos e meios para levar a juízo, investigar e condenar os responsáveis, de modo a assegurar o respeito aos direitos e garantias fundamentais dos acusados, estando sempre amparado em princípios que primem pela imparcialidade do juiz, pela legalidade, pelo pleno respeito ao contraditório e à ampla defesa, bem como em todos os demais princípios atinentes à dignidade das partes envolvidas.Em cenários de transição política, é comum que a estrutura judiciária e mesmo legislativa interna de determinado país sofra com instabilidades e falhas que, muitas vezes, impedem o alcance dos objetivos acima elencados. ...
Os julgamentos de Nuremberg no pós-Segunda Guerra Mundial estabeleceram um padrão de justiça de transição fundado no protagonismo da justiça criminal como mecanismo para (re)estabelecimento de um Estado de Direito, passível de ser aplicado a contextos não necessariamente idênticos ao dos países europeus do século XX. Por essa razão, as chamadas “categorias de justiça de Nuremberg”, sistematizadas por Ruti Teitel, podem ser usadas para entender a transição política vivenciada no Brasil, particularmente no que se refere à tentativa de reforma de instituições públicas. Assim, aplicando os princípios estabelecidos em Nuremberg à Reforma do Poder Judiciário de 2004, o presente artigo pretende demonstrar como esse precedente paradigmático impactou a transformação das instituições de justiça brasileira no que se refere à proteção e promoção dos direitos humanos. A pesquisa partirá de uma metodologia de abordagem, em geral, indutiva, e combinará os métodos procedimentais comparativo e tipológico na construção de suas conclusões.
... In both situations, the resolutions were adopted in response to serious violations of IHL and human rights, allowing the ICC to act on crimes committed in these contexts. According to Cryer et al. (2019), these referrals highlight the importance of the Security Council as a bridge between the collective responsibilities of the UN and international justice mechanisms. However, they also illustrate the challenges inherent in its political functioning. ...
El conflicto entre Rusia y Ucrania, derivado de las tensiones postsoviéticas, supone un grave desafío para el Derecho Internacional Humanitario (DIH) y la estabilidad global. La invasión a gran escala de 2022 intensificó el conflicto, revelando las limitaciones del DIH frente a la guerra híbrida y las respuestas internacionales inadecuadas. Esta guerra ha transformado la seguridad de Europa del Este y la geopolítica global, impactando la economía global. La Conferencia de Seguridad de Múnich de 2025 simboliza una coyuntura crucial: el potencial de un nuevo orden multipolar que fomente la paz frente a un conflicto prolongado que redefina el poder global. Este artículo examina el papel de la aplicación del DIH, las negociaciones diplomáticas y los actores emergentes en la búsqueda de una solución. Explora si estos factores conducirán a una paz sostenible o a un conflicto estancado que transformará el mapa del poder global durante décadas.
... Since its establishment, the majority of the ICC's investigations and prosecutions have involved African states, leading to accusations of disproportionate targeting and neo-colonialism (Mills, 2022). Critics argue that this focus reflects broader geopolitical dynamics, as powerful states outside Africa, such as the United States, China, and Russia, have not ratified the Rome Statute and are therefore largely immune from the ICC's jurisdiction (Cryer, 2019). This selectivity undermines the ICC's legitimacy and raises questions about its ability to deliver justice impartially. ...
The International Court of Justice (ICJ) and the International Criminal Court (ICC) are two pivotal institutions in the global legal framework, tasked with upholding justice and accountability on an international standard. While the ICJ primarily adjudicates disputes between states and the ICC focuses on prosecuting individuals for grave international crimes such as genocide, war crimes and crimes against humanity. This research article examines the roles of these courts in promoting global justice, highlighting their legal frameworks, operational challenges and contributions to the international legal order. The study identifies key problems hindering the effectiveness of both courts, including issues of jurisdiction, enforcement mechanisms, political interference and limited state cooperation. These challenges often undermine their ability to deliver justice consistently and impartially. The primary objective of this research is to critically analyze the legal frameworks governing the ICJ and ICC, assess their successes and limitations, and propose actionable recommendations for enhancing their efficacy. The research employs a comparative legal methodology, combining qualitative analysis of case law, treaties, and statutes with an examination of scholarly literature and institutional reports. By comparing the mandates, structures, and outcomes of the ICJ and ICC, the study provides a comprehensive understanding of their complementary yet distinct roles in the international justice system. The findings reveal that while both courts have made significant contributions to global justice, their impact is often constrained by systemic and political challenges. The ICJ’s state-centric approach limits its ability to address individual accountability, while the ICC faces criticism over perceived selectivity and enforcement gaps. Based on these findings, the study recommends strengthening state cooperation, enhancing enforcement mechanisms, and fostering greater institutional independence to address existing shortcomings. It also suggests exploring synergies between the ICJ and ICC to create a more cohesive international justice framework. Ultimately, this research underscores the importance of reforming and reinforcing these institutions to ensure they remain effective guardians of global justice in an increasingly complex international landscape
... Parthiana, I Wayan. (2006). Hukum Pidana Internasional. Bandung: Yrama Widya.13 Cryer, Robert. (2010). An Introduction To International Criminal Law And Procedure. Cambridge: Cambridge University Press.14 Oppenheim. (1992). International Law Volume 1: Peace Edited by Sir Robert Jennings and Sir Arthur Watts. Harlow: Longman. ...
Plane hijacking is a relatively new form of crime; the motives behind the hijacking varied, ranging from economic to political. The international community considers that acts of hijack can threaten international peace and security. This article aims to discuss the efforts of the international community in the fight against this aircraft hijacking crime. The results showed that the international community's efforts were to make various conventions to protect international aviation activities. In the convention, the international community made various efforts to prevent and eradicate aircraft hijacks, such as allowing each country to expand its jurisdiction.
... This entails, in general terms, a legal obligation to remedy (in material or non-material forms) the consequences of a violation that falls within the purview of international public law. Overall, the aforementioned issues are primarily associated with the fact that international criminal law is a complex legal phenomenon, encompassing a wide spectrum of relations pertaining to the prevention of international crimes and crimes that have an international component [34]. ...
In light of new threats in the field of human rights stemming from global geopolitical shifts, criminal law is facing a myriad of new challenges that require adequate responses. Given this context, it is crucial to develop and refine criminal legal measures (CLMs) in order to safeguard societal interests and maintain stability in social relations. This paper undertakes an analysis of contemporary problems in the area of legal regulation and CLMs, as well as assesses the effectiveness of CLMs for individuals engaged in criminal misconduct. The research provides grounds for arguing that the absence of a clear definition of CLMs in Ukrainian legal science renders the term potentially problematic. Moreover, there are currently no taxonomic markers or criteria for classifying CLMs, nor methods for evaluating the effectiveness of specific measures. Within the framework of the announced reforms in Ukraine’s criminal law, it becomes imperative not only to revisit the concept of CLMs but also to develop robust methodologies for assessing their effectiveness. This measure appears necessary both in light of the need to legally formalize CLMs and to systematize them in the future.
... Domestic systems may have statutory limitations, such as time limits for prosecution, which can lead to impunity for serious crimes. National legal systems should be carefully designed or interpreted to selectively apply to severe human rights violations (Cryer et al., 2019). ...
This article examines the effect of enforcing gross human rights violations and the implications of Indonesia as a state that did not ratify the Rome Statute. This study is done by studying the legal basis of human rights courts in Indonesia. A doctrinal approach is used. The main legal materials used are the Human Right Court Law (2000) and human rights court decisions. The research findings indicate that the process of enforcing gross human rights violations requires integration between National Human Rights Commission as an investigator and the Attorney General's Office as an investigator. The substance of enforcing gross human rights violations is a formality because Indonesia, as a sovereign state, has the right to determine the model of enforcing gross human rights. However, in fact, there are still many gross human rights violations that cannot be resolved due to differences in perceptions of sufficient preliminary evidence. For this reason, reformulation of the Human Right Court Law (2000) is needed.
... According to the Tadić judgment, the objective elements (that is, the actus reus) (Cryer et al., 2019) regarding each of the three categories of cases are threefold, these being (a) a plurality of persons, (b) a common design, and (c) the accused's participation in the JCE. By the first element, the accused are not requested to be grouped together into any military, political, or administrative structure. ...
Mass atrocity crimes constitute a grave affront to international peace and security as well as to human rights. Due to their deep reach in society, they also constitute a very major social predicament. It is undignifying to allow perpetrators of these crimes to be left un-investigated or unpunished. This paper considers how behind the scenes high-ranking military and political indirect perpetrators of mass atrocity crimes should be adjudged guilty of collective criminal responsibility. One mode of collective criminal responsibility – Joint Criminal Enterprise (JCE) – is hereby analysed. Considering the International Criminal Court’s praxis in rejecting certain approaches to JCE, we propose two amendments to the ICC’s Rome Statute, namely: incorporating JCE into Article 25(3)(a) to include acts through another person via JCE, and adding provisions to define elements of Article 25A to guide the Court’s interpretation. This will enable the ICC to apply JCE like the international ad hoc tribunals have done in the past, in the process enhancing the capacity to hold masterminds accountable and buttressing the causes of restorative and social justice in societies grappling with the effects of mass atrocities.
... 124 A similar issue developed in the field of international criminal law; in 1993, Belgium enacted a law granting itself universal jurisdiction to prosecute war crimes (and later, other international crimes) on behalf of the accuser or accusing state, irrespective of where the crime occurred. 125 In this case, there was a substantial degree of political controversy over the Belgian claim to universal jurisdiction, leading to a court case against Belgium for acting unlawfully. 126 Although it can be argued that the Belgian law and claim to universal jurisdiction is no longer truly universal, it does retain a strong degree of extraterritoriality, and this is still a sensitive political issue. ...
On 4 December 2006, during discussions on the Corporate Manslaughter and Corporate Homicide Bill, Andrew Dismore, Member of Parliament and then Chair of the Joint Committee on Human Rights, said,
‘Organisations can kill people … but it is
the actions and omissions of people in organisations that cumulatively cause death’.
However, the corporate entity is a vehicle for the communal actions of those who guide
the business activities. Attempting to seek out persons or people that are solely responsible for deaths and violations of human rights caused by companies is fruitless. The entity is a vehicle for those actions, it possesses its own, often deep, pockets of finance and resources, and it has a public image. It is more useful to punish the corporate entity, in instances where the corporate behaviour has led to death and human rights abuses, as it is in seeking out individual defendants. Soft law options have not brought about a sufficient reduction in instances of deaths caused by
corporate behaviour across jurisdictional borders. This article will argue that the time
has now come to establish an international hard law on corporate killing, and for states
to ensure that there is a viable path towards a redress for victims and their families along with adopting a duty to assist the victim or their family to pursue redress to ensure a fair balance of power against transnational companies.
... 6 It is however the Nuremberg Charter of 1945 7 which is credited for having given form to the international law of war crimes. Article 6(b) of the Charter defined war crimes to include: 3 Cryer, R., Robinson, D., & Vasiliev, S. (2019). An Introduction to International Criminal Law and Procedure (4th ed. ...
An array of individual and collective rights protected by international human rights and humanitarian law are impacted by irresponsible (but legal) arms transfers, every day. While several domestic and international arms trade regulations have been adopted to mitigate irresponsible arms sales, the pre-emptive nature, limited legal substance, and ineffective enforcement of these regulations has left a significant accountability gap in the arms industry. This has enabled unchecked flow of weapons and facilitated atrocities across the world with impunity. This thesis posits that in the prevailing context of low accountability, International criminal law, on the basis of principles of accomplice liability, is a viable tool for the regulation of arms trade and provision of justice for victims of war crimes caused by irresponsible arms trade. The thesis draws on the legal precedent from the Nuremberg trials, and other past and ongoing cases in international and national jurisdictions to demonstrate that corporate officers, sole-trading shipping agents and arms brokers may be criminally liable if-and where-it is established that they transferred arms in deliberate disregard of the fact that war crimes were being committed with the arms they supplied. The thesis analyses the mens rea and actus reus (standard of causation) in cases of complicity in war crimes, addressing the question of what the degree of causation should be for aiding and abetting liability of arms suppliers whose weapons have assisted in the commission of war crimes. The thesis suggests that criminal liability of corporate officers and arms suppliers is imperative to capture the full range of war crimes committed in armed conflicts, ensure accountability and break the cycle of irresponsible arms exports.
This study explores the international legal options for prosecuting crimes against humanity in South Sudan. Crimes against humanity (CAH) are condemned under Article 7 of the Rome Statute, which established the International Criminal Court (ICC). Article 15 of the ICC permits the prosecutor to investigate international crimes (genocide, war crimes, crimes against humanity, and aggression) within the jurisdiction of its member states or when a state refers a case to the United Nations Security Council (UNSC). South Sudan has neither ratified the Rome Statute nor referred the matter to the UNSC. This exploratory study examined and investigated potential solutions. Consequently, prosecuting crimes against humanity in South Sudan remains a challenging issue, yet crimes committed there are international concerns and are subject to the principle of jus cogens. Holding individuals accused of CAH accountable will help promote peace, reconciliation, repatriation, retribution, historical record-keeping, accountability, and, importantly, restore stability within the country. This dissertation examines alternative legal options for addressing CAH in South Sudan.
The Srebrenica genocide has been the subject of multiple legal proceedings against various actors before different courts, at both the national and international level. Amongst others, the International Criminal Tribunal for the Former Yugoslavia has sentenced various individual perpetrators, the International Court of Justice has ruled on the responsibility of the Serbian state, and Dutch courts have been asked to rule on the liability of the Dutch state and the United Nations. This raises the following question: to what extent have multiple adjudicatory mechanisms across legal regimes managed to deliver accountability for the Srebrenica genocide and what are the remaining accountability gaps? In order to answer this question, the article focuses on both legal procedural accountability and substantive accountability. It first recalls the events of July 1995, including the different actors involved (both through their actions and omissions), before giving an overview of cases that have been litigated under criminal law, tort law, and international state responsibility law in multiple international, regional and domestic jurisdictions. The analysis concludes with an overarching analysis of the extent to which legal accountability for the Srebrenica genocide has been achieved.
The ever-evolving landscape of International Criminal Law (ICL), as a field that connects different branches and levels of law, requires meticulous deliberation. Establishing international justice is a crucial step in ensuring that all perpetrators are held accountable. The International Criminal Court (ICC/the Court) has issued two arrest warrants against the President and Commissioner for Children’s Rights of the Russian Federation, on March 17, 2023, for their involvement in forced population transfer which is an international crime under the Rome Statute. This research article seeks to explore the Ukraine situation from the perspective of ICL and examine the arrest warrants issued by the ICC against Russian authorities. Additionally, it briefly addresses the Ukraine’s lawfare against Russia at the International Court of Justice (ICJ) and the European Court of Human Rights (ECtHR). While the issuance of the arrest warrants is in itself a positive step toward the fortification of international criminal justice, the implementation of these warrants specifically regarding the President of the Russian Federation seems to be very problematic. Nevertheless, in spite of the challenges faced by the ICC in this situation, issuance of the arrest warrants reveals a significant reality: international criminal justice does not exempt even the president of a permanent member of the UN Security Council. Furthermore, the legal actions taken by Ukraine against Russia at both the ICJ and ECtHR are legally positive steps towards halting aggression and restoring international peace and security through international law. However, these actions face challenges such as time constraints and compliance.
The establishment of lasting peace as a requirement for overall societal development is one of the major challenges facing emerging multi-ethnic societies. On the other hand, a lack of fundamental rights and liberties can spark unrest within the state, with the potential for conflict escalation and the involvement of other countries. The Balkan region is a classic example of ethnic conflict that has resulted in crimes and deep enmities between people who once lived peacefully together. The paper compares Kosovo to other Balkan countries in terms of the importance of empowering minority rights and freedoms, as well as using the proactive approach of governmental institutions to include minority community members in the decision-making process. The research has found that the minority groups are not well informed on legal guarantees of their rights and liberties, therefore the impression of legal gaps in safeguarding the latter is very significant. Long-term peace can be maintained by ensuring minorities' rights through the constitution and legal framework and then ensuring those rights are known to the minorities and upheld as well. The article applies a legal-doctrinal, analytical, comparative, qualitative, and quantitative method to determine the legal framework of minority community rights in Kosovo and how they interact with state institutions.
This chapter addresses the legal implications of defining genocide as an endangerment crime in relation to the actus reus. It begins by reinterpreting the ICC's approach in the Al Bashir case, demonstrating how the court effectively positioned the contextual element as an objective threshold for the crime's consummation, aligning it more with the material elements of genocide rather than its subjective components. The chapter then examines how the collective context of perpetration shapes the structure of the crime and its application to various genocidal acts, including killing, causing serious bodily or mental harm, and inflicting conditions of life calculated to bring about the group's destruction. Through this analysis, the chapter explores the relationship between individual harm and collective endangerment within the frameworks of result-based and conduct-based genocidal acts. It also addresses the argument that while some genocidal acts are inherently collective, others may be perpetrated by a lone actor. The chapter concludes with a discussion of substantiality and its implications within the legal framework of genocide.
This chapter focuses on the legal value underlying the prohibition of genocide. It examines how different legal traditions, particularly the harm principle in common law and the Rechtsgut theory in civil law, converge in safeguarding fundamental values in the realm of criminal law. Building on the doctrine and analyses of domestic law, it articulates a trans-subjective approach vis-à-vis the protected legal value of the law on genocide, reconciling the subjective and objective elements of the existing theories. In this constellation, the protected group serves as the critical link between intent (mens rea) and action (actus reus). The analysis is extended to the classification of national, ethnic, racial, and religious groups, arguing for a nuanced understanding that reflects the complex interplay between group identity, legal definitions, and the collective right to exist. Ultimately, the chapter underscores the importance of balancing the subjective and objective aspects of genocide to maintain the integrity of international criminal law.
This chapter addresses one of the most complex aspects of genocide—the crime’s mens rea, which sets it apart from both common law offenses and other core international crimes. After reviewing how genocidal intent has been interpreted in the jurisprudence of the ad hoc tribunals, the chapter explores the realistic components of genocide’s general and special intent. The discussion includes an analysis of the existing theories of genocidal intent, focusing on both the purpose-based and knowledge-based approaches. Common misunderstandings, such as the assumption that the knowledge-based approach is a recent or innovative concept, are clarified. Additionally, the chapter examines the fundamental premises of the knowledge-based theory, emphasizing the role of taxonomy or hierarchy among different types of offenders in the commission of genocide. Through this examination, the chapter seeks to provide a clearer understanding of the mens rea that underpins the crime of genocide and its unique legal significance.
This chapter seeks to bridge the gap between the social and legal interpretations of genocide by exploring the complex processes that define and transform targeted groups through mechanisms of stigmatization, othering, and dehumanization. It critically examines how legal frameworks, particularly those rooted in the Genocide Convention, often compartmentalize the phenomenon of genocide into rigid judicial constructs that may overlook the broader sociological realities. The chapter argues for a more integrative approach that considers the continuum of genocide, from initial targeting and othering to the ultimate destruction of the group, and underscores the importance of understanding the dynamic and trans-subjective nature of group identity in the context of genocide. By engaging with both legal and non-legal perspectives, the chapter highlights the challenges and necessities of aligning legal norms with the social realities of genocidal processes to ensure both justice and the protection of vulnerable groups
This chapter addresses the legal challenges posed by introducing the contextual element in the structure of the crime of genocide through the Elements of Crimes (EOC) and examines the relationship between the collective context of perpetration and the structure of the crime of genocide. Genocide is analyzed as an endangerment crime, exploring the various nuances that the structure of endangerment acquires when incorporated into inchoate genocidal offenses, specifically focusing on direct and public incitement and conspiracy as outlined in Article III(b)–(c) of the Genocide Convention. These inchoate offenses are chosen as the starting point due to their role in the preventive function of the Convention. They identify the existential risks that the law seeks to address and suppress criminal conduct that threatens the protected legal interest, even when such conduct falls short of genocide proper. The chapter concludes with a discussion on how these offenses reflect the broader preventive logic of the Genocide Convention and the challenges of aligning the legal framework with the realities of perpetrations, namely the collective and contextual nature of genocide.
This chapter critically examines the prevailing understanding of grouphood within the context of genocide law, highlighting the challenges and shortcomings of current interpretations. A thorough critique of the increasingly popular perpetrator-based subjectivity in constructing the four groups, particularly among legal scholars, is offered. By revisiting the concept of grouphood from historical, teleological, and victimological perspectives, the chapter aims to illuminate its original conceptualization by the drafters, its interpretation by international lawyers at the time, and its evolution in State practice prior to the 1990s. Through a contextual analysis of the first significant international criminal trial on genocide, the case against Jean-Paul Akayesu at the ICTR, core criticisms of the so-called ‘objective’ interpretation of the four groups are reassessed, the ‘permanent and stable’ formula is reconstructed, and the notion of involuntariness in defining protected grouphood is explored.
This chapter explores the trajectory of genocide (iter criminis) within international legal scholarship. The previous chapters presented doctrinal and practical arguments against a purely subjective perpetrator-based interpretation of genocide, particularly concerning the definition of protected groups. While it is undeniable that the perpetrator plays a crucial role in shaping the criminal trajectory, an exclusive focus on the perpetrator’s perspective can lead to unreasonable or even absurd legal outcomes. By analysing a classic example from the law of attempts (inverted mistake of fact, impossible attempts), this chapter demonstrates the limitations of a perpetrator-centred approach in applying genocide law. An alternative exegesis is then proposed, which incorporates not only the subjective dimension of perpetration but also considers the trans-subjective nature of the protected legal values, offering a more balanced and comprehensive framework for understanding the crime of genocide.
This chapter proposes a new interpretation of genocidal intent, focusing on the relationship between desire, knowledge, and intent within the crime of genocide. The analysis focuses particularly on the interplay between motives and intent on the collective and individual levels by reinterpreting the qualifier ‘as such’. To support this new understanding, the chapter makes use of historical and contemporary legal debates, the drafting history of the Genocide Convention, key judgments from international tribunals, and basic concepts from the philosophy of desire. It then challenges the conventional views on the inscrutability of motives in genocide, arguing for a more inclusive understanding that incorporates both desire-based and knowledge-based understandings of intent. The discussion also addresses the implications of this interpretation for different levels of perpetrators, from high-level masterminds to low-level foot soldiers. This chapter concludes by considering the potential impact of this approach on the prosecution and understanding of genocide.
The situation in Palestine was referred to the International Criminal Court (ICC) in 2015. This study highlights the various hurdles that remain ahead of the Court and argues that the key essence of international law is to ensure the harmonious coexistence of nations, while at the same time respecting states' sovereignty. The study employed a qualitative research and normative legal approach, relying on primary and secondary sources of international law. The study reveals that following the establishment of the Court's jurisdiction and upon conducting a thorough investigation, the Court affirmed the commission of war crimes by Israel, which fall within the ambit of the Rome Statute, thus allowing the Court to prosecute the war criminals. Consequently, in 2024, the Office of the Prosecutor (OTP) issued arrest warrants against Israeli and Hamas leaders. Despite the ICC having the mandate to try individuals for the alleged commission of international crimes, the enforcement of such arrests has often been a matter of speculation, since the ICC is encircled with numerous stumbling blocks in effectuating the arrests. The Court uses arrest warrants to pressure states to prosecute perpetrators domestically and avoid armed conflicts, as shown by urgent mediation and ceasefire proposals after the OTP announcement. Abstrak. Situasi di Palestina dirujuk ke Pengadilan Pidana Internasional (ICC) pada tahun 2015. Penelitian ini menyoroti berbagai hambatan yang masih dihadapi oleh Pengadilan dan berargumen bahwa inti dari hukum internasional adalah untuk memastikan eksistensi yang harmonis antar negara, sambil tetap menghormati kedaulatan negara-negara tersebut. Penelitian ini menggunakan pendekatan penelitian kualitatif dan pendekatan hukum normatif, dengan mengandalkan sumber primer dan sekunder dari hukum internasional. Penelitian ini mengungkapkan bahwa setelah penetapan yurisdiksi Pengadilan dan dilakukan penyelidikan menyeluruh, Pengadilan menegaskan adanya kejahatan perang yang dilakukan oleh Israel, yang masuk dalam lingkup Statuta Roma, sehingga memungkinkan Pengadilan untuk mengadili para pelaku kejahatan perang. Akibatnya, pada tahun 2024, Kantor Jaksa Penuntut Umum (OTP) mengeluarkan surat perintah penangkapan terhadap pemimpin Israel dan Hamas. Meskipun ICC memiliki mandat untuk mengadili individu atas dugaan pelanggaran kejahatan internasional, pelaksanaan penangkapan tersebut seringkali menjadi spekulasi, karena ICC dikelilingi oleh berbagai hambatan dalam melaksanakan penangkapan tersebut. Oleh karena itu, melalui surat perintah penangkapan ini, Pengadilan berusaha untuk memaksa negara-negara agar mengadili pelaku kejahatan tersebut secara domestik dan untuk menghindari konflik bersenjata, seperti yang terlihat dari upaya mediasi yang mendesak dan proposal gencatan senjata setelah pengumuman OTP.
El artículo examina los elementos de los crímenes de derecho penal internacional, mediante el análisis dogmático y la revisión doctrinal y jurisprudencial, a partir de una breve revisión de su estructura general, para posteriormente profundizar en el elemento subjetivo y sus características para responsabilizar a los superiores, distinguiendo si corresponden —o no— a militares y civiles, y cómo se presenta en la ley especial chilena. La investigación se centra en determinar el contenido concreto de dicho elemento subjetivo, analizando su interpretación en la doctrina y jurisprudencia, así como los requisitos de conocimiento compartido entre superior y subordinado que demanda el principio de culpabilidad. Atendidas las particularidades del mens rea respecto de la responsabilidad de los superiores, se busca examinar, a la luz del principio de culpabilidad, si el elemento subjetivo se debe compartir entre el autor directo y el superior observando, además de la normativa internacional, la ley chilena, paradigmática debido a que es una particular norma local que describe un estatuto especial de responsabilidad del superior.
Under international law, it is each State's obligation and responsibility to recognize the most serious crimes committed against the international community, as well as criminalize and conduct effective investigations and prosecution of them. The establishment of a permanent International Criminal Court, whose well-known complementarity principle is one of its central tenets, has finally emerged as a pillar in the fight against the impunity of international crimes. The article derives from various implementations a test for determining the characteristics and functions of the correction function of international law, thus presents the argument that the Rome Statute's complementary role provides a corrective function.
تتناول هذه المقالة قضية ازدواجية معايير الغرب في التعامل مع قرارات محكمة الجنايات الدولية، مع التركيز على تأخر قرار اعتقال مجرمي الحرب الإسرائيليين نتنياهو وغالانت. تشكل هذه القضية نموذجاً صارخاً لتأثير المصالح السياسية على العدالة الدولية، حيث يتضح التناقض بين الالتزامات القانونية والممارسات العملية. تبرز أهمية الموضوع من دوره في كشف التحديات التي تواجه تحقيق العدالة الدولية ومكافحة الإفلات من العقاب. كما يعكس التأثير السلبي لازدواجية المعايير على مصداقية النظام القانوني الدولي، خصوصاً فيما يتعلق بالقضايا المتعلقة بفلسطين. يمثل الموضوع دعوة لمراجعة الالتزامات الدولية واحترام مبدأ سيادة القانون، بما يضمن العدالة لجميع الأطراف. اعتمدت الدراسة على تحليل الوثائق القانونية المتعلقة بميثاق روما ومحكمة الجنايات الدولية، بالإضافة إلى دراسة تصريحات المسؤولين مثل مدعي المحكمة كريم خان. كما استندت إلى مراجعة سياسات الدول الغربية تجاه قرارات المحكمة، مع التركيز على الخطاب السياسي والإعلامي المصاحب لهذه القضايا.خلصت المقالة إلى أن ازدواجية معايير الغرب تُقوض العدالة الدولية وتُضعف ثقة الشعوب بالنظام القانوني العالمي. لتحقيق نظام عالمي عادل، يجب على المجتمع الدولي الالتزام بتنفيذ قرارات محكمة الجنايات الدولية دون تمييز أو تأثير سياسي. كما أكدت على ضرورة تعزيز التعاون بين الدول الموقعة وغير الموقعة على ميثاق روما لضمان احترام حقوق الإنسان ومكافحة الإفلات من العقاب.
The regulation of protection during armed conflicts is greatly aided by the distinction between the rights and protections granted to combatants and non-combatants under International Humanitarian Law (IHL). Nonetheless, there hasn't been much discussion in the literature about how nationality affects how these legal safeguards are applied. This study attempts to investigate how fighters' and non-combatants' rights and safeguards under IHL are impacted by nationality. The results show that nationality can have a substantial impact on the legal status and level of protection that individuals receive, regardless of whether they are combatants or not. This research examines obstacles to the application of legal safeguards and illustrates how nationality influences their implementation using case studies of the crises in Syria and Ukraine. The study suggests that within IHL, precise standards on nationality be developed.
Indirect co-perpetratorship as a means of prosecution under individual criminal responsibilityis a paradigm shift from the International Criminal Court rejecting the Joint Criminal EnterpriseNotion adopted by the International Criminal Tribunal for Former Yugoslavia and Rwanda(ICTR & ICTY). An individual can be made liable for his/her conduct within an organizationeven if the individual has no participation over the dolus actus or if the participation is notdirect. The position or authority an individual posse within an organization is calibrated strongenough ground that such individual has the capacity to control the will of the perpetrators whoexecute the common plan or behold the conduct and frustrate the commission of crime. Theindirect co-perpetratorship under ICC can be either performed as an individual or jointly withanother person. Amidst the criticism the mode of liability has faced, it has been an area toexplore in regard to different nature of jurisprudence emancipated by the ICC during theapplication of the same. In lack of concrete elements, the indirect co-perpetration has resultedin sparking a heat of discussion among the fraternity of International Criminal Law yet thenotion is a gray area thus requiring an exploration and comments to improve the efficiency andapplicability of the same
The inclusion of fundamental rights and their enforcement are one of the basic features of the Bangladesh Constitution, subject to certain lawful restrictions. In addition to the rights-specific grounds, articles 47(3) and 47A of the Constitution provide an additional ground for restricting certain fundamental rights. This exception centres around the trial of ‘genocide, crimes against humanity or war crimes and other crimes under international law’ that may be called the ‘international crimes’ exception to fundamental rights. This chapter addresses the questions surrounding the scope of this exception primarily from constitutional law perspective. Its introduction delineates the background, followed by (a) an account of the justifications for incorporating such exception; (b) the construction of the ‘international crimes’ exception from the constitutional and international law perspectives; and (c) a critical analysis of the consequences of the ‘international crimes’ exception on fundamental rights. It concludes with recommendations for a progressive and contextual understanding of such exceptions. Particularly, it argues that the ‘international crimes’ exception along with the Bangladesh International Crimes Tribunals Act 1973, though reflected existing international law at the time of its adoption, demands a reappraisal in the light of the development of the obligations to criminalise, prosecute, and punish the perpetrators of international crimes after 1973.KeywordsHuman rightsInternational crimesInternational Crimes Tribunals-BangladeshFundamental rightsConstitutional lawInternational law
The article focuses on reparations, as ordered by the International Criminal Court (ICC) against a convicted individual. It has long been orthodoxy that such measures fulfil solely compensatory objectives, for they lack any punitive intent. This article offers a rival account. An analysis of the respective regulatory and contextual framework reveals that, by design, reparations are allowed to pursue compensatory and punitive goals equally. An analysis of the reparations orders themselves affirms that, in practice, the ICC utilizes reparations as a means to accomplish compensatory and punitive objectives both. It is maintained that reparations orders are both remedial and punitive in nature. Ignoring this reality has a negative impact on individual prerogatives, and contradicts fundamental sentencing ideals of international criminal justice. It follows that the current reparations order regime should be reformed. The ICC should either explicitly acknowledge reparations as punishment, or detach them from criminal proceedings altogether.
This chapter discusses forms of perpetration in crime set out in Article 25(3)(a) of the Rome Statute. It considers the decisions and judgments issued by the end of December 2022, including but not limited to Lubanga, Katanga, Ntaganda, Ongwen, Al Bashir and Al Mahdi cases. The reference to the existing caselaw was used to show how the objective and subjective elements of perpetration (single/direct perpetration, co-perpetration and indirect perpetration) were understood and applied in the existing ICC practice. The Chapter also aims to point out the controversies that arise in the context of a broad understanding of perpetration based on the concept of ‘control over the crime’. In this regard, I formulate a general conclusion that contrary to the prevailing practice the notion of ‘crime’s commission’ shall be interpreted narrowly and focus on the physical execution of the crime’s elements (alone or in agreement with someone else) or direct control over the execution of the crime by someone else.
There is no doubt whatsoever that from a human rights perspective, the Lisbon Treaty, which entered into force on 1 December 2009, starts promisingly: “The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities.” (Article 2, first sentence TEU). At the same time, the protection and promotion of human rights are an integral part of the catalogue of objectives of the European Union (Art. 3 TEU). The question therefore arises as to what extent the European Union is doing to protect and promote human rights both within the EU and in the EU’s external action.
The article focuses on contemporary challenges concerning the domestic prosecution of the crime of aggression. These challenges have one common feature, that they deal with the scope of jurisdiction over crime of aggression at a domestic level. The author analyses applicability of jurisdictional immunity (based on the principle pars in parem non habet iurisdictionem ), immunity of State officials, both personal ( ratione personae ) and material ( ratione materiae ), and finally also the availability of universal jurisdiction in relation to the crime of aggression. The contribution is built on the presumption that even though each category of crimes under international law has its unique characteristics, they all share some common definitional features, reflected among else in the famous Cassese’s definition of crime under international law. The author argues that all crimes under international law are to be treated uniformly as much as possible, and therefore – relatedly – there should not be any unsubstantiated differences in standing of the crime of aggression comparing to standing of remaining categories of crimes under international law.
The article, based on the study of doctrinal developments and the practice of states, reveals the issue of national legislation as a source of the obligation to extradite or prosecute (aut dedere aut judicare). The article highlights the position of the UN International Law Commission on the role of national legislation and state practice in implementing the obligation to extradite or prosecute; the practice of certain states (Finland, Estonia, Macedonia, Azerbaijan, Ukraine) regarding the legal establishment of the obligation to extradite or prosecute is considered; the measures that states should follow at the national level in order to effectively implement the principle of aut dedere aut judicare are defined. The article establishes that the determination of the legal nature and scope of the obligation aut dedere aut judicare is possible through the study of various types of sources in which this obligation is established (treaties, customs, international and national court decisions, national legislation of states). The obligation to extradite or prosecute has traditionally been established by international treaties of various types, the number of which is constantly increasing. The participation of many states in such international treaties (of a universal, regional or bilateral nature) is a reflection of the existing national practice of the states regarding the implementation of the principle of aut dedere aut judicare. It is substantiated that, along with treaties and customary (at least for the most serious international crimes) enshrining the principle of aut dedere aut judicare, national criminal law is an important source of the obligation to extradite or prosecute. The effective implementation of the principle of aut dedere aut judicare in each specific case will depend on the state’s fulfillment of both its international obligations and the implementation of the necessary measures (in particular, regarding the establishment of jurisdiction over offenders and criminal offenses) defined in national legislation with regard to extradition and prosecution.
The trial of a criminal charge may be held in absentia if the accused, duly summoned, fails to appear totally or after s/he was initially present when the trial begins. Ethiopia’s Criminal Procedure restricts trial in absentia to grave crimes and specific fiscal crimes. It also has procedures for summons and retrial. However, it lacks sufficient clarity about issues relating to the partial absence of the accused, the requirement of personal summons, setting aside sentences imposed in absentia, the possibility of rehearing if a defendant fails to appear in appeals by the prosecution and whether an accused may choose representation by defense counsel than standing trial in person. The Cassation Division of the Federal Supreme Court has continued giving binding interpretations that expand the scope of trial in absentia even for minor crimes precluding retrial. Having examined relevant literature and comparative experience, it is suggested that express provisions that address these gaps need to be embodied in the Draft Criminal Procedure and Evidence Law. The Cassation Division should also reconsider its binding interpretations in light of restricting the scope of trial in absentia and towards allowing retrial in cases the accused’s absence for good cause.
The article deals with the applicability of apartheid in occupied territory. Rather than assessing whether in specific situation of an occupation an occupying power has established an apartheid regime, the article discusses whether there is anything in the law of occupation or in the international regulation of apartheid that makes them mutually exclusive. On the basis of international human rights law, international criminal law, and international humanitarian law considerations, it is argued that apartheid can be applied to occupied territory following the ordinary rules for the application of international human rights law and international criminal law in occupied territory. Accordingly, international law does not bar the application of apartheid in occupied territory, but rather, the law of occupation and apartheid coincide to strengthen the protection of civilians in occupied territories.
On November 17, 2022, the Dutch District Court of The Hague found three persons liable in connection with the downing of Malaysia Airlines Flight 17, which occurred in the breakaway oblast of Donetsk in July 2014. Drawing on this judgment, the present essay examines whether the Russian Federation can be regarded as a State actively involved in this incident with a view to investigating to what extent it exercised “overall control” over the Donetsk People's Republic's separatists. Afterwards, the analysis is framed in the context of the wider legal dispute between Ukraine and the Russian Federation before the International Court of Justice, where the former maintained, inter alia , that the latter failed to honour its obligation under the 1999 International Convention for the Suppression of the Financing of Terrorism —specifically, by providing the separatists with the “fund” (i.e., a BUK TELAR) that forced the aircraft to crash. Ultimately, the legal implications of the findings are assessed to foresee the outcome of the International Court of Justice's decision on the merits.
The ongoing war in Ukraine has again highlighted the link between conflict and trafficking in persons, especially refugees. Despite the understanding that trafficking in human beings in the context of armed conflict (and sometimes even outside of it) can amount to an international crime, both research and anti-trafficking policies tend to view trafficking as a (trans)national phenomenon. As a result, the potential of the International Criminal Court (ICC), a permanent international criminal tribunal tasked with adjudicating perpetrators of international crimes, to contribute to the fight against human trafficking remains largely neglected in current discourses. To fill this gap and, at the same time, facilitate efforts to build an effective and sustainable capacity to combat human trafficking at the (trans)national and international levels (UN Sustainable Development Goal 16), this article has two objectives. First, it examines the ICC’s procedural capacity to combat human trafficking, focusing on its support for domestic investigations and prosecutions and the requirements for effectively transferring prosecutions to the international level. Second, it analyzes the substantive requirements for qualifying human trafficking as an international crime for purposes of effective prosecution at the ICC in light of recent jurisprudence, especially the Ongwen case.
The Holodomor and Katyn Massacre are founding crimes of the USSR and the Eastern Bloc's state. Their common feature was an attempt to annihilate nations and prevent them from achieving independence. Quite often, both crimes are called genocide, but their legal qualification from the perspective of the then international law is extremely difficult. However , there are solid grounds for qualifying both of these crimes, and particularly the Katyn Massacre, as genocide. As a result of the development of the law of armed conflicts in international law in the 1930s and 1940s, there was a ban on committing acts that the 1948 Convention defined as genocide.
Legal harmonisation of cyber laws in the Association of Southeast Asian Nations (ASEAN) is necessary to combat the transnational nature of cybercrimes. However, this is a difficult task in ASEAN as it requires all ASEAN member states to agree on a uniform cybercrime regulatory framework. The rapid evolution of cybercrime also undermines the strength of a static convention. This leads to the following question: How can a harmonized regulatory framework that would efficiently tackle the rapid evolution of cybercrime be designed? Regrettably, the Budapest Convention failed to facilitate the legal harmonisation in ASEAN with its inability to reach universal consensus. This paper argues that a regional cybercrime court, namely the ASEAN Cybercrime Court, can be an alternative approach to achieving legal harmonisation with the prevalence of cybercrimes. The theoretical framework of this paper is based on the concept of international common law articulated by Andrew Guzman and Timothy Meyer, in which certain members unable to agree on a broad agreement can instead agree to shallow rules to create an institution with authority to promulgate rules. In effect, it reduces the transaction costs for reaching a consensus. This paper also analyses the feasibility and merit of the creation of the ASEAN Cybercrime Court from three aspects: the jurisdiction, the existence of an independent prosecutorʼs office and the legal interpretation. Although the solution is not a perfect answer to legal harmonisation, it serves as a starting point on a path to progress ultimately leading to the conclusion of a binding multilateral treaty.
The basis for establishing the ICTY and the ICTR has been regarded as the jus puniendi of the international community, as exercised by the SC acting under Chapter VII of the UN Charter. The SC exercised the jus puniendi due to the common values shared among its members, notably, the P5, and its power to enforce the peace and security of the world. However, given the SC’s political nature, this was not an ideal solution for implementing ICL. The alternative was establishing an independent and universal international criminal tribunal based on the jus puniendi of its Member States. Considering the close relationship between peace and justice, the Rome Statute combined both types of jus puniendi. While there has always been theoretical and practical tension between the power of the SC and that of international criminal tribunals, the drafters of the Rome Statute tried to transform this tension into complementary and cooperative relationship. However, the practice of the ICC so far has shown many difficulties that neither the SC nor the ICC can overcome. The Russian invasion of Ukraine was a fatal blow to the basis of the SC as an agent of the jus puniendi of the international community and, as a result, to the cooperation between the SC and the ICC. The ICC must find an innovative way forward to implement ICL effectively.
Bu çalışma, uluslararası düzeyde gerçekleştirilen ve desteklenen çağdaş barış inşası pratiği içindeki dönüşümü incelemektedir. Günümüze değin gerçekleştirilen barış inşası modelleri, pratik ve kavramsal olarak ‘liberal barış’ yöntemini yansıtmaktadır. Liberal barış yöntemi, şiddetli çatışmaların ardından, bir siyasi topluluğun restorasyonuna veya yeniden oluşturulmasına yönelik adımları içermektedir. Ancak yeniden inşa etme ihtiyacı, yalnızca devlet kurumları düzeyinde değil; aynı zamanda sosyal ve politik ilişkilerin her alanında, özellikle de insanların gündelik yaşam düzeyini de ilgilendirmelidir. Liberal barış yöntemi, demokrasi, insan hakları, hukukun üstünlüğü vb. sistemleri Haiti, Bosna-Hersek, Afganistan ve diğer savaş sonrası devletlerde görüldüğü gibi, sürdürülebilir barışı yerleştirmede ve kurumsallaştırmada başarısız olmuştur. Bu nedenle çalışmada, savaştan çıkan toplumlarda barışın (ve güvenliğin, kalkınmanın, yeniden yapılandırmanın) dışsal ve yerel arasındaki ‘hibriditeye’ bağlı olduğu savunulmaktadır. Çalışmada barış inşasının ancak liberal ile yerel arasındaki etkileşimle başarılı olabileceği, Birleşmiş Milletlerin (BM) Doğu Timor müdahalesi örneği üzerinden gösterilmektedir. Dolayısıyla çalışmada ‘hibrit barış’ yaklaşımının, uluslararası normlar, çıkarlar, yerel katılım ve kimlik biçimleri arasındaki ilişkiyi temsil etmesi nedeniyle, çatışma dönüşümünde sürdürülebilir barışı sağlayabileceği ileri sürülmektedir.
This article argues that an international anti-corruption court has to respect the functional and personal immunity of officials of states that are not a party to it. If an exception applies to immunity before international courts that prosecute international crimes, this exception does not extend to a court that would prosecute transnational crimes. Since personal immunity rules stand in the way of prosecution of (certain, high-level) kleptocrats in foreign national courts, these rules will also hamper the exercise of jurisdiction by an international court. The article further takes issue with the oftheard proposition that corruption is a purely private act that escapes the reach of the functional immunity rule, concluding that functional immunity considerations require closer study in the context of the plans to prosecute corruption crimes at the international level.
Сучасні умови сьогодення сповна свідчать про певне зрушення у тому світоглядному і науковому, що, у свій час, закладав А. Ейнштейн своєю добре відомою фразою про те, що він ніколи не думає про майбутнє, адже воно і так скоро настане.
І, як було встановлено, принаймні у сфері міжнародного кримінального права, такий стан справ в його доктрині та практиці, нині навряд чи можна назвати справедливим, більшою мірою, через те, що починаючи, щонайменше, з 1990-х років «футуристичні» роздуми проглядаються, якщо не пронизують, переважну більшість фахових та експертних публікацій, присвячених, як власне, осмисленню самого міжнародного кримінального права безпосередньо, так і діяльності міжнародних кримінальних трибуналів та судів, – зокрема Міжнародного кримінального суду й інших гібридних інституцій, та, загалом сферу міжнародної кримінальної юстиції.
Обґрунтовано, що тематика «майбутнього» у роботах відомих спеціалістів зазнала суттєву трансформацію, пройшовши достатньо довгий і тернистий шлях від доволі боязких спроб прогнозування окремих аспектів майбутнього до повноцінних самостійних досліджень, присвячених виключно питанням його передбачення, та, що більш амбітно, формування.
З’ясовано і доведено, що підґрунтям для проектування міжнародного кримінального права майбутнього, як і раніше, все ще слугує його минуле, – досвід і спадщина функціонування органів міжнародної кримінальної юстиції.
Систематизовано виклики, як ті, що історично стояли перед міжнародним кримінальним правом, так й ті, які починають прослідковуватись у сучасних реаліях. Охарактеризовано новітні тренди та тенденції, зокрема щодо принципу «компліментарності» дії Міжнародного кримінального суду та процесу «одомашнення» міжнародного кримінального права.
Сформовано та запропоновано деякі власні авторські міркування щодо майбутнього міжнародного кримінального права та кримінального права майбутнього.
The modern conditions of the present days fully testify to a certain shift in the outlook and science, which, in his time, was laid by A. Einstein with his well known phrase that he never thinks of the future, because it will come soon enough.
And, as it was established, at least in the field of international criminal law, such a state of affairs in its doctrine and practice can hardly be called fair today, to a greater extent, due to the fact that, starting at least from the 1990s, “futuristic” reflections are visible, if not penetrate, the vast majority of professional and expert publications, dedicated both to the understanding of international criminal law itself precisely, and to the activities of international criminal tribunals and courts, in particular the International Criminal Court and other hybrid institutions, as well as the sphere of international criminal justice in general.
It is substantiated that the subject of the “future” has undergone a significant transformation in the scholarly works of well-known specialists, going through a rather long and thorny path from quite timid attempts to predict certain aspects of the future to full-fledged independent studies devoted exclusively to the issues of its prediction and, more ambitiously, its formation.
It has been clarified and proven that the basis for the design of international criminal law of the future, as before, is still served by its past, the experience and heritage of the functioning of international criminal justice bodies.
Challenges are systematized, both those that historically faced international criminal law and those that are beginning to follow in modern realities. The latest trends and tendencies are characterized, in particular, regarding the principle of “complimentary” action of the International Criminal Court and the process of “domestication” of international criminal law.
Some of the author’s own considerations regarding the future of international criminal law and the criminal law of the future have been formed and proposed.
Enforced disappearance could be qualified as a crime against humanity. However, international human rights law (IHRL) and international criminal law (ICL) have different definitions of enforced disappearance. It can be reviewed by the different formulations between the 'ICPPED' and the Rome Statute of the 'ICC'. Rome Statute adds several elements to the enforced disappearance definition, such as 'specific intent' by the individual perpetrators, 'temporal element', and 'political organization' as potential actors. And the Pre-Trial Chamber (PTC) III Decision on 'Burundi Situation' (2017) could be a significant reference. By the doctrinal research through statute and conceptual approach, this article concludes that the PTC III Decision reflects the very close relationship between those two different branches of law, as PTC III still refers to IHRL instruments to fill the legal gap in the interpretation of enforced disappearance within the Rome Statute.
Ordering the commission of crimes as a form of individual criminal responsibility in international criminal law dates back to the trials against former German politicians, military officers and administrative personnel after World War II. Most prominently, the provision on criminal liability in Control Council Law No. 10 encompassed ordering liability. Many former SS and Wehrmacht officers were convicted by the U.S. Military Courts in Nuremberg inter alia based on the allegation of having ordered the commission of crimes. This chapter analyses the pertinent judgments of the Nuremberg subsequent trials, as well as certain other cases of the time, to shed light on the requirements and implications of the first instances of the use of ordering liability in international criminal law. The chapter concludes that both decision makers and architects of crimes could be described as having ordered the commission of crimes as it sufficed to exercise authority or authorship with regards to a criminal order. The chapter rejects the idea that a form of indirect perpetration liability was recognized by the U.S. Military Tribunals. It acknowledges that besides ordering liability, other, broader and more indirect, concepts of attribution of responsibility were also practiced by the courts.KeywordsOrderingU.S. Military CourtsNuremberg subsequent trialsControl Council Law No. 10AuthorityAuthorship
This contribution explores the implications of United Nations Security Council (UNSC) referrals under Chapter VII of the Charter of the United Nations to the International Criminal Court (ICC) for the immunity ratione personae of officials of states that are not party to the ICC Statute . While Article 13(b) of the ICC Statute allows the ICC to receive referrals of situations by the UNSC, disagreement remains among authors as to when such a referral removes the customary immunity attached to a head of state of a nonstate party to the ICC Statute. In particular, it remains disputed whether the broad obligation placed on Sudan by UNSC Resolution 1593 (2005) had the implicit effect of doing so. In referring the situation in Darfur (Sudan) to the ICC under Chapter VII of the UN Charter, the UNSC determined that “the government of Sudan, and all other parties to the conflict in Darfur, shall cooperate fully with and provide any necessary assistance to the Court and the prosecutor pursuant to this resolution.”
In this article, I advance a culpability-based justification for command responsibility. Command responsibility has attracted powerful, principled criticisms, particularly that its controversial “should have known” fault standard may breach the culpability principle. Scholars are right to raise such questions, as a negligence-based mode of accessory liability seems to chafe against our analytical constructs. However, I argue, in three steps, that the intuition of justice underlying the doctrine is sound. An upshot of this analysis is that the “should have known” standard in the ICC Statute, rather than being shunned, should be embraced. While Tribunal jurisprudence shied away from criminal negligence due to culpability concerns, I argue that the “should have known” standard actually maps better onto personal culpability than the rival formulations developed by the Tribunals.
El Acuerdo Final de 12 de noviembre de 2016 entre el Gobierno de Colombia y las
FARC-EP para poner fin al conflicto plantea, en la parte relativa al Acuerdo sobre
Víctimas, complejos debates en torno a su adecuación a los estándares internacionales previstos, especialmente al Estatuto de Roma de la Corte Penal Internacional.
El presente ensayo aborda la cuestión relativa a si el Acuerdo es un instrumento
dirigido o no a erradicar la impunidad. Para ello analiza desde el punto de vista
del Derecho internacional qué implica la impunidad, la relación que ésta mantiene
con la justicia transicional y la influencia que la Corte Penal Internacional ejerce en
estos procesos transicionales.
This article compares sentencing of those convicted of participation in the 1994 genocide in Rwanda.With over one million people facing trial, Rwanda constitutes the world’s most comprehensive caseof criminal accountability after genocide and presents an important case study of punishinggenocide. Criminal courts at three different levels— international, domestic, and local—soughtjustice in the aftermath of the violence. In order to compare punishment at each level, we analyze anunprecedented database of sentences given by the ICTR, the Rwandan domestic courts, andRwanda’sGacacacourts. The analysis demonstrates that sentencing varied across the threelevels—ranging from limited time in prison to death sentences. We likewise find that sentencing atthe domestic courts appears to have been comparatively more serious than sentencing at the ICTR
This article explores the 'organizational' or 'organization' criterion for both noninternational armed conflict under international humanitarian law (IHL) and crimes against humanity under international criminal law (ICL) and considers how it affects the ability to address armed violence carried out by armed non-State actors. It considers whether armed groups operating under a non-conventional structure, or outside the IHL framework, fall outside the reach of ICL, thereby constituting a potential security gap. It concludes that it is important to ensure that the organization requirements under IHL and ICL remain distinct to ensure that in situations outside a non-international armed conflict, the law allows for both sides to be prosecuted.
Th e manner of establishing criminal jurisdiction by domestic courts of competent criminal jurisdiction presents the most important aspect of the relation between states and international tribunals. Th e analyses of the jurisprudence of international courts and tribunals pertaining to the principle ne bis in idem has resulted in the conclusion that this principle can be fully understood and applied in conjunction with the principle of complementarity.
International Criminal Law and Justice is a flourishing field, with the birth of new international criminal tribunals and both accountability and investigative mechanisms, increasing and consolidated case law, and burgeoning substantive scholarship. This expansion also left its mark in the international crimes and sentencing dealt with in this new edition. The previous edition has been completely revised and updated. The new edition includes largely extended sections on sexual and gender-based crimes; detailed elaborations on the crime of aggression, including its complicated jurisdictional regime; a reference to a better protection of the environment through the introduction of a crime of ‘ecocide’; an elaboration on the nexus requirement in war crimes and asymmetrical conflicts as well as the commission of war crime against the same party; reference to the newly introduced war crimes of the ICC Statute and of the peculiarities of cyber-attacks, and more. The authors have strived to include all relevant case law up to September 2021, sometimes even beyond.
Bringing Nazi War Criminals in Canada to Justice: A Case Study - Volume 91 - Irwin Cotler
This article uses the recent judgment of the ICJ in Bosnia v. Serbia to highlight the potential problems that arise when international courts have to adjudicate on overlapping situations. It describes the dispute between the ICJ and the ICTY on the appropriate legal standard for the attribution of state responsibility, and finds that the ICJ’s approach in this case suggests that those keen to minimize the fragmentation of international law between adjudicative bodies should not overlook the need for consistency within those bodies. With regard to fact finding, this article raises serious concerns about the manner in which the ICJ relied on the ICTY’s work. The decision of the ICJ not to demand crucial documents from Serbia is discussed and criticized. Based on its approach to fact finding in this case, doubts are raised as to whether the ICJ will ever hold a state responsible for genocide outside the parameters of the prior criminal convictions of individual perpetrators. © 2008, Foundation of the Leiden Journal of International Law. All rights reserved.
On July 6, 2017, Pre-Trial Chamber II of the International Criminal Court (the Court or ICC)—composed of Judges Tarfusser, Perrin de Brichambaut, and Chung—held that South Africa violated the Rome Statute of the ICC (Rome Statute) by failing to arrest and surrender to the Court President Omar Al-Bashir of Sudan when he visited the country in June 2015. However, the Court did not refer the matter to the ICC Assembly of States Parties (ASP) or the United Nations Security Council (UNSC) pursuant to Article 87(7) of the Rome Statute. The decision added South Africa to a list of ICC state parties that have failed in their Rome Statute obligations with respect to the incumbent head of state of Sudan. It also marked the first time that the ICC Office of the Prosecutor (OTP), all ICC states parties, and the United Nations (UN) were invited to present their views and argue fully what is perhaps the most legally contentious and politically sensitive issue that the ICC has faced in its history.
The article examines how states talk about the International Criminal Court (ICC, or the Court) through the lens of Albert Hirschman’s exit, voice and loyalty framework. Based on a content analysis of country statements about the ICC from 2002 to 2016, I show that support for the Court remains high cross-regionally and longitudinally. Exit rhetoric remains low and only recently entered the Court discourse. Exit is moderated by states’ high loyalty to the Court and the underlying individual accountability norm. Voice is used widely as states criticise the Court, but more so the United Nations Security Council and other states for their lack of cooperation. I argue that applying Hirschman’s framework to the Court necessitates a rethinking of exit and voice calculations. The article contributes to our understanding of the ICC by providing a first comprehensive portrait of what states like and dislike about the Court. The findings also challenge common accounts of the Court as the source of ineffectiveness by highlighting the influence of other actors on the Court’s performance. The article adds a discursive dimension to compliance studies, which so far have overwhelmingly focused on state behaviour, including ratification patterns.
The establishment of the Extraordinary African Chambers to try former Chadian President Hissène Habré has been hailed as a novel form of prosecuting international crimes in Africa. The Court’s establishment marked the end of more than two decades of persistent lobbying by a network of victim associations and civil society organisations – a phenomenon that is referred to here as ‘networked justice’. This article shows that the characteristics of a network often determine the reach and outcomes of networked justice at local and international levels. In the case of the Habré trial, the network’s primary goal of setting an international legal precedent through universal jurisdiction defined the tools and strategies chosen to achieve the goal. This article shows how these dynamics were transposed to the trial against Habré and the reparations phase. The take-up of sexual violence at trial is highlighted as one example of networked justice in action. By returning to Chad, this article considers the potential of reparations as a tool for carrying over effects from an internationalised justice process to the domestic level, and concludes with some observations about the possibilities and limitations of networked justice approaches in stimulating processes of transformation and change at the locations where justice demands originated.
In August 2016, in Havana, Cuba, the Colombian Government signed a peace agreement with the Fuerzas Armadas Revolucionarias de Colombia-Ejército del Pueblo , FARC-EP, after four years of negotiations. The agreement provided a window of hope that Colombia's fifty-year armed struggle, the longest-running conflict in Latin America, would finally come to a close. One actor in these negotiations, whose considerable influence has been underappreciated, is the Office of the Prosecutor (OTP) of the International Criminal Court (ICC). Colombia has been under preliminary examination by the OTP since 2004. In addition to discharging its investigatory function, the ICC prosecutor has actively influenced the negotiation of two peace processes: first, the 2005 peace process with the paramilitaries; and more recently, the tumultuous negotiations with the FARC. This Comment explores the specific pathways of the OTP's influence in the Colombian peace process, and the broader lessons this episode holds for the ICC's work and for the continuing negotiations in Colombia.
The happiest outcomes of the work of the International Law Commission (ILC) result when those charged with reporting on a topic elucidate the existing law with maximum objectivity and accuracy and when, where desired, they formulate such possibilities for its avowed progressive development as find a solid basis in emerging practice or international jurisprudence and are unlikely to arouse implacable opposition among members of the Commission or member states of the General Assembly. This history should be foremost in the minds of those presently leading the Commission’s work on the immunity of state officials from foreign criminal jurisdiction as they come next session to report on possible limitations on and exceptions to such immunity. Whether the eventual aim is codification or reform, any consideration of this most controverted and combustible of contemporary questions of international law that is not based on an impartial and convincing assessment of relevant state practice and international case-law and that misreads the political temper of the times will end in tears, in the Commission itself and even more so in the Sixth Committee of the General Assembly.
The Nuremberg principles affirmed by the U.N. General Assembly and formulated by the International Law Commission (ILC) provide that “[t]he fact that a person who committed an act which constitutes a crime under international law acted as Head of State or responsible Government official does not relieve him ( sic ) from responsibility under international law.” Few would dispute this basic principle. More contested is the question of who has authority to impose consequences on individuals for international crimes committed on behalf of states. This is because, if an individual has acted with actual or apparent state authority, imposing consequences on the individual without her state’s consent runs counter to traditional notions of state sovereignty and noninterference.
Nineteen ninety-seven was marked by several important developments at the International Criminal Tribunal for the former Yugoslavia. A series of arrests and voluntary surrenders have increased the Tribunal's workload and credibility. The landmark Tadic judgment has clarified international humanitarian law, particularly with respect to crimes against humanity. The Erdemovic decision considered the defence of duress with respect to the murder of civilians and the use ofguilty pleas in international criminal law. Finally, the Blaskic decision has considered the use of subpoenas in international law. Copyright © The Canadian Council on International Law / Conseil Canadien de Droit International, representing the Board of Editors, Canadian Yearbook of International Law / Comité de Rédaction, Annuaire Canadien de Droit International 1998.
Although safeguards for the individual human right guarantees for protection against double jeopardy are strongly entrenched in international and domestic law as well as widely reflected in State practice, such protection is generally limited in scope and applicability to surrender or extradition procedures. Where criminal offenders face courts of a State after having been prosecuted and punished or acquitted by a court of another State, the absence of transnational non bis in idem protection constitutes a serious lacuna in international human rights law. Although legislative and judicial initiatives are being undertaken – notably under the aegis of the European Union – to remedy this lacuna, the international community must incontestably act upon this need for individuals' protection against abuses of power and breaches of due process through the amendment or complementing of the classical international human rights conventions.
Neither the European Arrest Warrant Framework Decision (EAW FD) nor its predecessors provide clear rules on which authorities retain control over the onward transfer of surrendered suspects. In the West judgment, the Court of Justice resolved this question by limiting the originating state's powers of control in successive surrender proceedings. This article examines onward transfer rules in the EAW FD and preceding European instruments. It considers the ruling in West and its implications for the EU system of surrender. A new right not to be transferred appears to be emerging as a general principle of EU law. If accepted as a general principle, the right not to be transferred will provide genuine added value beyond existing human rights instruments and defence rights legislation.
The inspiration for this article came from a call for amicus curiae briefs issued in April 2016 by the Office of the Co-Investigating Judges in the Extraordinary Chambers in the Courts of Cambodia (ECCC). The call sought guidance on: whether, under customary international law applicable between 1975 and 1979, an attack by a state or organization against members of its own armed forces may amount to an attack directed against a civilian population for the purpose of constituting a crime against humanity under Article 5 of the ECCC Law. We argue that customary international law justifies a finding that an attack on members of the armed forces can constitute crimes against humanity. In particular, the article focuses on the importance placed on the persecution element of crimes against humanity in the post-Second World War jurisprudence, and the broad interpretation of the term ‘civilian’. The article also examines the jurisprudence of contemporary international courts, finding that in some cases the courts have interpreted the term ‘civilian’ as incorporating hors de combat . However, the International Criminal Tribunal for the former Yugoslavia (ICTY) and International Criminal Court (ICC) have moved towards a more restrictive interpretation of the term ‘civilian’, potentially excluding members of the armed forces. We argue that this move is regressive, and against the spirit in which the offence of crimes against humanity was created. The ECCC has an opportunity to counter this restrictive approach, thereby narrowing the protection gap which crimes against humanity were initially created to close.
This article considers the influence of teachings of publicists on the development of international law. The category of 'teachings of publicists' is not a homogeneous one. The article argues that it can be divided into: entities that have been empowered by States to conclude teachings, such as the International Law Commission; expert groups, such as the Institut de Droit International; and 'ordinary' publicists. The teachings of ordinary publicists are also of different types and include digests, treatises, textbooks, monographs, journal articles, and blog posts. Only by breaking down the category into its various types can the influence of the teaching of publicists on the development of international law be properly gauged. Even then, it can prove rather difficult to pin down the notion of 'influence'. Standard assessments of influence focus on the extent to which teachings are cited by courts and tribunals, in particular by the International Court of Justice. However, that approach privileges the role of courts and tribunals in the development of international law and overlooks the role of other actors. As such, the present article offers a different assessment of influence. It identifies the actors that comprise the community of international lawyers and analyses the various interactions that take place between these actors and the teachings of publicists. It is through this interaction, of which citation is but part, that the influence of the teachings of publicists can properly be determined. Copyright
This article offers a U.S. perspective on the creation of the Yugoslav and Rwanda criminal tribunals as each nears its conclusion following more than twenty years of judicial proceedings. During the period in which the tribunals were created, one of us (MJM) was the Acting Legal Adviser or Principal Deputy Legal Adviser of the U.S. Department of State, and the other (DS) was Senior Adviser and Counsel to the U.S. Permanent Representative to the United Nations and was subsequently the first U.S. Ambassador-at-Large for War Crimes Issues. Given the leading role played by the United States in the process of creating the tribunals, we hope that our perspective might help to illuminate the critical issues faced at that time.
Pour qu’un héritage soit réellement grand, il faut que la main du défunt ne se voie pas.
In 2014, a year of memorial ceremonies commemorating the twentieth anniversary of the Rwandan genocide, the International Criminal Tribunal for Rwanda (ICTR) marked its own twentieth year with the launch of a “legacy website.” With the closing of the Tribunal scheduled for December 2015, the question of its legacy had become increasingly pressing. The website premiered a video that “celebrates the accomplishments of the ICTR” in a “visually compelling” style. Blurring the distinction between documentary account and film trailer, the video begins with iconic images of the African continent: a boy rolling a hoop down a dirt road; laborers ferrying wares; women in colorful dresses tending children. These scenes of daily life are interrupted by images of men wielding machetes and corpses, interspersed with the figure of the radio, reminding the viewer that the 1994 genocide was encouraged through broadcasts inciting Hutus to take up arms against their Tutsi neighbors. The video lists the Tribunal’s contributions to international criminal law, but also describes a much broader impact: “a record of legal reform in Rwanda, and outreach, education, legal training, and healing.” Young boys leap into a body of water to punctuate the final term, suggesting the hope of a new Rwanda. The narrator proclaims, “today in Rwanda, it’s safe to listen to the radio again: the sound is of a nation rebuilding.” The film’s final words reach beyond the Rwandan context, affirming that ours is “a world pushing forward despite great imperfection, each day closer to a time when international law offers justice to all people, everywhere.”
A strange thing about the International Criminal Tribunal for the Former Yugoslavia (ICTY) is that for most of its life, it has thought about its death. The Tribunal, of course, kept getting a reprieve. But today it seems more likely than not that the ICTY will indeed close down sometime in 2017, after the conclusion of the two cases it currently has at trial. Yet even after its closure, the ICTY will continue in a sort of un-death, through the unfortunately named Mechanism for International Criminal Tribunals, which will complete retrial and appellate proceedings in the cases currently tried before the ICTY.
We are delighted to participate in this symposium on the legacy of the International Criminal Tribunals for the Former Yugoslavia and for Rwanda (Tribunals; respectively, ICTY and ICTR). We have been asked to offer reflections on the Tribunals’ impact on substantive international criminal law (ICL)—in particular, the definitions of crimes and the modes of liability. Given the enormity of the topic, we can offer only a cursory and impressionist sketch of the terrain, and draw attention to a few intriguing features along the way. We will not attempt to survey the Tribunals’ jurisprudence or the related academic literature. Instead, our aim is simply to highlight three themes underlying the Tribunals’ elaboration of substantive legal standards. For the nonspecialist, this sketch may provide a helpful overview of the evolution of ICL. For the specialist, this sketch may bring into slightly sharper relief some underlying patterns in the Tribunals’ work. We will also offer some broader thoughts about the Tribunals in the overall arc of ICL, and how their structure and priorities have left a lasting, distinctive imprimatur on ICL.
Despite the promises made after World War II to eliminate the commission of atrocities, crimes against humanity persist with horrifying ubiquity. Yet the absence of a consistent definition and uniform interpretation of crimes against humanity has made it difficult to establish the theory underlying such crimes and to prosecute them in particular cases. In the 1990s, several ad hoc international criminal tribunals were established to respond to the commission of atrocity crimes, ¹ including crimes against humanity, in specific regions of the world in conflict. Building on this legacy, in 1998 a new institution—the International Criminal Court(ICC)— was established to take up the task of defining crimes against humanity and other atrocity crimes and preventing and punishing their commission.
Genuine Consent to Sexual Violence Under International Criminal Law - Volume 101 Issue 1 - Wolfgang Schomburg, Ines Peterson
A review of cases from a variety of common law jurisdictions reveals that when evidence has been obtained from abroad for use in domestic criminal proceedings in what would be considered under domestic law as irregular or even unlawful circumstances, a broadly inclusionary approach has been adopted towards the admissibility of that evidence. This has resulted in a lower standard of protection for the defendant in such circumstances, which, it is submitted here, undermines the integrity of the criminal justice system in question.
The International Committee of the Red Cross (ICRC) enjoys a specific legal status and specific privileges and immunities under both international and domestic law. They enable the ICRC to effectively carry out its mandate, and to do so in full conformity with its Fundamental Principles and standard working modalities. This article clarifies the ICRC's particular legal status and explains the rationale, scope and legal sources of its privileges and immunities.
Forgiveness is pitiless. It forgets the victim. It negates the right of the victim to his own life. […] It cultivates sensitiveness toward the murderer at the price of insensitiveness toward the victim […] The face of forgiveness is mild, but how stony to the slaughtered. Cynthia Ozick (1998). There is an imprudent manner of recommending forgiveness to us that rather is a means for making us disgusted with it. Vladimir Jankélévitch (2005). In August 2007, an Iraqi delegation visited Denmark and a hearing was held in the Danish Parliament. The topic was the role of religion in relation to reconciliation in Iraq and the delegation was led by the Anglican vicar Andrew White who has for some years been involved in peace-work in Iraq and the Middle East. The hearing was plagued by the usual problems of simultaneous translation and minds, or maybe just mine, started to drift. Yet, near the end, a member of the audience asked the panel to elaborate their perspectives on Desmond Tutu's famous statement that, as one speaker put it, “there can be no future without reconciliation.” Of course, what Tutu has written and proclaimed on numerous occasions is something different and more controversial, namely that there can be no future without forgiveness (Tutu, 1999). What was interesting to me was not the misquotation as such, but the fact that the topic of forgiveness had not been mentioned a single time during the hearing – not even by the vicar, who otherwise jested and spoke in ways reminiscent of the charismatic performances of his much more well-known Anglican fellow. […]
Throughout modern history, there have only been three internationally established commissions to investigate war crimes and prepare for eventual prosecutions before international and national judicial bodies: the 1919 Commission on the Responsibilities of the Authors of the War and on Enforcement of Penalties for Violations of the Laws and Customs of War (1919 Commission), the 1943 United Nations War Crimes Commission (UNWCC), and the Commission of Experts established pursuant to Security Council Resolution 780 (1992) to investigate violations of international humanitarian law in the former Yugoslavia (Commission of Experts). Even though there are no connections among the three bodies, there is enough historical precedential value in the first two as the antecedents of the Commission of Experts to warrant a brief examination.
This article considers the law of head of State immunity through an analysis of the indictment of Sudanese President Omar
al-Bashir by the International Criminal Court (ICC). Contrary to most commentaries, this essay argues that al-Bashir remains
protected by head of State immunity, and that ICC jurisdiction over him can only be maintained through one of two controversial
claims: either that the Security Council can override customary international law rules of treaties and immunities, or that
the law of immunities already provides an exception that invalidates al-Bashir's protection. This article provides a detailed
explanation of why both propositions are unsustainable and require considerable revision of public international law. While
the desire to prosecute al-Bashir is understandable, the ICC's legal arguments actually threaten the Court's ability to protect
victims by alienating some States Parties and prompting those States and others to reduce co-operation with the Court. It
concludes by suggesting that the Court's arguments represent a problematic assertion of its position as an institution of
global governance.
At its forty-fifth session in 1993, the International Law Commission took note of the report of a working group containing a Draft Statute for an International Criminal Tribunal, and transmitted that report to the General Assembly for comment. This is the second stage in a process that began in 1992, when the Commission established a Working Group on an International Criminal Court, which laid down the basic parameters for a draft statute. Its general approach was endorsed by the Commission and subsequently by the General Assembly. The Draft Statute adopted by the working group in 1993 gives effect to that approach, although with a number of refinements and much added detail. The third stage of the process is intended to occur in 1994, when the Commission hopes to adopt a final version of the Draft Statute, taking into account comments made on it at the General Assembly and elsewhere. The purpose of this Note is to outline the provisions of the Draft Statute, in the hope of furthering understanding and discussion of its provisions.
Impeding humanitarian access and the starving of civilians is prohibited under international humanitarian law in times of both international and non-international armed conflicts. Such conduct is criminalised under the Rome Statute of the International Criminal Court (ICC Statute) when committed during an international armed conflict. However, without good reason, it is not a war crime when committed during a non-international armed conflict. Contemporary conflicts, such as that in Syria, show that this is a problematic omission. This article addresses the challenges in prosecuting the denial of humanitarian access during international armed conflicts and examines the options to prosecute before the International Criminal Court such denial in times of non-international armed conflict as other war crimes, crimes against humanity, and genocide. The author concludes that these options would not suffice and proposes to add to the ICC Statute the starvation of the civilian population, including through impeding humanitarian access, as a war crime for non-international armed conflicts.
The International Criminal Court (ICC) was officially opened in The Hague on March 11, 2003, in a special ceremony attended by Queen Beatrix of the Netherlands and United Nations secretary-general Kofi Annan. Less than four years after the historic breakthrough by the Diplomatic Conference of Plenipotentiaries in Rome on July 17, 1998, the Statute of the ICC had entered into force on July 1, 2002. The required number of sixty ratifications, which is laid down in Article 126, paragraph 1 of the Rome Statute, was reached much faster than for other comparable multilateral treaties and faster than had been expected by the global public. Secretary-General Annan attracted widespread attention when he observed that July 1, 2002, was a decisive landmark in breaking with the cynical worldview of people like Joseph Stalin, who is alleged to have remarked that while “a single death is a tragedy, a million deaths is a statistic.”
Central to claims made for the long “Consensus Definition” of aggression now embodied in UN General Assembly Resolution 3314, is that it has “accomplished its main purpose of depriving a potential aggressor of the possibility of using juridical loopholes and pretexts to unleash aggression.” To this Soviet theme the Senegalese representative added the prophecy that “there would no longer be any loopholes in international law of which an aggressor could take advantage.”
On 29 August 2013, the UK government published a memorandum setting out its ‘position regarding the legality of military action in Syria following the chemical weapons attack in Eastern Damascus on 21 August 2013’. While other States had contemplated some form of military action, most notably the US, none had been as clear and candid as to the legal basis upon which this would be launched. It might seem in this respect perhaps a little surprising that the UK decided in its relatively brief opinion that ‘the legal basis for military action would be humanitarian intervention’. As this article will attempt to highlight, this basic justification is far from uncontroversial. This short article will seek to be clear as to what the UK's legal position exactly was, whether and how this position can be reconciled with the lex lata governing the use of force for humanitarian purposes and its immediate impact upon it, and finally offer some reflections upon the contribution the opinion and its central legal argument has made to future legal argumentation in this area.
Within the span of only a few months in 1999, the United Nations was faced with one of the greatest challenges in its recent history: to serve as an interim government in Kosovo and East Timor.
In Kosovo, in response to massive attacks on the Kosovar Albanian population, including orchestrated and wide-scale “ethnic cleansing,” the North Atlantic Treaty Organization (NATO) conducted an eleven-week air campaign against Yugoslav and Serbian security forces and paramilitary groups. The campaign resulted in the agreement of the Federal Republic of Yugoslavia to withdraw all Yugoslav and Serbian security forces from the territory. On June 10,1999, one day after the suspension of NATO’s air strikes, the United Nations Security Council adopted Resolution 1244 (1999), establishing the United Nations Interim Administration in Kosovo (UNMIK).