Accountability For International Crimes Research Articles

Beyond rhetoric: Interrogating the Eurocentric critique of international criminal law’s selectivity in the wake of the 2022 Ukraine invasion

AbstractRussia’s full-blown invasion of Ukraine has reinvigorated the debate over international criminal law’s selectivity. While many have welcomed the renewed interest in accountability for international crimes in the wake of the ‘Ukraine moment’, others have emphasized double standards in the enforcement of international criminal law, including a lack of accountability for Western violations and disproportionate attention to European victims. This article interrogates the master narratives about international criminal law’s post-Ukraine selectivity and complicates accusations of bias by emphasizing Ukraine’s liminal status in the global order and the cross-border nature of aggression as an explanatory factor for differentiated responses from states. It suggests that concerns about an invidious ‘Ukraine effect’ on international criminal law enforcement are less persuasive after the International Criminal Court’s decade-long conflict with the African Union, and that a decentring of investigations to Eurasia should be construed not only as a moment of soul-searching but also as a welcome opportunity to rebalance the scales of justice. The article encourages international criminal law stakeholders to move beyond critique that unwittingly essentializes Eurocentric assumptions and to devise a more compelling vision of global criminal law enforcement that challenges crimes and inequalities both between and within states.

MODEL OF RESPONSIBILITY FOR INTERNATIONAL CRIMES IN THE LAW OF THE DEMOCRATIC REPUBLIC OF THE CONGO

This article deals with accountability for international crimes in the law of the Democratic Republic of the Congo.

The Accountability for International Crimes Perpetrated by Children

The issue of accountability for international crimes committed by children is one of the most complex legal and moral conundrums in international criminal justice. While children are excluded from the jurisdiction of international criminal courts, they can be sometimes the authors of heinous crimes, including international crimes. In the first section, the author examines whether prosecution at national level may be a solution in these cases. He then discusses if a minimum age of criminal responsibility should be agreed at international level and, if so, what this age should be. The issue of whether child soldiers possess the necessary mens rea for the commission of international crimes is also discussed. In the final section, the author suggests that more emphasis should be put on the accountability of those who use children to commit these crimes, notably through the legal concept of indirect participation, included in the icc Statute.

The Dominant Role of Commanders in the Sudanese Military Justice System and Accountability for International Crimes

Members of national defence forces are increasingly being implicated in the commission of international crimes. In Sudan, for example, reports indicate that members of the Sudanese Armed Force (SAF) are responsible for a wide range of international crimes in respect of the Darfur war. In 2007, Sudan amended the Armed Forces Act by, inter alia, criminalising international crimes. The explicit criminalisation of international crimes is commendable as it provides a legal basis for holding members of the SAF to account for the international crimes allegedly committed. The question left unresolved, however, is whether, given the dominant role of commanders in the Sudanese military justice system, it is feasible to hold commanders of the SAF to account. By critically analysing selected aspects of Sudan's Armed Forces Act, this article argues that the dominant role of commanders in Sudan's military justice system makes holding commanders to account unviable at the national level. The article, however, questions whether making reforms to the dominant role of commanders would create lasting solutions to this accountability gap. Could, perhaps, the dominant role of commanders create an entry point for other forums such as the International Criminal Court (ICC) to hold commanders to account, on the basis of the principle of command responsibility?

The Curious Case of Colonel Kumar Lama: Its Origins and Impact in Nepal and the United Kingdom, and Its Contribution to the Discourse on Universal Jurisdiction

This paper, in essence, is a case study of Colonel Kumar Lama, marking almost a year since his acquittal, 6 September 2016. The prosecution for alleged acts of torture committed in Nepal was brought in the UK courts, under universal jurisdiction, against Kumar Lama: a Nepalese army officer. However, Lama was acquitted due to a hung jury and the Crown Prosecution Services' decision not to retry the case. The case thus far has not been the subject of detailed academic study, perhaps due to the lack of information available in public as the trial transcript is not published. Nonetheless, it represents one of the few instances of the use of this jurisdictional basis before the UK courts; its analysis will therefore provide important insights into the practical limits of universal jurisdiction. The present work adopts a socio-legal approach in uncovering the origins of the Lama case and exploring its diverse effects in Nepal and the UK. This in turn facilitates a discussion of its wide-ranging contribution to the discourse on universal jurisdiction. The empirical research undertaken, semi-structured interviews, allows this paper to communicate valuable opinions gathered from those involved in the case, organisations and lawyers, as well as high-ranking state officials and army officers in Nepal with thought-provoking perspectives on the impact achieved by this case. The case had more to it than meets the eye. If one goes on media reports only, a certain opinion would be reached. A deeper analysis of the case revealed a different conclusion. This research discovered that the Lama case played a vital role in raising awareness in Nepal and triggered legal and practical responses towards strengthening its transitional justice process. Above all, it allowed the victims' painful stories to be heard which reawakened their hope towards justice. The case also revealed the strategy behind the litigation in the UK and the practical hurdles encountered, which helped construct informed suggestions, such as creating specialised units, for more effective litigation of universal jurisdiction cases in the future. An important line of criticism of international law was deduced from some interviews in Nepal, backed up by scholarly critique, which contributes to the bigger picture of comprehending universal jurisdiction in practice. Overall, the current developments and the practical improvements identified indicates a relatively positive future direction of universal jurisdiction as a tool to ensure accountability for international crimes. A reflection on its landmark cases revealed that it takes decades of perseverance by transnational actors globally for such cases to succeed in court. This leads the paper to conclude that while universal jurisdiction may be a commendable legal principle, it is often overwhelmed by practical and political interruptions which need to be tackled carefully and collectively.

The Nairobi Principles on Accountability as a means of monitoring and enforcing the rule of law and accountability for international crimes in Africa

The Nairobi Principles on Accountability as a means of monitoring and enforcing the rule of law and accountability for international crimes in Africa

“Revolution is glorious! Revolution is no crime!” International Crimes and Chinese Domestic Law, and the Gang of Four Trial

China was active in the drafting of the Rome Statute of the International Criminal Court, but has not become a state party, and the Chinese relationship with international criminal law is not strong. Given this, an examination of China’s own abilities and actions with regard to accountability for international crimes is warranted. China does not have any legislation proscribing violations of international humanitarian law, or war crimes, genocide, or crimes against humanity. This article will examine some of the options under current Chinese Criminal Law of 1997 that could be used to prosecute international crimes in lieu of express provisions. The second part of the article undertakes an international criminal law and human rights analysis of the Gang of Four trial, as the only trial of leaders linked to the mass crimes of the Cultural Revolution and thus the only real example of an attempt at accountability for mass crimes in modern China. These two parts of the article combine together to provide an analysis of China’s ability to enact and attempts at accountability for international crimes committed in China.

Complementarity’s Monopoly on Justice in Uganda: The International Criminal Court, Victims and Thomas Kwoyelo

Complementarity has been extolled as the pioneering way for the International Criminal Court (icc) to navigate the difficulties of state sovereignty when investigating and prosecuting international crimes. Victims have often been held up to justify and legitimise the work of the icc and states complementing the Court through domestic processes. This article examines how Uganda has developed its laws, legal procedure, and accountability for international crimes over the past decade. This has culminated in the trial of Thomas Kwoyelo, which after five years of proceedings, has yet to move to the trial phase, due to the issue of an amnesty. While there has been a profusion of provisions to allow victims to participate, avail of protection measures and reparations, in practice very little has changed for them. This article highlights the dangers of complementarity being the sole solution to protracted conflicts, in particular the realisation of victims’ rights.

Accountability for International Crimes within Insurgent Groups

In Syria, dozens of women and men are held in unofficial ‘prisons’ run by some of the armed groups fighting ISIS or the Syrian Government. The detainees are accused of a variety of offenses, including war crimes, and wait to be tried by one of the several, competing courts established by different groups. Some courts are presided by former judges and others by clerics or military leaders. They apply anything from a “Unified Arab Criminal Code” prepared by the Arab League, to the judge’s own personal interpretation of the Sharia. Trials are quick, and punishment is often death. In a similar fashion, in the rebel-held part of Ukraine, two men were accused of sexual assault and tried by the ‘First People’s Court’ established by pro-Russian insurgents. On the basis of a public vote in the town hall at the conclusion of a ‘trial’, one man was condemned to death by firing squad, the other to serve on the front line to “redeem his honour in combat”. This mirrors the practice of insurgents in other wars in Sri Lanka, El Salvador, Nepal, Sierra Leone, Colombia, Rwanda, Congo, Sudan, Kosovo, and many other places where irregular tribunals were created.What are the reasons that push a non-state armed group to establish a court that ostensibly includes within its jurisdiction the sanction of violations of international humanitarian law? Can it be said of insurgent groups that they have a self-interest in ensuring accountability of their members, in a manner that parallels what has been suggested with respect to the armed forces of the state? There are at least four related but distinct bundles of questions that arise from a consideration of the practice of insurgent courts in the context of an armed conflict. First, are there legal standards that explicitly or implicitly legitimize or prohibit the establishment of courts by an armed non-state actor? Second, if such courts could be lawfully created, what are the conditions required under international law for them to exercise their jurisdiction validly? Third, if an insurgent court is lawfully created and has exercised its jurisdiction in compliance with international law, what recognition is to be accorded to its judgments? And fourth, what does this reflection on the possibility and conditions of insurgent justice tell us about our conception of the rule of law and, more broadly, the concept of law? These are vast and complex questions that call for a detailed exploration of existing international legal standards spanning international humanitarian law, international criminal law, international human rights law, and general public international law. What’s more, in order to offer a meaningful critique of the suggestion of insurgent justice, the study must be grounded in a fair appreciation of the reality of the practice of non-state armed groups in this respect, something on which little research has been systematically carried out. As a result, this essay will not seek to offer answers to all these complex questions, much less to the overall legality of insurgent justice, but rather will attempt to map as comprehensively as possible the questions that must be explored in each of the four bundle of issues identified in the previous paragraph.

Prosecuting International Crimes in Kenyan Courts?

This paper offers a case study of domestic prosecution of international crimes, focusing on describing attempts made in Kenya to create a legal and institutional framework for such prosecutions. The paper takes the starting point in analyzing Kenya’s International Crimes Act, which domesticates the Rome Statute, and the proposed International and Organised Crimes Division. While the establishment of a specialized division of the Kenyan High Court to prosecute international crimes has been lauded by many as an important step towards promoting accountability for international crimes, the paper argues that there are significant challenges giving effect to the principle of complementarity in Kenya, including lack of investigatory and prosecutorial capacity; challenges relating to the protection of witnesses and victims; and more broadly lack of political will to prosecute the perpetrators of international crimes, particularly those committed in the context of the 2007/8 post-election violence. Importantly, as will be shown in this paper, the debate over creating a national mechanism to prosecute Rome Statute crimes cannot be separated from developments relating to the Kenyan International Criminal Court cases, including the Government’s attempts to end or undermine this process.

Central America, the Inter-American System, and Accountability for International Crimes

Central America is a hard case for proving the existence of a “justice cascade, that is, a strong tendency towards increased accountability for gross human rights violations. Despite having the largest numbers of Latin American victims of the repression and internal armed conflicts of the 1970s and 1980s, El Salvador and Guatemala are among the places where it has been most difficult for a consistent accountability norm to take root. So it was particularly noteworthy that in January 2012 a Guatemalan judge indicted the country’s former strongman, ex-General Efrain Rios Montt, on charges of genocide and crimes against humanity. Rios Montt joins several other high-ranking former officers in the dock, while a number of lower-ranked soldiers have been sentenced to long prison terms for their role in massacres and disappearances. This book chapter discusses the evolution of the accountability norm in Guatemala, from almost total impunity to the filing of genocide charges. It considers in particular the key role of the Inter-American system in helping define and push forward that evolution. The article then briefly compares the Guatemalan case to events in El Salvador, and then draws some tentative conclusions.

The Iraqi High Criminal Court: controversy and contributions

The Iraqi High Criminal Court established to prosecute Saddam Hussein and other leading Ba'athists is one of the most visible of the current efforts to establish criminal accountability for violations of international norms. Juxtaposed against other tribunals, the High Criminal Court has provoked worldwide debate over its processes and its prospects for returning societal stability founded on respect for human rights and the rule of law to Iraq. This article explores in detail the legal basis for the formation of the High Criminal Court under the law of occupation. It addresses the relationship between the Iraqi model of prosecuting crimes in domestic fora incorporating international law and the alternative model of transferring jurisdiction to an international forum. The controversial aspects of the Iraqi model are considered, such as the legitimacy of its creation, the revocation of official immunity, the procedural fairness of the Statute in the light of international norms, and the substantive coverage of what some have termed an internationalized domestic process. The author concludes that accountability for international crimes is one of the unifying themes that should bind humanity in common purpose with the Iraqi jurists as they pursue justice in accordance with international norms.

The Iraqi High Criminal Court: Controversy and Contributions

The Iraqi High Criminal Court established to prosecute Saddam Hussein and other leading Ba'athists is one of the most visible of the current efforts to establish criminal accountability for violations of international norms. Juxtaposed against other tribunals, the High Criminal Court has provoked worldwide debate over its processes and its prospects for returning societal stability founded on respect for human rights and the rule of law to Iraq. This article explores in detail the legal basis for the formation of the High Criminal Court under the law of occupation. It addresses the relationship between the Iraqi model of prosecuting crimes in domestic fora incorporating international law and the alternative model of transferring jurisdiction to an international forum. The controversial aspects of the Iraqi model are considered, such as the legitimacy of its creation, the revocation of official immunity, the procedural fairness of the Statute in the light of international norms, and the substantive coverage of what some have termed an internationalized domestic process. The author concludes that accountability for international crimes is one of the unifying themes that should bind humanity in common purpose with the Iraqi jurists as they pursue justice in accordance with international norms.

Accountability for international crimes: From conjecture to reality

A t a 1987 international colloquium devoted to the Nuremberg trials Professor Eric David posed a hypothetical question — could Augusto Pinochet be arrested and tried in Belgium for acts such as enforced disappearances, extrajudicial executions, torture and unlawful detention committed since his ascendance to power?1 While Professor David answered in the affirmative,2 at the time it was only academic conjecture that such a scenario could ever come to pass. And yet, just over a decade later, his hypothetical question proved to be prescient. Augusto Pinochet was arrested in the United Kingdom, whose highest court eventually ruled that he did not enjoy immunity from legal process for torture and conspiracy to commit torture perpetrated while he was in office.3 It was a defining moment in the fight against impunity and perhaps the most important milestone in the struggle for international justice since the Nuremberg trials. The proceedings against Pinochet did not, however, come out of the blue. Ever since the end of the Cold War and the resulting new impetus in international relations, the international community had been setting important markers in the fight against impunity.The trend only accelerated after the Pinochet case, allowing the fullfledged emergence of what can now be called a global movement

Accounting for Crimes: The Role of International Criminal Tribunals in Effectively Addressing Impunity

In this paper, the author examines the ways in which accountability for international crimes could become a practical reality. She takes the position that "impunity" is inimical both to justice, and to lasting peace and democracy in post-conflict societies and proposes a conceptual framework for the international rule of law as an alternative. She also argues that a strong, independent and permanent International Criminal Court (ICC) would ensure the kind of universal enforcement of international law that will lead to a progressive, long-term reduction of human rights violations.