Commission Of International Crimes Research Articles

The principle of international cooperation in modern international relations

The article examines the mechanism of action and implementation of the principle of international cooperation in modern international relations against the background of the European integration of Ukraine and the strengthening of the sphere of security and defense. The content and legal and organizational foundations of the principle of international cooperation are analyzed. Trends in the implementation of the principle of international cooperation against the background of the European integration of Ukraine and the strengthening of the sphere of security and defense have been studied. The opinion is argued that international organizations, due to their nature and external factors, do not always act as effective moderators of international cooperation. Aggression against Ukraine exposed a number of fundamental problems related, in particular, to the responsible attitude to the observance of the principles of international law and the consequences for their violators. The essence of the principle of international cooperation has changed, when preference is given not to universal elements of the system of collective security, but to direct contacts with the member states of the UN, EU, NATO, and other alliances, which allows to effectively solve urgent issues in the field of security and defense. It is proven that one of the trends in the implementation of the principle of international cooperation is the strengthening of the institution of responsibility and the binding factor against the background of efforts to establish the right of the strong in international practice by some member states of the UN. Aggressive actions of Russia, the discrediting of the norms of international law, the commission of international crimes on the territory of Ukraine and other factors encourage us to once again turn to the problem of the introduction of binding (sanction) components in interstate relations. On the agenda of the international community are issues of reorganization of the system of collective security, strengthening of the institution of responsibility, creation of effective mechanisms for limiting countries that violate the principles of international law. Without the application of the principle of international cooperation, including at the regional and local level, it will be extremely problematic to solve these extremely complex issues.

Data-driven Learning Systems and the Commission of International Crimes

Abstract Current discussions on the military use of artificial intelligence (AI), in particular concerning autonomous weapons systems, have largely focused on the challenges for the attribution of individual criminal responsibility for war crimes whenever such systems do not perform as initially intended by human operators. Yet, recent observations evidence the pressing need to shift the discussion on the responsibility gap further to include challenges raised by the intentional use of AI systems for the commission of war crimes and other international crimes. Additionally, the increasing development and use of AI systems, based on data-driven learning (DDL) methods, demands particular attention due to the difficulty these systems’ lack of predictability and explainability poses in terms of anticipation of their effects. Against this background, this article complements the present discussion on the responsibility gap by discussing some concerns that the intentional use of DDL systems for the commission of international crimes raises regarding the required mental element and thus, the ascription of individual criminal responsibility. Ultimately, this article proposes preliminary avenues to address these concerns.

Expropriation and other forms of reparation in terms of compensation for damage caused as a result of war crimes: International legal experience

As a result of international armed conflicts, questions always arise about the payment of post-war reparations. Although the process of reparation for damages caused as a result of war crimes, in most cases, begins only after the end of such a conflict, its duration and effectiveness depend on the preliminary analysis and choice of an existing reparation or development of a new model. The purpose of the work was the analysis of existing mechanisms for the payment of post-war reparations, and the search for the most effective models of compensation for Ukraine by Russia for the damage caused as a result of military aggression and the commission of international crimes. The dialectical, systemic-structural, historical, comparative, logical-formal, comparative-legal and systemic-functional methods were used. In the results, the legal nature and historical mechanisms of reparation of damage are explained, as well as problematic issues of this institution of the law of international liability are outlined. In the conclusions, different mechanisms of reparation that can be used by the State and those available to individuals, victims of violations of international crimes committed on their territory and mixed models are considered.

Legal Regulation of Crimes Threatening Global Security

The authors consider methods of legal regulation of crimes and types of international cooperation in the fight against them. The paper also highlights international measures aimed at implementing antiterrorist cooperation and combating illegal drug trafficking. The main goal is to determine the legal mechanisms for the prevention of these socially dangerous phenomena both at the local and interstate levels. The object of the research is the social relations that develop in connection with and about the peculiarities of crimes that infringe on international security. The subject of the research is the norms of modern Russian criminal law and the norms of international law. The scientific works of the authors listed in the references represent a solid theoretical and methodological basis for this research. However, research into the features of crimes should continue, since not all problematic issues in this area have been resolved. The author examines the concept, content and general features of international crimes that infringe on international security; defines the role of the UN (United Nations) and other organizations engaged in international legal regulation in the fight against international crimes; defines the features of the interstate organizations activities to prevent terrorism and illicit trafficking in narcotic and psychotropic substances. It is concluded that terrorism and illicit drug trafficking are most widespread among international crimes. The authors draw conclusions on the need to perform preventive activities aimed at preventing the Commission of international crimes, as well as on the implementation of a direct fight against such crimes through «detection, prevention, suppression, disclosure and investigation». Summarizing the authors’ points of view on the subject of criminal liability for acts of terrorism and drug trafficking, it should be noted that restraint measures, as well as strengthening responsibility measures, should be preceded by a set of preventive measures. It should also be understood that the effectiveness of anti-terrorist and anti-drug policies in the world, including in terms of the regulation of criminal liability measures, should be supported and approved by the population. To improve the legal structures of crimes that infringe on international security in the countries of the world community, it is necessary to positively perceive the international experience of various states in regulating measures of criminal responsibility and countering the spread of these acts.

The Case of Female Perpetrators of International Crimes: Exploratory Insights and New Research Directions

Abstract Although conflicts are often considered to be an exclusively male domain, historical records of conflicts throughout the 20th century show that women also actively participate in warfare – not only as peace activists, humanitarian workers, health care providers, politicians and soldiers but also as perpetrators of crimes. Nevertheless, the participation of women in the commission of international crimes, such as war crimes, crimes against humanity and genocide, has long been considered an anomaly that falls beyond the ‘normal’ scope of conflict-related criminality. Consequently, this topic has been deemed marginal in scholarly circles and, until recently, has remained significantly under-researched. This article contributes to the existing research by presenting an original analysis of the characteristics of conflict-related criminality among women and of criminal prosecutions of female perpetrators of international crimes in modern conflicts, primarily focusing on World War II, and the wars in Bosnia and Herzegovina and Croatia. It further offers a first systematic overview and analysis of domestic trials of women prosecuted for international crimes before the courts in Bosnia and Herzegovina, Croatia and Serbia.

Exploring the International Criminal Court’s Deterrent Potential

Abstract Despite proclamations that the International Criminal Court (ICC) will deter the commission of international crimes, empirical support for such a proposition is mixed and there is much that is still unknown about the ICC’s deterrent potential. In this article, I add to knowledge on the ICC and deterrence with a case study of the ICC’s impact on government decision-making in Australia. Through a thematic analysis of Australian parliamentary records, I explore four instances where the potential for prosecution at the ICC was raised because of a government decision or policy, with a focus on the possibility of Australian politicians being prosecuted concerning Australia’s refugee policy. The fact that the risk of prosecution at the ICC was raised in parliamentary debates suggests that the ICC is capable of featuring in government decision-making and thus could have a deterrent effect. However, with respect to Australia’s refugee policy, the risk of prosecution at the ICC was outweighed by domestic political considerations, and hence this study found that the ICC had little to no deterrent effect on the government in that case. The perceived uncertainty of ICC prosecution was a key factor hindering the ICC’s potential for deterrence, and I suggest that this could have a flow-on effect, hindering the potential for extralegal sanctions to produce any deterrent effect and additionally undermining attempts at positive complementarity. For the ICC to realize its deterrent potential, the perceived certainty of prosecution must be increased.

Handling Facebook: social media in the light of human rights violations

International justice does not remain on the sidelines from the intensive development of social media: the data stored on the social media possesses great evidentiary value in international courts. The dispute over the disclosure of information by Facebook for use in the Gambia v. Myanmar dispute before the International Court of Justice raises a broader issue of the international legal status of telecommunications companies, obligations of companies and states in relation to the use of social media for human rights violations and commission of international crimes. The article assesses the existing international legal regime of human rights obligations of global social media corporations, as well as their role in administration of international justice, by examining the case of the use of Facebook disseminating hate speech and inciting violence against the discriminated group of Rohingya in Myanmar. The authors analyze the report of the Independent International Fact-Finding Mission on Myanmar, Facebook’s reaction to the information of its influence on the situation with Rohingya, and measures taken by the company to reduce the negative impact of its business activity on human rights. The article draws attention to the inconsistent position of Facebook with regard to facilitating the investigation of violations of international law committed through the social media. In particular, the authors comment on the dispute between the Gambia and Facebook before the U.S. Courts arising from the request on disclosure of materials forming evidence in the case of the Gambia v. Myanmar, and lack of action from the US with respect to human rights violations and genocide committed with resources of the US-based social media company. The authors underscore the uncertainty of international legal regulation that impedes effective international investigations of serious human rights violations. Non-state actors remain outside the reach of international justice and international accountability mechanisms, especially when they operate in jurisdictions of states that ignore their positive human rights obligations. The authors conclude that it is necessary to develop effective mechanisms for cooperation and accountability of social media corporations in the field of international justice, as they play an increasing role in the investigation of serious violations of human rights.

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 Evolution of International Criminal Tribunals

International criminal justice is a relatively new and uniquely distinct system of criminal justice. It combines international law and criminal law from various legal systems. Historically, international law applied only to States; however, it is now applied to individuals through its merging with criminal law. The majority of States have been genuinely unwilling or unable to prosecute those most responsible for the planning and commission of international crimes. This lack of genuine willingness to prosecute perpetrators of genocide, war crimes, and crimes against humanity has resulted in the recent creation of multiple international criminal tribunals. The emergence of international and quasi-international criminal tribunals should not reflect the assumption that the idea of such courts is new. On the contrary, the idea and discussions for creating international criminal tribunals have been with us for well over a century. This article traces the evolution of international criminal tribunals starting from 1864. Each major debate to establish an international criminal tribunal is closely analyzed. The article concludes with analysis of the International Criminal Court.

The Missed Italian Nuremberg: The History of an Internationally-Sponsored Amnesty

In the aftermath of the Nuremberg and Tokyo trials, most international lawyers focused on their importance and legacy. Although the legal and moral value of the two major trials against the (surviving) members of the Axis Alliance appears indisputable, their success runs parallel with the almost untold story of the decision to conceal the responsibilities of the Italian forces. In October 1943, the Allied leaders had established the United Nations War Crimes Commission, an independent body tasked with investigating and recording the evidence of war crimes, and identifying where possible the individuals responsible; and reporting to the Governments concerned, when there was prima facie case for the prosecution of those individuals. Indeed, by March 1948 the Commission identified and listed more than 1,200 Italian nationals, who could have been held accountable for heinous war crimes, and in particular those committed on the territories of Ethiopia and Yugoslavia. On 1 November 1943 the Big Three (UK, USA and USSR) had also adopted the Moscow Declaration, agreeing that Italian war criminals had to be brought to justice. This proposition would be broadened by the Treaty of Peace with Italy, signed in February 1947, which Article 45 established that Italy should have arrested and surrendered for trial the persons accused of having committed, ordered, or abetted war crimes and crimes against peace or humanity by any Allied or Associated Power (including Ethiopia, since under Article 38 this provision would be applicable to all acts entailing the responsibility of Italy or Italian national towards it, from 3 October 1935).Despite these initiatives, apart from the 40 trials the British conducted in Italy immediately after the end of the conflict, no Italian would be held accountable for the commission of international crimes. In fact, since 1944 the Italian governments put in place diversionary strategies, with the effect of obstructing the enforcement of the obligations undertaken – and eventually the execution of the arrest warrants issued against Italian individuals. These strategies would never succeed, if at the same time the Italian governments hadn’t made significant efforts to build strong ties with the Allies (and in particular USA and UK) and to “reposition” the country. As a result, while on the one hand Italy was authorized to submit charges to the UNWCC (thus being recognized also as a victim of war crimes), to establish a national Commission of Inquiry to assess the charges brought by Yugoslavia (with the declared task of identifying the individuals to be brought to justice), and to adopt a generalized amnesty aimed at “pacifying the country”; on the other, its counterparts, and in particular Yugoslavia and Ethiopia, were actively discouraged from requesting the execution of the arrest warrants issued against Italian high officers, including Marshal Badoglio, who had been entrusted in September 1943 with creating a first post-Fascist government together with King Victor Emmanuel III.To sum up, the main proposition of this paper is that the missed prosecution of Italian alleged war criminals represents a debacle of the international community, for three main reasons. First of all, because the members of the international community, and in particular the Great Powers, were directly responsible for the non-enforcement of the new-born international criminal law, and in particular of the obligations undertaken by Italy between 1943 and 1947. Secondly, because for reasons of expediency, the victims of the crimes committed by Italy, and in particular Ethiopians and Yugoslavs, have never been provided with the same kind of justice which was granted to the victims of the other two members of the Axis.Lastly, because by granting a de facto amnesty to the individuals identified by the UNWCC as the most responsible for the crimes, the international community also paved the way for the adoption by the De Gasperi government of a generalized, de iure amnesty (the so-called “Togliatti Amnesty”), by which Italy “condoned” the crimes committed by Fascists and collaborators on the national territory. The combination of these initiatives would finally result in a “collective amnesia”, which constitutes a second victimization of the victims of those crimes, both at the national and international level.

Individualizing State Responsibility: Concurrent Attribution and Legal Consequences

This paper provides and overview of the overlaps between individual and State responsibility under international law. It determines how both regimes interact and support the concurrent attribution of responsibility to both the individual and the State for the commission of international crimes. On the basis of this premise, it is argued that the prosecution of individuals for the commission of international crimes requires concomitant adjustments to the legal consequences of responsibility allocated to the State. To that end, three propositions are put forward. First, that individual responsibility dilutes part of the utility of the remedies available under State responsibility. Secondly, that awards of compensation must be coherent and assess the effective ability of the State to redress the victims of international crimes. Thirdly, that such redress must take into account the parallel development of victims’ reparation before the ICC, requiring a new coordination of responsibilities and its potential individualization.

Responsibility to recommend: the role of the UN General Assembly in the maintenance of international peace and security

The international community's failure to respond to the large-scale commission of international crimes points to an abiding flaw in the United Nations (UN) system, namely the inability or unwillingness of the Security Council's permanent members to act in response to such atrocities. This article focuses on the problematic confluence of international governance and humanitarian response. Specifically, it analyses two major efforts to address these issues and their possible interaction. First, the ‘Uniting for Peace’ Resolution (U4P), which provides that where the Security Council is unable to act due to a veto, the General Assembly can make recommendations for collective measures, including the use of force, in a situation of a breach of international peace and security or aggression. Second, the ‘Responsibility to Protect’ (R2P), encompassing the notion that if a state is manifestly failing to protect its citizens, the international community may, where necessary, take forceful action to protect those affected. This article argues that the UN embodies a system of collective security and that when the necessity of intervention to halt atrocities is defeated by a Security Council veto resulting in a governance vacuum, the U4P Resolution affords the Assembly a mechanism to recommend measures under the third pillar of R2P. Although R2P has arguably been fundamentally damaged by events in Libya, and more recently Syria, the utilisation of the U4P resolution could serve to fill the lacuna caused by Security Council deadlock and potentially reinforce and legitimise the R2P concept.

Pluralism in Theories of Liability: Joint Criminal Enterprise versus Joint Perpetration

This paper scrutinizes the alleged pluralism between JCE and joint perpetration. It illustrates that the ICC and the ICTY in practice establish criminal responsibility under JCE and joint perpetration based on the participants’ cooperation in, and informed contribution to, a (criminal) organization involved in the commission of international crimes. This makes the alleged pluralism between these theories of liability nominal rather than actual. Instead of stressing the differences between JCE and joint perpetration, it is therefore more productive to focus on the similarities. The paper accordingly draws an analogy with domestic theories of criminal responsibility for (co-)perpetration and participation in a criminal organization. It argues that the ICTY and ICC should recognize the kinship between these domestic theories of liability, on the one hand, and JCE and joint perpetration, on the other hand. This can lead to a concept of criminal responsibility for international crimes that is better confined and more intellectually honest.

From The Hague to the Balkans: A Victim-oriented Reparations Approach to Improved International Criminal Justice

The international crimes committed in the territory of the former Yugoslavia during the 1990s have been the subject of both State responsibility claims and prosecutions establishing individual criminal responsibility. On 26 February 2007 the International Court of Justice handed down its judgment in the Genocide case while it is expected that in 2014 the International Criminal Tribunal for the former Yugoslavia will conclude all appeals from prosecutions. While these initiatives contribute to the acknowledgement of the commission of international crimes they have not provided the victims with any financial reparations. Instead victims have had to make compensation claims under domestic law. The article examines how, in addition to the international initiatives at The Hague, a regionally focused victim oriented reparations approach can assist in attaining improved international criminal justice for international crimes committed during the Yugoslav wars. A victim oriented reparations approach would enhance victims’ rights through the provision of financial reparations, reflect improved international criminal justice and assist in the attainment long-term stability in the war-torn States of the former Yugoslavia.

The Trickle-down Effects of Normative Power: The Role of International Courts in Advancing Palestine’s Actual Independence

One of the questions raised in the context of Palestine’s application for United Nations’ (UN) membership concerns the value of UN affirmation of Palestinian inalienable rights, including the right to self-determination, and the possible action that could flow from such repeated recognition. On 29 November 2012, Palestine obtained ‘non-member State observer’ status in the General Assembly, which ‘accord[s] to Palestine non-member observer State status in the United Nations.’ The resolution is a measure undertaken in parallel to Palestine’s pending application for full UN membership submitted in September 2011, which was shelved by the Security Council later that year for lack of agreement amongst the Council members. This short paper examines prospective international law tactics and strategies for gaining the means to ensure the independence of the State of Palestine, namely, by triggering the respective roles of the International Court of Justice (ICJ) and the International Criminal Court (ICC). The role of international courts in achieving Palestine’s independence on the basis of the above-mentioned strategy can be divided into two facets: (i) the strictly procedural role of the ICJ in providing a legal determination with respect to Israel’s conduct, which would prepare the grounds for defining the framework to counter Israel’s territorial regime in the Occupied Palestinian Territory (OPT); and (ii) the substantive role of the ICJ and ICC in enforcing the rights that flow from Palestine’s current independence and sovereignty by criminally prosecuting Israeli officials for their commission of international crimes, and furthering the imposition soft and hard sanctions, as appropriate, on the Israeli government for its violations of international law. In this regard, for instance, a determination by the ICJ could be used as a basis to pursue additional avenues within the UN collective security system. By reaffirming the intrinsic illegality of Israel’s presence in Palestinian territory, third state obligations that flow from Israel’s illegal conduct would be reified, thereby furthering concrete measures intended to counter Israel’s conduct and reaffirm the rule of international law. Further determinations concerning Palestine’s statehood status in international law and the illegality of its occupation regime would provide Palestine with additional tools and means to enforce its sovereign rights vis-a-vis Israel, as well as third party States and international organisations, by granting it additional leverage to demand withdrawal of all Israeli troops and settlements from its territory and compliance by international actors with their legal obligations, both under international law and their respective domestic legal orders and foreign policy commitments.

Mind the Gap: Lacunae in the International Legal Framework Governing Private Military and Security Companies

This article examines the common claim that there are gaps in international law that undermine accountability of private military and security companies. A multi-actor analysis examines this question in relation to the commission of international crimes, violations of fundamental human rights, and ordinary crimes. Without this critical first step of identifying specific deficiencies in international law, the debate about how to enhance accountability within this sector is likely to be misguided at best.

Corporations, international crimes and national courts: a Norwegian view

AbstractFor a number of reasons, questions regarding the accountability of corporations for actions that might be complicit in the commission of international crimes have gained prominence in recent times. Though initiatives regarding what is more broadly described as business and human rights are to be welcomed, this sometimes distracts from existing systems of accountability, especially when those acts, which may be discussed as human rights violations, equally constitute crimes. Whilst not all criminal jurisdictions extend to legal persons, the Norwegian Penal Code does. This article analyses the Norwegian Penal Code's provisions, in light of amendments made to it in 2008 to include international crimes in it, with the effect of extending those crimes to corporations. The article first addresses the personal, material, temporal, and geographical scope of the penal code. It then addresses the potential consequence of the exercise of jurisdiction in light of the only case in recent times in Norway that deals explicitly with a corporation's potential criminal liability for war crimes. The article then addresses three additional issues with respect to provisions on complicity, intent, and defences under the Norwegian Penal Code, before concluding with some reflections on the possible future effects of this legislation and the possibility that it will inspire developments elsewhere.

Rogue Traders: Dutch Businessmen, International Crimes and Corporate Complicity

Recently, in The Netherlands, two businessmen have been prosecuted for their involvement in the commission of international crimes. In this article, the cases are analysed in the broader context of corporate complicity in international crimes. We enquire as to which extent these cases are typical for addressing corporate complicity and what lessons can be drawn from them. The cases illustrate the empirical variety of corporate complicity in international crimes. Furthermore, they indicate that investigating corporate complicity and connecting business entities to international crimes is rather difficult. Questions are raised as to the intended deterrent effect of such prosecutions.

Perpetrators and Victims: Prosecuting Children for the Commission of International Crimes

In the last decade, we have seen an important development in the enforcement of international law. For the first time since the Nuremberg trials,4 international criminals have been prosecuted before international tribunals for committing the most heinous offences of genocide, war crimes and crimes against humanity. The United Nations’ regional ad hoc tribunals – the International Criminal Tribunals