Criminal Court Research Articles

ARTICLE 98 OF THE ROME STATUTE AS A SHIELD AGAINST THE PROSECUTION OF INTERNATIONAL CRIMES BY THE INTERNATIONAL CRIMINAL COURT

Article 98 of the Rome Statute makes provision for immunity and non-surrender agreements contrary to the objective and purpose of the Statute, thereby shielding perpetrators from prosecution for international crimes. This cuts down on the ability of the International Criminal Court to achieve its mission. Adopting a doctrinal method of research, this paper examines the effects of Article 98 and concludes that it has been the foundation of bilateral immunity and non-surrender agreements culminating in several approaches adopted by States, and International Organizations to insulate perpetrators from ICC prosecution. It is therefore recommended inter alia that State parties should not adopt measures friendly to Article 98 and its effect can be ignored by considering the equirement to waive immunity into an impartial, unbiased, and effective command from the UNSC to cooperate with the ICC in the prosecution of international crimes.

Virtual parental presence with coaching for reducing preoperative anxiety in children: a feasibility and pilot randomized controlled trial

BackgroundPreoperative anxiety in children causes negative postoperative outcomes. Parental presence at induction is a non-pharmacological strategy for relieving anxiety; nevertheless, it is not always possible or effective, namely when parents are overly anxious. Parental presence via video has been demonstrated to be useful in other contexts (divorce, criminal court). This study reports the feasibility of a randomized controlled trial to investigate the effect of video parental presence and parental coaching at induction on preoperative anxiety. MethodsThe study was a randomized, 2 × 2 factorial design trial examining parental presence (virtual vs. physical) and coaching (provided vs. not provided). Feasibility was assessed by enrollment rate, attrition rate, compliance, and staff satisfaction with virtual method with the NASA-Task Load Index (NASA-TLX) and System Usability Scale (SUS). For the children's anxiety and postoperative outcomes, the modified Yale Preoperative Anxiety Scale (mYPAS) and Post-Hospitalization Behavioral Questionnaire (PHBQ) were used. Parental anxiety was evaluated with the State-Trait Anxiety Inventory (STAI) questionnaire. ResultsA total of 41 parent/patient dyads were recruited. The enrollment rate was 32.2%, the attrition rate 25.5%. Compliance was 87.8% for parents and 85% for staff. The SUS was 67.5/100 and 63.5/100 and NASA-TLX was 29.2 (21.5–36.8) and 27.6 (8.2–3.7) for the anesthesiologists and induction nurses, respectively. No statistically significant difference was found in mYPAS, PHBQ and STAI. ConclusionA randomized controlled trial to explore virtual parental presence effect on preoperative anxiety is feasible. Further studies are needed to investigate its role and the role of parent coaching in reducing preoperative anxiety.

Determination of a Witness to Be a Defendant in a Criminal Corruption Case

The background for carrying out this research is that there is a rationale for legal claims in order to determine a legal subject of a Witness to be the legal subject of a Defendant directly by the Panel of Judges in an ongoing criminal justice process for criminal acts of corruption, in order to carry out justice or law enforcement more effectively and efficiently, so that substantive justice can be achieved in law enforcement. The methods that have been used in this research are legal actions that allow a Witness legal subject to become a legal subject for the Defendant directly by the Panel of Judges in an ongoing judicial process, normative juridical approach legal research or research that examines legal rules according to library research, and the research specifications are analytical descriptive, and in this research secondary data was obtained. The data collection technique was carried out through literature study, and the data analysis used was qualitative and explained descriptively. This research concludes that in the existing criminal justice system, the legal subject of the Witness can actually be the legal subject of the Defendant in an ongoing trial; it's just that such "determination" is not made explicitly. To determine a witness as a defendant, there are two parties who can take the initiative to determine the witness directly as a defendant in a trial process at a corruption criminal court. Namely the Public Prosecutor, especially the KPK Public Prosecutor. Carried out at the request of the Public Prosecutor to the Panel of Judges.

Ecocide, Sustainable Development and Critical Environmental Law Insights

Abstract Advocates of the criminalization of ecocide face a dilemma: how to address activities that bring socio-economic benefits and cause severe environmental damage. The solution has generally been seen in the integration of international environmental law (IEL) norms, such as balancing sustainability with development, into the definition of ecocide. This article challenges the uncritical adoption of IEL norms in ecocide debates and explores the socio-ecological implications of relying on those norms in future trials at the International Criminal Court. While this article does not offer a new definition of ecocide, by borrowing insights from critical environmental law and studies of law in the Anthropocene it proposes a new approach for engaging with the question of ecocide, namely, by embracing reflexivity and normativity in legal practice.

Atrocity Crimes, Children and International Criminal Courts: Q&A with Cécile Aptel

Atrocity Crimes, Children and International Criminal Courts: Q&A with Cécile Aptel

Terrorism and War Crimes: Two Sides of The Same Coin?

The definition of terrorism is not consensual, even within the same country. Indeed, in the United States of America, a country where the fight against terrorism is one of the present political priorities, the definition varies depending on whether the source is the Department of Defense (DoD), the US Code, the Federal Bureau of Investigation (FBI) or the Department of State, but this lack of consensus does not mean that terrorism is not considered a crime according to the Resolution 49/6026 of 17 February 1995 of the United Nations General Assembly. However, many experts on the thematic do not accept the definition of terrorism as an international crime in time of peace defending that terrorism is essentially the violation of domestic laws which have their genesis in treaties to which states may or may not adhere, and this explains why some countries refuse to reduce their sovereignty and do not accept to transfer the jurisdiction for crimes of international terrorism to supranational institutions. According to this vision, terrorism must be included as a subtype in one of the four modalities that are already recognized by international law. This article reflects on the relationship between terrorism and the modalities of war crimes judged by the International Criminal Court (ICC) and seeks to show that the seriousness of the terrorist threat justifies that terrorism should be considered an autonomous international crime.

Ratifikasi Statuta International Criminal Court Dalam Penegakan Hak Asasi Manusia di Indonesia: Perlukah?

The prosecution of serious human rights violations in Indonesia is complemented by special courts. These courts are ad hoc and can try cases of past serious human rights violations. By ratifying the Rome Statute, Indonesia will become a state subject to the jurisdiction of the International Criminal Court. However, this feature of subordination is not absolute, but rather complementary. The aim of this research is to determine aspects of serious human rights violations in international law as well as the effectiveness of the implementation of international criminal law in the human rights justice system in Indonesia. The research method is normative law using secondary data with a conceptual approach. The research results show that serious human rights violations in international law can take into account the objectives of international criminal law regulations as well as Indonesian criminal law regulations. These are issues that affect the interests of security, order and peace of the international community and humanity in particular. The International Court of Justice has jurisdiction limited to the most serious crimes of concern to the international community as a whole. Under the Rome Statute, the Court has jurisdiction over serious human rights violations. However, Indonesia has not yet ratified the Rome Statute, due to differing views on how it should function and differing understandings of human rights violations.

All Roads Lead to Rome Combating Impunity for Perpetration of Slave Trade and Slavery Crimes

The Republic of Sierra Leone has proposed amendments to the Rome Statute of the International Criminal Court (ICC) to include, inter alia, provisions for the slave trade as a crime against humanity and has recommended that the General Assembly include the slave trade as an enumerated crime in the Draft articles on Prevention and Punishment of Crimes Against Humanity (CAH) (Draft articles). This declaration came nearly five years after Cardozo's Benjamin B Ferencz Human Rights and Atrocity Prevention Clinic, on behalf of slavery crimes expert Patricia Viseur Sellers, sent commentaries to the United Nations International Law Commission (ILC) to revise in a similar fashion the Draft articles. The Rome Statute creates a wide impunity gap by omitting the slave trade entirely as a war crime and crime against humanity and by including only those conflict-related slavery acts that include causing someone to engage in an act of a sexual nature. Specifically, the Rome Statute does not enumerate the slave trade or slavery under Article 8 as war crimes. It does not define the slave trade within the crime of enslavement under Article 7(g) as a crime against humanity or explicitly enumerate the slave trade within the context of a widespread or systematic attack against a civilian population. War crimes conduct is not captured fully or explicitly under ICC jurisdiction because the Rome Statute sanctions only persons exercising powers attaching to the rights of ownership who also cause that person to engage in an act of a sexual nature. Crimes against humanity conduct also escapes legal sanction when perpetrators transport or otherwise engage in any slave trade acts without exercising powers attaching to the right of ownership over a person. Furthermore, the Rome Statute's bifurcation of enslavement and sexual slavery lead to non-factual, incomplete, and discriminatory results. Sexual slavery is enslavement; its separate enumeration as a crime against humanity has required some victims to prove additionally that they were caused to engage in an act of a sexual nature in violation of non-discrimination and others' slavery harms to escape legal characterization altogether.

The Politics of Punishment: Why Dictators Join the International Criminal Court

Abstract Scholars commonly argue that international law and organizations promote democracy by helping dictators to credibly commit to accountability, individual rights, and transparency. Yet dictators routinely join treaties and international organizations without transitioning to democracy. International law and organizations can generate asymmetric costs for domestic actors because international rules often apply to both governments and non-state actors, yet dictators can limit how these rules are upheld at the domestic and international level. We argue that dictators are most likely to join such treaties and international organizations when they face strong domestic political competition. We illustrate our argument using the International Criminal Court (ICC), which has extensive powers to prosecute individuals for international crimes, including crimes against humanity, genocide, and war crimes. We show that ICC investigations and prosecutions have become a tool for incumbent dictators to target their domestic opponents. We examine the implications of our theory for multiple outcome variables, including the decision to join the ICC, violence, and the survival of dictators in power. Our evidence suggests that dictators are most likely to join the ICC when they face strong political opponents and are subsequently less likely to commit violence and more likely to survive in office.

Extrajudicial Killings over the Drug War in the Philippines under the ICC Jurisdiction

Extrajudicial killings in the Philippines have escalated, resulting in severe human rights violations exacerbated by the enforcement of drug war policies, which have led to numerous deaths without due legal process. These killings constitute serious crimes falling within the jurisdiction of the International Criminal Court (ICC). This paper examines how the ICC can serve as an international mechanism for addressing extrajudicial executions in the Philippines' drug war. Employing normative legal research methodology, the study utilizes legal sources focused on normative law as primary data. The ICC, functioning as a permanent court, is mandated to prosecute individuals responsible for international crimes under the Rome Statute. The findings confirm that extrajudicial killings in the Philippines qualify as international crimes, thus within the ICC's purview. Consequently, the ICC's involvement should not be construed as a challenge to national sovereignty but rather as a catalyst for strengthening global criminal justice frameworks. By holding perpetrators accountable, the ICC can stimulate the development of national criminal justice systems worldwide and encourage the enactment of domestic laws addressing egregious human rights violations and breaches of international humanitarian law. This role underscores the ICC's mission to promote universal ideals and ensure justice for victims of grave international offenses.

Settlement of the "Cleaning Operation" Case of the Rohingya Ethnic in Myanmar Based on International Law

The Independent International Fact-Finding Mission on Myanmar (IIFFMM) released a report on August 27, 2018, documenting over 10,000 deaths and the displacement of more than 725,000 Rohingyas to Bangladesh due to "clearance operations" conducted by the Myanmar Military. These actions constitute severe violations of international human rights law, potentially amounting to crimes against humanity, for which perpetrators could face prosecution at the International Criminal Court (ICC). However, Myanmar's non-ratification of the Rome Statute presents a significant obstacle to effective enforcement. Therefore, a more robust approach is necessary to address the plight of the Rohingya ethnic group affected by these operations. This study adopts a normative research methodology employing both statutory analysis and case study approaches. The Tatmadaw's culpability in committing acts of genocide against the Rohingya ethnic group has been established. To address this, three key mechanisms are proposed: the application of the Responsibility to Protect (R2P) principle, the involvement of international governmental organizations (IGOs), and the pursuit of justice through ICC proceedings. Urgent action is required to ensure accountability for those responsible for genocide, particularly high-ranking Tatmadaw officials, thereby preventing impunity from perpetuating.

The International Criminal Court and responsibility for mass atrocities: Can JCE enhance capacity to hold masterminds accountable?

ABSTRACT 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.

The Normative Framework Behind the (Non-)Recognition of Children Born of War in International Criminal Law

Abstract This article traces the normative development in international criminal law on children born of war (cbow—i.e., children born in the context of an armed conflict to one parent who belongs to a local community and one parent who is an opposing combatant, fighter or peacekeeper). In a historical cross-contextual approach, primary and secondary sources, and particularly jurisprudence of international criminal courts from 1945 to today, are interpreted in reference to political psychologist Inger Skjelbæk’s epistemology conceptualising conflict-related sexual and reproductive violence as carrying essentialist, structuralist and socio-constructivist implications. The analysis traces how cbow as a group of victimised but underacknowledged war-affected children have come to be understood in international justice. The findings point to avenues for normative refinement that would facilitate a more coherent and unbiased integration of their interests into the practice of international courts.

Environmental Damage in Ukraine as Environmental War Crime under the Rome Statute

Abstract The Russian invasion of Ukraine has caused irreparable damage to the natural environment. Despite being a topic of wide discussion, an analysis of whether the attacks causing such damage can be tried at the International Criminal Court (ICC) as an environmental war crime (EWC) under Article 8(2)(b)(iv) of the Rome Statute remained grossly inadequate. Even after the Kakhovka Dam destruction in June 2023, the most significant incident of environmental damage since the war started, no comprehensive analysis of the incident from an EWC perspective was made. The present article fills this void and thoroughly analyses whether the dam breach can qualify as an EWC under Article 8(2)(b)(iv), the most ecocentric provision in the entire international criminal law (ICL) framework. After providing an overview of the environmental damage caused and a synopsis of the EWC, this article applies the EWC provision to the incident and discusses the prospects and the challenges of characterizing it as an EWC. This article suggests that Russia’s intentional attack on the dam can be a potential case of EWC under Article 8(2)(b)(iv) as it caused ‘widespread, long-term and severe’ environmental damage in contrast to little military advantage — which was arguably known to Russia. At the same time, however, the article identifies some challenges that the ICC Prosecutor may face in proving the case, like determining the ‘attack’ question, satisfying the ‘long-term’ damage criterion, and establishing the mental elements, particularly the ‘knowledge’ element. It also briefly discusses the broader implications of the assessment and the identified challenges. The article concludes that the challenges can be surmounted and, in any case, bringing such a charge will offer the ICC an avenue to clarify the existing uncertainties surrounding Article 8(2)(b)(iv), which will ensure legal certainty and help ensuring environmental justice through the ICL regime in future.

PROBLEMATIC ASPECTS IN THE INVESTIGATION OF WAR CRIMES

This article examines the problematic aspects that arise during the investigation of war crimes, focusing on identifying the main challenges and developing recommendations to overcome them. It analyzes the difficulties faced by investigative bodies in collecting evidence, the legal and procedural barriers that complicate the investigation and prosecution of perpetrators. Special attention is given to the role of international law and the cooperation of interstate organizations in improving the effectiveness of investigations. As a result of the research, specific recommendations are proposed to enhance the quality of war crime investigations and strengthen the rule of law at the international level. The research on this topic analyzes the works of scholars such as I. Hlovyuk, V. Zavtur, N. Lashchuk, V. Navrotskaya, M. Pashkovsky, R. Serkevich, N. Ustritskaya, and others. Greater attention is paid to current legislative acts and the Rome Statute of the International Criminal Court. The issue of exchanging prisoners of war in Ukraine is regulated by various normative legal acts, including the ICC RS and the Criminal Procedure Code of Ukraine (CPCU). The appendix to Article 3 of the CPCU establishes that a person who has the procedural status of a suspect, accused, or convicted can be exchanged as a prisoner of war. Amendments to the CPCU regarding the interrogation of persons for whom a decision on exchange has been made do not contain substantive additions or clarifications, which may lead to inappropriate application of these provisions. Although the CPCU does not contain a separate norm regarding the procedural status of prisoners of war, the legislator has made changes to regulate the exchange of persons during martial law, which became possible thanks to the law dated July 28, 2022. Despite the legislator’s attempts to improve the procedure for exchanging prisoners of war, some aspects remain complex, which may violate the principle of legality and the rule of law. Ukraine, even without being a state party to the ICC RS, is obliged to cooperate with this international body in accordance with Article 12(3) of this statute. The presence of implementing legislation that regulates national cooperation procedures is a prerequisite for the comprehensive fulfilment of Ukraine’s obligations to the ICC. Better definition of the statuses of participants in criminal proceedings, particularly those for whom the ICC’s request for co-operation has been received, as well as the regulatory establishment of the status of prisoners of war, is needed. Ukrainian prosecutors and pre-trial investigation bodies should adhere to the specifics provided by the ICC Rules of Evidence when conducting interrogations of witnesses, suspects, and victims. Failure to take appropriate actions during interrogations may lead to the recognition of interrogation protocols as inadmissible evidence, which will reduce the number of high-quality evidence on the part of the prosecution.

How judges in Canadian criminal courts define intimate partner violence

How judges in Canadian criminal courts define intimate partner violence

Environmental Consequences of the Kakhovka H.P.P. Destruction in Ukraine: Challenge and Opportunity for International Justice

This article provides a legal analysis of the destruction of the Kakhovka hydroelectric power plant dam that took place on June 6, 2023 in Russian-occupied Ukraine. Highlighting the role of Russian troops in this act, the authors equate its consequences to the 1986 Chornobyl disaster. The dam's explosion marks a severe environmental catastrophe amidst ongoing high-intensity hostilities in Ukraine, threatening vast natural areas with environmental disaster. Authors discuss the broad environmental and cross-border impacts, particularly in the Black Sea basin, and review the international environmental conventions breached by this incident. The event aligns with the concept of ecocide, a term not yet fully established in international law, but increasingly recognized. The article emphasizes the possibility of prosecuting those responsible for extensive, long-term, and severe environmental damage under existing legal frameworks. Focusing on international legal instruments, the article explores the grounds for international criminal responsibility and examines the jurisdictions that could address the ecocide, including the International Court of Justice, the International Tribunal for the Law of the Sea, a proposed Special Ad-Hoc Tribunal, and the International Criminal Court (ICC). The authors argue that the Kakhovka dam case presents the ICC with a unique opportunity to enforce international norms against severe environmental damage during hostilities, as outlined in Article 8.2b (iv) of the Rome Statute. They conclude that the ICC’s involvement would be a significant step in proving its capability to address war crimes involving environmental destruction.

Book Review: The Rohingya Crisis and the International Criminal Court by Takemura, H.

Book Review: <i>The Rohingya Crisis and the International Criminal Court</i> by Takemura, H.

PENGUNDURAN DIRI RUSIA DARI ICC : TELAAH BERDASARKAN ASAS GOOD FAITH DALAM HUKUM PERJANJIAN INTERNASIONAL

This study aims to examine the validity of Russia's withdrawal from the International Criminal Court (ICC) in light of the principle of good faith as established in the Vienna Convention on the Law of Treaties (VCLT). The primary objectives of the research are, firstly, to elucidate the legal implications of the principle of good faith within the 1969 VCLT. Second, to apply this principle to evaluate Russia's withdrawal from the ICC in 2016. To address the legal questions raised by this research, both the statutory and conceptual approaches have been employed. The statutory approach refers to the 1969 VCLT as the source of statutory law, while the conceptual approach draws on the opinions of scholars regarding the application of the principle of good faith in international treaty law. The findings of this research indicate that Russia's withdrawal from the ICC is not legitimate, as it demonstrates Russia's intention to avoid the application of the ICC's provisions. This withdrawal constitutes an act of bad faith, as it deliberately circumvents the unfavorable provisions of the agreement that apply to Russia following its occupation of Crimean territory.

Disconnect: The International Criminal Court’s Engagement in the Situation in Bangladesh/Myanmar

Abstract The International Criminal Court (icc) Registry’s reports on information and outreach activities concerning Bangladesh and Myanmar speak of two worlds. One, of a public affairs-focused managerial institution, and another of diverse priorities, insecurity, and complicated interactions among communities, organisations and states. To meet their aims and purposes, international criminal mechanisms must engage with other actors. Researchers have identified ‘lessons’ for conducting effective communications, including outreach, for information dissemination, building support, and conducting legitimate and safe trials. This article analyses documents and draws on limited interviews to explore how, despite these insights being represented in icc strategies, disconnection between the icc and interested actors in the pre-trial Bangladesh/Myanmar situation persists. It argues that the icc’s continued failure to integrate experiences or its own strategies for two-way communication undermines its ability to fulfil its purposes.