Enforcement Of International Criminal Law Research Articles

Universal Jurisdiction: Law out of Context

Universal jurisdiction enables the prosecution of international crimes by domestic courts in the absence of any nexus between the prosecuting state and the crime charged. While the temptation is for domestic judges to proceed with ‘business as usual’ in the conduct of such trials, difficulties in the practice of universal jurisdiction reflect the importance of developing a better understanding of the distinctive communities, interests, crimes and cultures these trials are intended to serve. The exercise of universal jurisdiction is commonly regarded as a form of domestic jurisdiction exercised pursuant to a sovereign right under international law. This article invites a re‐conceptualisation of the concept of universal jurisdiction, explaining that it is not a form of domestic jurisdiction acquired based on sovereign nexus between the crime charged and the prosecuting state. Instead, it should be recognised as a form of decentralised ‘international jurisdiction’, exercised as part of a state's contribution to the enforcement of international criminal law. This re‐conceptualisation has implications for the way in which domestic courts engage with many of the challenges facing universal jurisdiction trials, including problems of community, case selection, proof and translation.

A Short History of Prosecuting Crimes under International Law in Germany

Abstract This article takes the 20th anniversary of the entering into force of the German Code of Crimes against International Law (Völkerstrafgesetzbuch, CCAIL) as an opportunity to offer a historical review of the prosecution of international crimes in (West-)Germany. Starting from the post-World War II period, it flags early milestones, including efforts to hold accountable before German courts those involved in Nazi atrocities, in state oppression in the German Democratic Republic, in violations of international humanitarian law during the Yugoslav wars, and in dictatorship crimes in Argentina. This article then focuses on the practical implementation of the CCAIL and presents, at a glance, major trends, flaws and lessons learned over the past 20 years. It identifies four major phases: standstill, build-up, implementation and consolidation. This article concludes with a call for German judges and prosecutors to step up their efforts to contribute to a uniform and universal enforcement of international criminal law.

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.

Watershed Moment or Same Old?

Abstract This note places the revitalization of international criminal law spurred by the international community’s response to the large-scale commission of core crimes in Ukraine in the aftermath of Russia’s February 2022 invasion into a broader (geo)political context. The unprecedented financial and operational support the International Criminal Court (ICC) Prosecutor has received since raises questions about its implications for the future of international criminal justice and the ways forward for the ICC and the Rome Statute system. The ICC states parties should avoid turning this crisis into a special case for international criminal law enforcement and seize the ‘Ukraine moment’ to remedy rather than perpetuate existing enforcement asymmetries.

Kerjasama Internasional Dalam Penegakan Hukum Pidana Internasional

The purpose of the study is to examine the form of international cooperation in the enforcement of international criminal law. The occurrence of international cooperation is characterized by the existence of relations between subjects of international law that need each other. The development of international law and international criminal law in the 21st century has entered the century of integrated world of community in facing challenges and threats by disengaging from the reality of the interrelationship and attachment of a nation to objective conditions both culturally, ethnically, geographically and factors of the political system that develops in the country concerned so that international cooperation is indispensable in enforcing international criminal law or it can be said that it can be said that International cooperation is an important factor in the enforcement of international criminal law. Research Methods use a type of literature paradigmatic approach, secondary data sources, and data analysis using descriptive analysis. The results showed that there are forms of cooperation that can be carried out in the enforcement of international criminal law, especially human rights violations, including extradition, transfer of prisoners, mutual legal assistance, joint investigations, cooperation in conducting special investigation techniques, and transfer of criminal proceedings.

Strategic Litigation in International Criminal Justice

Abstract This article inquires into strategic litigation in international criminal justice. Drawing on the findings of an empirical study, it sheds light on the practice and self-perception of Strategic Litigation NGOs (so-called SLiNGOs) who employ international criminal law not only as an advocacy tool but use litigation to target perpetrators of international crimes as part of a larger juridical–political strategy transcending the individual case. Following a brief reflection on the role and significance of NGOs in international criminal justice in general and an examination of the basic idea of strategic litigation, the article delves into an analysis of the concept of strategic litigation as employed by SLiNGOs as well as the various functions of strategic litigation specifically in the international criminal justice context. Relying on interviews with SLiNGO representatives, the authors examine whether SLiNGOs — in their self-perception — serve merely as ‘assistant prosecutors’ or rather as kickstarters, pacemakers and watchdogs of the enforcement of international criminal law. They further explore the counter-hegemonic potential of strategic litigation and SLiNGO’s attitudes towards international criminal justice as such. Analysing potential pitfalls and critiques directed at strategic litigation and the responses of SLiNGOs to such criticisms, the authors conclude that strategic litigation can indeed fill a gap in the current state-based system of international criminal justice and suggest an agenda for further research.

The AU’s journey to an African Criminal Court: a regional perspective

ABSTRACT The discourse on international criminal law enforcement took an interesting turn when, in 2016, three African states announced their withdrawal from the ICC, punctuated by rhetoric, both from within the AU and a selection of African Heads of States, on the need for an alternative African-wide criminal court. Researchers, over the years, have examined the strained relationship between the ICC and AU. However, very little, if any, research has examined the discourse from the perspective of regionalism, and whether a regional criminal court, which would be the first of its kind, is in line with recent regional strides within Africa. This article examines seeks to make an important contribution to the literature by examining past developments between the AU and ICC. It argues that, its feasibility notwithstanding, there is a strong case for viewing Africa's move for a regional court from an alternative lens of regional governance and control.

Mobile hearings in the Eastern DRC: prosecuting international crimes and implementing complementarity at national level

ABSTRACT Through the complementarity principle of the International Criminal Court, international criminal law enforcement is transferred from international courts to national courts. This has led to an increase of international actors’ focus on national courts to achieve international criminal justice. The Democratic Republic of the Congo (DRC) presents a significant example to examine the prosecution of international crimes by national courts and international actors’ support to Congolese legal system to promote complementarity and international criminal justice. International actors provide assistance to mobile hearings to prosecute international crimes and to implement complementarity at the national level in the eastern DRC. This article explores mobile hearings through their role in implementing complementarity in the DRC and international and national influences on mobile hearings regarding the prosecution of international crimes. The main argument is that although mobile hearings are significant to bring justice closer to local communities and increase the visibility of justice in remote and rural areas, their independence is in question as a result of the selective interest of international actors and political interferences coming from Congolese political and military elites.

Ne bis in idem, nulla poena sine lege and Domestic Prosecutions of International Crimes in the Aftermath of a Trial at the International Criminal Court

Abstract The outcome of an icc trial – be it a conviction or acquittal – receives significant attention. However, what happens to a defendant in the aftermath of the proceeding garners little discussion. This article seeks to fill this gap in the literature by analysing how the ne bis in idem and nulla poena sine lege principles, enshrined in Articles 20(2) and 23 of the Rome Statute, protect defendants from subsequent prosecutions and punishments by states and regional courts following their trials at the icc. We argue that these provisions do not provide adequate protection. Further, we argue that given the icc’s limited power to enforce compliance with these provisions as well as the primary role that states enjoy in the enforcement of international criminal law, the most appropriate way to address this issue is through the inclusion of robust protections in domestic legislation and the constituent instruments of regional courts.

The ‘Soul of an Army’: A Defence of Military Court Trials for Violations of the Law of Armed Conflict

Military justice as a body of law was subject to much criticism in the preceding decades before undergoing significant reforms to ensure that fair trial rights could be achieved. However, modern military justice systems are appropriate mechanisms for addressing law of armed conflict (LOAC) violations committed by service members. It is argued that the goals of military justice are consistent with LOAC, and that military justice has a valid legal basis to try violations. Such trials have a large body of precedent. The purported disadvantages of military trials are sufficiently mitigated to prevent cover-ups and unfair trials. Furthermore, military justice offers several benefits that cannot be achieved in a civilian or international forum. It is concluded that although military legal systems are imperfect, their role in the enforcement of international criminal law is worthy of further debate.

Penegakan Hukum Pidana Internasional dalam Kejahatan Perang terhadap Kemanusiaan

War is a condition in which one party subdues its opponent to fulfill his will, a physical or non-physical act between two or more human groups to dominate. The formulation of the problem of this research is how the role of International Criminal Law on law enforcement in war crimes against humanity and how the state responsibility in war crimes against humanity in International Criminal Law. This research method uses the type of normative legal research by doing the assessment based on legal materials of the literature and is a process to find the rule of law, legal principles, and legal doctrines to answer the legal issues faced. War crimes and crimes against humanity are two types of international crimes that exist in twenty international criminal types designed by ILC (International Law Commission) to design the establishment of an international criminal tribunal. The conclusion of this study is the role of International Criminal Law in war crimes against humanity can be concluded that is contained in conventions contained in International Humanitarian Law contains only command or prohibition only but international criminal law have role in giving criminal sanction against violation of command or prohibition that and the state's responsibility in international criminal law can be an obligation to prosecute international criminal offenders encountered in various instruments of International Law. The form of state responsibility under the Rome Statute is that States Parties shall have two main obligations: States Parties shall bring each perpetrator of genocide, crimes against humanity, criminal acts of war and criminal acts of aggression before the courts and the participating States in imposing their jurisdiction in enforcement of International Criminal Law must cooperate fully in the enforcement of International Criminal Law.

Charging decisions, legal framing and transitional justice: the prosecution of Wouter Basson

Charges brought against an alleged human rights abuser vary, with some charged with core international crimes and others with ordinary crimes rooted in domestic law. This article examines such variation through the charging decisions of South African prosecutors tasked with prosecuting Wouter Basson, an apartheid official accused of egregious human rights violations. Why did prosecutors initially charge Basson with domestic crimes, only to later reframe his conduct as core international crimes? Through a frame analysis supported by interviews with trial prosecutors and trial document analysis, this article argues that domestic and international law functioned as frames shaping the interpretation of Basson’s offences. Initial characterisations of Basson’s conduct as ‘ordinary crimes’ were driven by the institutionalisation of the domestic law frame during apartheid. While the 1996 constitutionalisation of international law expanded the range of potential charges brought against Basson, this expansion was mediated by the backgrounds of individual prosecutors, counter-framing behaviour of other legal actors and changes in judicial venue. Charging decisions are a vital pathway for the indirect enforcement of international criminal law; analysis of the Basson case thus provides insight into the decision-making dynamics of prosecutors who continue to regulate South Africa’s involvement in the international justice system today.

Coorporate States within Transnational Crime Issues for International Criminal Law Enforcement

Transnational Crime is the crime which takes place in more than one country jurisdictions, but their consequences significantly affecting other countries. Transnational crime also against more than one country domestic law, however, it need not be based in international law as such. Although, either international agreements or treaty (purely procedural) and custom can be relevant to the issues concerning jurisdiction, enforcement, due process, judicial cooperation, the serving of sentences. For example: human smuggling, sea piracy, money laundering, terrorism, trafficking in illicit arm and drug. According to the Convention on Transnational Organized Crime 2000, an offense is transnational if, firstly, it is committed in more than one state, secondly, it is committed in one state but a substantial part of its preparation, planning, direction, or control takes place in another state, thirdly, it is committed in one state but involves an organized criminal group that engages in criminal activities in more than one state, finally, it is committed in one state but has substantial effects in another state.

Nationalizing International Criminal Law: The International Criminal Court as a Roving Mixed Court

International law scholars often assume that the best way to enforce human rights is by establishing strong international institutions that develop the law progressively and enforce it independently. Political realists counter that such institutions are only as useful as powerful states permit them to be, and discourage expansive visions of their mandate. Partisans of the recently created International Criminal Court (ICC) must come to terms with the realist challenge. They must work to adapt the institution accordingly, without abandoning hope for the project altogether. Although the ICC will be constrained by the state support it commands, it can make a difference in the enforcement of human rights law by encouraging and assisting national authorities in upholding and enforcing international law. The ICC and its supporters must decide how the institution will use the powers it has. This Article argues that if the Court pursues a path of centralization and insularity, it will encounter resistance from member states and from the United States and bring about few of the benefits of reconciliation and institution-building that its founders envisioned. If the Court engages in joint investigations and trials with national authorities, along the model of mixed courts already in use in Sierra Leone and East Timor, enforcement of international criminal law will become more agreeable to the participating states, who will feel a sense of ownership and control over the process. In this new, less dominant role, the Court might even become acceptable to the United States whose support is critical for the Court's effectiveness. The mixed-court model for the ICC holds out the promise of strengthening local capacities and contributes to the rebuilding of the rule of law in nations around the globe. It would move international human rights law in directions that its true friends must admit are ultimately wise and necessary - toward a system of law that is better informed, more widely accepted, and better enforced.

ASAS PACTA SUNT SERVANDA DALAM PENEGAKAN HUKUM PIDANA INTERNASIONAL

The dark history of the first world war and the second world war had an impact increasingly increasing international attention to the protection of human rights. One of the efforts made was strengthening the provisions in international law. The state as the main actor in international relations plays an important role in the establishment of norms in international law. In its development, state relations are regulated in international agreements. The most common principle in international treaties is pacta sunt servanda. In general, the pacta sunt servanda defined by the state is only bound by the agreement pursuant approval from the state. This becomes very crucial for the protection of the sovereignty of the state. In reality, however, there are few international treaties that grant rights and obligations to countries that do not participate in international treaties. Related to international criminal law enforcement, the existence of this principle keep on debated, especially since those stipulated in international criminal law are international crimes and punishment of perpetrators of such crimes. The international dimension in a crime can be seen from various aspects. Therefore this paper will discuss the principle of pacta sunt servanda in law enforcement of international criminal law. This research was normative juridical as the main approach. The principle of pacta sunt servanda should not be based of state bondage in international criminal law enforcement, the state may be bound in that by customary international law.

The ICC’s First ‘Forced Pregnancy’ Case in Historical Perspective

Abstract Reproductive violence, as distinct from the related issue of sexual violence, is yet to be truly ‘surfaced’ in international criminal law. Yet, this kind of violence has long been a feature of war, and is repugnant to the values that international criminal law protects. The Ongwen case, which commenced trial in the International Criminal Court in December 2016, is a step forward in this regard. Not only is this the first case in any international criminal court to include charges of ‘forced pregnancy’; it is also one of the only cases in which reproductive violence outside the context of genocide or ‘ethnic cleansing’ has been understood as a crime under international law. This article situates this landmark case is its historical contex, and raises some broader concerns about the limited response to reproductive violence in the development and enforcement of international criminal law. Based on an analysis of the law and practice of past and present international criminal courts, it shows that accountability for conflict-related reproductive violence has been patchy at best, and that there has been little recognition of the harms that such violence causes to individual victims, as distinct from the groups to which they ‘belong’. The article concludes by sketching out some steps to remedy these omissions, building on the progress made in the Ongwen case. Underlying the article is a view that reproductive autonomy is a distinct value from sexual autonomy, and that, where possible, conduct which offends this value should be punished as a separate crime.

Introductory Remarks by Erika de Wet

In June 2014, the African Union adopted a treaty (referred to as the Malabo Protocol) that would establish the first regional court with jurisdiction over human rights, general matters, and criminal matters. Its substantive jurisdiction included international and transnational crimes, as well as corporate criminal liability. This development sparked a debate as to whether other regions (notably Latin America) should also adopt a regional criminal court to prosecute transnational organized crime in Latin America. Moreover, the adoption of the Malabo Protocol raised questions concerning the relationship between regional criminal courts, national (domestic) courts, and the International Criminal Court (ICC) in the enforcement of international criminal law.

Expanding Criminal Responsibility in Challenging Transnational and International Organised Crime

In international criminal law theory, a conceptual divide is made between international crimes stricto sensu (genocide, crimes against humanity, war crimes, aggression) and transnational organised crime. This differentiation sustains the direct, respectively indirect enforcement mechanism: the so called ‘core crimes’ belong to the subject matter jurisdiction of international criminal tribunals and the International Criminal Court, whereas national jurisdictions aim to counter transnational crimes, by concluding ‘suppression conventions’ and seeking international cooperation on the basis of the aut dedere, aut judicare principle. Nevertheless, the division is questioned for being too rigid and simplistic, as the boundaries between the categories are increasingly blurred. On the one hand, political rebel groups and organised crime often unite to challenge the power monopoly of the state, while corrupt governments and private business conspire to exploit the local population (by pillage, deportation from their lands or pollution of the environment). On the other hand, there is an ongoing debate, triggered by the ICC Kenya Decision of March 2010, whether the commission of crimes against humanity is the ‘privilege’ of states and state-like groups, or whether the category should be expanded to cover larger organisations that are capable of committing such atrocities. In other words, there is a proliferation of state and non-state actors that engage in both ‘classic’ international crimes (war crimes, crimes against humanity) and transnational crime. These developments have fuelled the plea for supranational law enforcement in respect of transnational (organised) crime, exceeding the realm of inter-state cooperation on a horizontal basis. This essay will pay a modest contribution to this discussion by arguing that the quest for more effective law enforcement is bedeviled by the perplexity of fitting new patterns of crime and new perpetrators of international crimes into the classic mould of international criminal law. These two aspects are obviously intimately related and should not be considered in isolation. Any initiative to invigorate international criminal law enforcement - by for instance establishing new (international or regional) courts or by expanding the subject matter jurisdiction of existing courts – should therefore pay attention to both the elements of crimes and the modes of criminal liability.

Expanding Criminal Responsibility in Transnational and International Organised Crime

In international criminal law theory, a conceptual divide is made between international crimes stricto sensu (genocide, crimes against humanity, war crimes, aggression) and transnational organised crime. This differentiation sustains the direct, respectively indirect enforcement mechanism: the so called ‘core crimes’ belong to the subject matter jurisdiction of international criminal tribunals and the International Criminal Court, whereas national jurisdictions aim to counter transnational crimes, by concluding ‘suppression conventions’ and seeking international cooperation on the basis of the aut dedere, aut judicare principle. Nevertheless, the division is questioned for being too rigid and simplistic, as the boundaries between the categories are increasingly blurred. On the one hand, political rebel groups and organised crime often unite to challenge the power monopoly of the state, while corrupt governments and private business conspire to exploit the local population (by pillage, deportation from their lands or pollution of the environment). On the other hand, there is an ongoing debate, triggered by the ICC Kenya Decision of March 2010, whether the commission of crimes against humanity is the ‘privilege’ of states and state-like groups, or whether the category should be expanded to cover larger organisations that are capable of committing such atrocities. In other words, there is a proliferation of state and non-state actors that engage in both ‘classic’ international crimes (war crimes, crimes against humanity) and transnational crime. These developments have fuelled the plea for supranational law enforcement in respect of transnational (organised) crime, exceeding the realm of inter-state cooperation on a horizontal basis. This essay will pay a modest contribution to this discussion by arguing that the quest for more effective law enforcement is bedeviled by the perplexity of fitting new patterns of crime and new perpetrators of international crimes into the classic mould of international criminal law. These two aspects are obviously intimately related and should not be considered in isolation. Any initiative to invigorate international criminal law enforcement - by for instance establishing new (international or regional) courts or by expanding the subject matter jurisdiction of existing courts – should therefore pay attention to both the elements of crimes and the modes of criminal liability.

RESISTANCY TO THE LAW ENFORCEMENT OF (ASEAN) REGIONAL HUMAN RIGHTS MECHANISM, WHAT NEXT?

Regional mechanism on the protection of human rights in ASEAN formally has been developed since 2007 through the adoption of the ASEAN Charter in 2007 and the establishment of the ASEAN Intergovernmental Commission on Human Rights (AICHR) in 2009. Nevertheless, efforts on the law enforcement for human rights violations committed by ASEAN citizens and/or within ASEAN territory by establishing ASEAN human rights court is hardly to achieve due to national interest of each member states. Accordingly, for the objective of achieving justice and certainty of law, cooperation among ASEAN member states should be developed through other mechanism. This article tries to identify existing situations with respect to the protection and fulfillment of human rights particularly in regards to criminal matters in the ASEAN countries. Accordingly, the article examines the responses of the Member States to the development of human rights mechanism in ASEAN. Finally, we try to propose other mechanism in regards to the protection of human rights by developing cooperation in the enforcement of international criminal law for cases related to criminal matters in particular among ASEAN countries.