ICC Prosecutor 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.

A Critique of the Concerns on the Proprio Motu Powers of the ICC Prosecutor

A Critique of the Concerns on the Proprio Motu Powers of the ICC Prosecutor

The apartheid and racism campaigns - the NGO contribution to antisemitism

ABSTRACT Under the headings of promoting human rights and international law, the influential network of non-governmental organisations (NGOs) has been a central actor in the political war targeting Israel though allegations of apartheid and racism. In applying these slanders, the NGOs systematically erase the history of the Arab-Israeli conflict, including decades of warfare and terrorism, and join in the attempt to delegitimize the nation-state of the Jewish people, regardless of borders, and as distinct from criticism of Israeli policies regarding territory occupied in the 1967 war. This process constitutes the essence of post-Holocaust or ‘new antisemitism’, as included in the consensus working definition published by the International Holocaust Remembrance Alliance. The NGO campaigns are constructed on the foundations established by the Soviet and Islamic blocs culminating in the 1975 UN ‘Zionism is racism’ resolution. This theme was revived in the NGO Forum of the 2001 Durban Conference, led by Human Rights Watch, Amnesty International, and Palestinian groups such as Al-Haq, and used to justify appropriating the methods of the South African anti-apartheid campaign, including boycotts and lawfare. After the Durban conference and for 20 years since, this NGO network continued and expanded the campaign based on the apartheid and racism allegations. Their claims were amplified in media platforms, international bodies, anti-Israel church groups and on university campuses in the form of ‘Israel apartheid weeks’. European governments enabled activities of the Palestinian and Israeli NGOs through substantial funding, estimated at 120 million Euros annually. In 2020 and 2021, the NGO emphasis on these themes increased, led by HRW, and supporting the decision of the ICC prosecutor to accept jurisdiction over Palestinian claims and to open investigations against Israel. This context amplified the potency of the allegations of apartheid and racism in attempts to demonise Israel.

EVIDENCE IN THE INTERNATIONAL CRIMINAL COURT – THE ROLE OF FORENSIC EXPERTS: THE UKRAINIAN CONTEXT

Background: Ukraine faced unprecedented challenges for to the national justice system and the possibility of using international justice to bring the Russian Federation military, officers,and officials to justice after the full-scale invasion of Ukraine by the Russian Federation on 24 February 24, 2022. Since In March 2022, the ICC Prosecutor has started an investigation of into war crimes in Ukraine. In addition, joint investigative groups are carrying out activities. Cooperation between pre-trial investigation bodies of Ukraine through the Prosecutor General of Ukraine with and the International Criminal Court has been established. Therefore, the research of into possible problems in the criminal procedure of prosecution for war crimes is one of the priority areas for Ukrainian law enforcement practice and legal science. Methods: The present article is devoted to the peculiarities of the ICC international criminal justice, in particular the ICC jurisdiction in the territory of Ukraine (Ukraine has not ratified the ІСС Rome Statute), the ICC model of administration of justice, the rules of admissibility of evidence, the status of experts, and the features of expert involvement during ICC trials. Results and Conclusions: The authors found that several provisions of the joint Order of the Ministry of Internal Affairs of Ukraine, the Ministry of Health of Ukraine, and the Office of the Prosecutor General ‘On approval of the Procedure for interaction between bodies and units of the National Police of Ukraine, health care institutions and the bodies of the Prosecutor’s Office of Ukraine in establishing the fact of the death of a person during martial law on the territory of Ukraine’ dated 9 March 2022 do not correspond to the Code of Criminal Procedure of Ukraine. The authors emphasise that the erroneous provisions of this bylaw could serve as a legal basis for avoiding criminal responsibility for war crimes.

Religious Persecution in Sub-Saharan Africa: Jihadism and ICC Prosecution

The most intense violations of religious freedom have been recently perpetrated in Asia, by governments, and in Africa, by jihadist terrorists linked to intercommunal violence, especially in the Sub-Saharan region. This work focuses on African countries where states have failed to manage the threats to the most fundamental human rights, posed by terrorist groups on religious terms. It analyzes whether and how those atrocities perpetrated by both al-Qaeda and the Islamic State, and their associates, can be prosecuted by the International Criminal Court. For this purpose, the Al Mahdi case constitutes an exceptional precedent regarding jurisdiction, accountability, and judgement.

Conflict-related Sexual Violence in Kenya: A Case Study

The 2007 general elections in Kenya were followed by a period of organized and spontaneous violence. According to the International Criminal Court, crimes against humanity such as murder, deportation or forcible transfer of population, persecution, rape, and other inhumane acts took place in the country. Widespread conflict-related sexual violence reached high levels during the conflict, in both topdown and bottom-up dynamics. This article analyzes the forms of post-electoral violence and the notion of sexual violence as political violence; an 'organizational policy', as suggested by the ICC, or as a practice that is 'tolerated'. It further investigates transitional justice mechanisms applied in the country after the episode, including the work of the Truth, Justice and Reconciliation Commission and the ICC's prosecution strategy. Finally, it discusses the impact of such transitional justice measures regarding conflict-related sexual violence, not only concerning victims and witnesses, but the entire Kenyan society.

The International Prosecutor: Reconsidering an Almighty Saviour? On International Criminal Law’s Obsession with Individuals

Abstract International institutions, like the United Nations and the International Criminal Court (icc), promote peace, democracy and justice. However, these intergovernmental institutions are typically governed through vertical structures and strict hierarchies, with little to no room for popular control and democratic participation of the wider society. The internal structures of these institutions are also revealing: individual high officials, from Secretary-Generals to Chief Prosecutors, play a crucial role, and great importance is attached to their personality and individual leadership skills. This article takes the recent and highly contested election process of the third icc Prosecutor, Karim Khan, who was appointed for a period of nine years in 2021, as a case study to reconsider the well-known yet enduring problem of the democratic deficit of international institutions and their at times undemocratic, or even authoritarian-like, decision-making processes. It starts by demonstrating the great attention given to the Prosecutor as an individual, both in the statute of the icc and in legal-political discourses more generally. This will lay the groundwork to develop the argument that this strong focus on certain individuals is highly problematic and does not contribute to increasing the legitimacy of the Court, whatever the reputation, skills and actual conduct of the official in question. As it will be argued, this disconnect can explain some of the deep-seated challenges and criticisms that the icc, and in particular its Prosecutors, have encountered since its establishment in 2002. Finally, the article seeks inspiration from democracy theory, in particular relevant research that has engaged with international institutions, to suggest that the Office of the Prosecutor could be directed not by an almighty chief, but rather by a panel of prosecutors.

On Implementation of Intersectionality in Prosecuting and Adjudicating Mass Atrocities by the International Criminal Court

This article examines the relevant case law of the International Criminal Court (ICC or Court) in order to assess the actual scope, confines and prospects of taking ‘intersectionality’ perspective in the Court’s prosecution and adjudication of mass atrocities involving discriminatory targeting. While the ICC Prosecutor and judges traditionally resorted to uni-sectional analysis in considering such atrocities, some of the Court’s more recent jurisprudence subsequent to the adoption of the ICC Prosecutor’s Policy Papers on Sexual and Gender-Based Crimes (2014) and on Children (2016) seems to be indicative of a more intersectionality-friendly approach to prosecuting and adjudicating international crimes against different protected groups and their members. In addition to the two Prosecutor’s policy documents - both of which explicitly address the interplay between phenomena of interesectional discrimination and mass crimes in the work of the ICC Prosecutor - the Al Hassan confirmation decision, CARII decisions and Ntaganda reparations order appear to betoken similarly positive developments towards pursuing more intersectional approach in the ICC case law. A critical and chronological assessment of the Court’s intersectionality jurisprudence, however, suggests that it may be too early to say that these recent developments in ICC case law are to be seen as an indication of an emerging trend to give greater and more conscious consideration to the intersectionality phenomena in its rulings. They may just as well simply represent occasional lucid moments in the Court’s reasoning and pronouncement on this complex issue. It is accordingly proposed that the ICC should take intersectionality more seriously in both prosecution and adjudication of international crimes that involve multiple and intersecting forms of discrimination. Having discussed what that might have looked like in some of the earlier ICC case law, the article turns to consider the prospects and space for the ICC to actually implement intersectionality in its future jurisprudence. It looks at potential practical implications of the proposed jurisprudential developments for the Court and for the field of international criminal justice more generally. Finally, the article also reflects on the eventual pitfalls and challenges that such a regular and consistent intersectionality-driven interpretation and application of international criminal law may present for the Court.

On Implementation of Intersectionality in Prosecuting and Adjudicating Mass Atrocities by the International Criminal Court

Abstract This article examines the relevant case law of the International Criminal Court (hereafter icc or Court) in order to assess the actual scope, confines and prospects of taking ‘intersectionality’ perspective in the Court’s prosecution and adjudication of mass atrocities involving discriminatory targeting. While the icc Prosecutor and judges traditionally resorted to uni-sectional analysis in considering such atrocities, some of the Court’s more recent jurisprudence subsequent to the adoption of the icc Prosecutor’s Policy Papers on Sexual and Gender-Based Crimes (2014) and on Children (2016) seems to be indicative of a more intersectionality-friendly approach to prosecuting and adjudicating international crimes against different protected groups and their members. In addition to the two Prosecutor’s policy documents—both of which explicitly address the interplay between phenomena of interesectional discrimination and mass crimes in the work of the icc Prosecutor—the Al Hassan confirmation decision, carii decisions and Ntaganda reparations order appear to betoken similarly positive developments towards pursuing more intersectional approach in the icc case law. A critical and chronological assessment of the Court’s intersectionality jurisprudence, however, suggests that it may be too early to say that these recent developments in icc case law are to be seen as an indication of an emerging trend to give greater and more conscious consideration to the intersectionality phenomena in its rulings. They may just as well simply represent occasional lucid moments in the Court’s reasoning and pronouncement on this complex issue. It is accordingly proposed that the icc should take intersectionality more seriously in both prosecution and adjudication of international crimes that involve multiple and intersecting forms of discrimination. Having discussed what that might have looked like in some of the earlier icc case law, the article turns to consider the prospects and space for the icc to actually implement intersectionality in its future jurisprudence. It looks at potential practical implications of the proposed jurisprudential developments for the Court and for the field of international criminal justice more generally. Finally, the article also reflects on the eventual pitfalls and challenges that such a regular and consistent intersectionality-driven interpretation and application of international criminal law may present for the Court.

Karim Khan’s Appointment As the New Prosecutor of the International Criminal Court: Quo Vadis

An opinion piece on the February 2021 election of Karim Khan from the UK as the new Prosecutor at the ICC (succeeding the current ICC Prosecutor Fatou Bensouda). I argue that the symbolism that Khan as a lawyer of South Asian origin brings to the Office of Prosecutor may change India’s dogged resistance to joining the ICC and in this context, I discuss the role of the ICC in international criminal justice.

The International Criminal Court and the Issue of Intersectionality - A Conceptual and Legal Framework for Analysis

A survey of relevant case law of the International Criminal Court (ICC or Court) reveals inconsistencies, as well as conceptual flaws and limitations in the Court’s mainly uni-sectional approach to mass atrocities that involve multiple and intersecting forms discrimination, in particular with regard to the cornerstones of such cases – the identification of the protected groups and their members. This has resulted in discrepancies and low levels of legal protection against intersectional targeting. Such a cautious, selective and inconsistent approach of the ICC to this issue is unsurprising given that the application of intersectionality in practice is a radical and transformative project. Espousing a more consistent and intersectional approach of the ICC in considering mass atrocities against different protected groups and their members, this article discusses the Court’s legal framework and major conceptual and statutory concerns surrounding the ICC prosecutor’s and judges’ enhanced engagement - through more progressive law interpretation - with the phenomena of intersectionality and key concepts related to it. The main purpose of this contribution is thus two-fold: (1) to demonstrate and explain why, in practice, the focus on intersectional dimensions of such situations and cases in their selection, prosecution and adjudication does not interfere with strict adherence to the principle of legality underlying the Rome Statute, and (2) to analyse the legal grounds and avenues for the Court to implement intersectionality when dealing with atrocities involving intersectional discrimination. It is ultimately suggested that Article 21(3) of the Rome Statute offers a proper and solid legal basis for interpreting and applying pertinent international criminal law in light of intersectionality.

The International Criminal Court and the Issue of Intersectionality—A Conceptual and Legal Framework for Analysis

Abstract A survey of relevant case law of the International Criminal Court (icc or Court) reveals inconsistencies, as well as conceptual flaws and limitations in the Court’s mainly uni-sectional approach to mass atrocities that involve multiple and intersecting forms discrimination, in particular with regard to the cornerstones of such cases—the identification of the protected groups and their members. This has resulted in discrepancies and low levels of legal protection against intersectional targeting. Such a cautious, selective and inconsistent approach of the icc to this issue is unsurprising given that the application of intersectionality in practice is a radical and transformative project. Espousing a more consistent and intersectional approach of the icc in considering mass atrocities against different protected groups and their members, this article discusses the Court’s legal framework and major conceptual and statutory concerns surrounding the icc prosecutor’s and judges’ enhanced engagement—through more progressive law interpretation—with the phenomena of intersectionality and key concepts related to it. The main purpose of this contribution is thus two-fold: (1) to demonstrate and explain why, in practice, the focus on intersectional dimensions of such situations and cases in their selection, prosecution and adjudication does not interfere with strict adherence to the principle of legality underlying the Rome Statute, and (2) to analyse the legal grounds and avenues for the Court to implement intersectionality when dealing with atrocities involving intersectional discrimination. It is ultimately suggested that Article 21(3) of the Rome Statute offers a proper and solid legal basis for interpreting and applying pertinent international criminal law in light of intersectionality.

The International Criminal Court and the Issue of Intersectionality—A Conceptual and Legal Framework for Analysis

Abstract A survey of relevant case law of the International Criminal Court (icc or Court) reveals inconsistencies, as well as conceptual flaws and limitations in the Court’s mainly uni-sectional approach to mass atrocities that involve multiple and intersecting forms discrimination, in particular with regard to the cornerstones of such cases—the identification of the protected groups and their members. This has resulted in discrepancies and low levels of legal protection against intersectional targeting. Such a cautious, selective and inconsistent approach of the icc to this issue is unsurprising given that the application of intersectionality in practice is a radical and transformative project. Espousing a more consistent and intersectional approach of the icc in considering mass atrocities against different protected groups and their members, this article discusses the Court’s legal framework and major conceptual and statutory concerns surrounding the icc prosecutor’s and judges’ enhanced engagement—through more progressive law interpretation—with the phenomena of intersectionality and key concepts related to it. The main purpose of this contribution is thus two-fold: (1) to demonstrate and explain why, in practice, the focus on intersectional dimensions of such situations and cases in their selection, prosecution and adjudication does not interfere with strict adherence to the principle of legality underlying the Rome Statute, and (2) to analyse the legal grounds and avenues for the Court to implement intersectionality when dealing with atrocities involving intersectional discrimination. It is ultimately suggested that Article 21(3) of the Rome Statute offers a proper and solid legal basis for interpreting and applying pertinent international criminal law in light of intersectionality.

The Catalysing Effect of the Rome Statute in Africa: Positive Complementarity and Self-Referrals

The International Criminal Court’s (ICC) policy and practice of self-referrals has attracted some degree of academic criticism. This has been due partly because the procedure itself was, according to some opinions, never quite envisaged in the original Rome Statute, and partly because the concept of a State self-referral appears to contradict the Rome Statute objective of the ICC as a Court of complementarity. Following Gabon’s self-referral in 2016, and in view of the recent termination of the ICC Prosecutor’s Preliminary Examinations in Gabon, this paper argues that African States’ self-referral practice continues to represent a step backwards for African local justice and accountability. The fact that in this particular situation the necessary threshold was not met is actually not relevant for the argument put forward in this paper, namely that this practice should now be put under scrutiny rather than accepting, at face value, a self-referral whenever an (African) State proposes it. The strengthening of local accountability and the transformation of the local justice landscape should be considered as the ICC long-term objectives, and more dialogue (as well as political pressure) should be contemplated in order to gently coerce States to take on investigations and prosecutions of international crimes.

Promoting Deterrence in ICC Prosecutions: A Critical Analysis

Promoting Deterrence in ICC Prosecutions: A Critical Analysis

Autocratic Consent to International Law: The Case of the International Criminal Court's Jurisdiction, 1998–2017

AbstractThis article contributes to an understanding of why autocrats have accepted the jurisdiction of the International Criminal Court. Leveraging their ability to obstruct their own prosecution, autocrats have traded off the risk of unwanted prosecutions against the deterrent threat that prosecutions pose to political rivals and patrons of their enemies conspiring to oust them. The risk of unwanted prosecutions and the court's deterrent threat both arise because ICC prosecutions credibly communicate guilt for international crimes to capital-disbursing democracies, which may, insofar as possible, use leader-specific economic statecraft to prevent the administration of foreign states by those whom the court signals are guilty of international crimes. Analysis using fixed effects and matching shows that a greater reliance on capital publicly financed by democracies increased the probability that a state accepted the court's jurisdiction only when it was an autocracy (1998–2017). ICC jurisdiction also lengthened the tenure of autocrats and reduced the severity of civil conflict in autocracies.

Assessment of the International Criminal Court’s Prosecutor Role in Darfur Crisis, Sudan (the case of Omer Al-Bashir)

In various countries throughout the world when rebel groups make an attack on innocent civilian and commit gross human rights violation, it is not punishable by the national courts. However, in 1998 a grounding breaking idea turned into reality, and 50 years of debate ended as the first International Criminal Court was established as a result of the Rome Statute. The Court entertains or investigates different crimes which are committed in its member’s sates across the world. However, the writers of this paper prefer the situation in Darfur; the case of Al Basher is selected as a context to discuss the role of the ICC Prosecutor. This is mainly preferred because Sudan has been the first situation referred by the Security Council since the ICC was established and the state concerned Sudan is not a party to the Rome Statute, therefore this situation has its particularities compared with others. In spite of this a lot of controversies and misconceptions are being witnessed on the understandings and implementation of international laws in Africa between ICC and African leaders. Basically, the controversy and misconception is not something emanates from the vacuum rather they are generated from various prevailing thoughts. African states accuse ICC as a neo colonialist institution targeting African leaders in addition to alleging ICC as playing double standard role in African and the rest of the world for instance ICC prosecution till now only in Africa in spite of Israel-Palestine and Afghanistan where the western countries have major interest from the conflict. Hence, the analysis of role the International Criminal Court’s Prosecutor in Darfur Crisis, Sudan (the case of Omer Al-Bashir) is centered in line with main objective of the establishing Rome Statue in July 2002 which thrives that all member states of UN have to have the same standard in their respective territories.

Case No. ICC-RoC46(3)-01/18

On September 6, 2018, Pre-Trial Chamber I of the International Criminal Court (ICC or Court) ruled by a majority—Judge Perrin de Brichambaut dissenting—that it has jurisdiction to hear cases concerning crimes that occurred only in part within the territory of a state party to the Rome Statute. In so ruling, the Court granted the ICC prosecutor's request to rule on jurisdiction and confirmed its territorial jurisdiction over the alleged deportation of Rohingya people from the territory of Myanmar (a state not party to the Rome Statute) to Bangladesh (a state party). The Court also affirmed unequivocally its objective international legal personality vis-à-vis non-party states and hinted strongly that the prosecutor should consider the possible prosecution of at least two additional crimes in connection with this situation.

Looking Humanity in the Eye and Seeing its Loss in the Eyes of the ICC: An Evaluation of Daesh’s Destruction of Palmyra using the Gravity Assessment Made by the ICC Prosecutor in the Al Mahdi Case

Santander Art and Culture Law Review » 2019 » 2/2019 (5) » Looking Humanity in the Eye and Seeing its Loss in the Eyes of the ICC: An Evaluation of Daesh’s Destruction of Palmyra using the Gravity Assessment Made by the ICC Prosecutor in the Al Mahdi Case A A A

Prosecutorial discretion and ndependence of the ICC prosecutor

This article explores the investigative phases and initiation of proceedings through to the trial stage and how the ICC prosecutor exercises the discretionary powers and asserts independence.