Core International Crimes Research Articles

Can They Deliver?

Abstract Joint Investigation Teams or JITs are practical mechanisms of cooperation that are established between two or more states to, jointly, conduct criminal investigations. Increasingly used in investigations into core international crimes (war crimes, genocide, crimes against humanity and the crime of aggression), JITs are understudied in the field of international criminal law. This article examines how the procedures outlined in JIT legal frameworks are implemented in practice and assesses whether JITs can respond to the challenges of contemporary international crimes investigations. The article contends that, while JITs introduce some useful new cooperation processes, they fall short on many of their most promising features, which are difficult to implement fully in practice or in fact already exist.

Crimes Against Humanity and War Crimes in Slovakia?

The negative impact of the COVID-19 pandemic on global society both during the crisis and in its aftermath was tremendous. Governments chose various methods to cope with the deathly virus. While some were highly effective, others were not. In Slovakia, the government conducted mass testing of its population. The mass testing was free of charge performed by the government. The testing, using antigen tests, was conducted four times during weekends in buildings housing hospitals, schools, or administrative offices. Although testing was not explicitly obligatory, certain restrictions were applied to those who did not undergo testing. For instance, it prevented free movement of the untested; they were banned from visiting places that the government deemed not necessary or not of fundamental need, such as workplaces, libraries, banks, car service stations, opticians, dry cleaners, post offices, or the gas station. However, groceries, drug stores, or shops selling essential household products could be visited without a certificate of having tested negative for COVID-19.In April 2021, a group of Slovak citizens, calling themselves ‘Order of the Law Fellowship’, filed a complaint with the International Criminal Court stating that the mentioned mass testing conducted by the government, was allegedly part of an involuntary experiment done on the population of Slovakia. The group claimed that the government must be held responsible for allegedly committing crimes against humanity and war crimes, stipulated in the Rome Statute as core international crimes. This article aims to analyse their claims regarding the charges against the government, keeping in mind the character and severity of the core international crimes.

The German Code of Crimes Against International Law at Twenty

Abstract More than 20 years ago — on 30 June 2002 and thus one day prior to the Rome Statute of the International Criminal Court — the German Code of Crimes Against International Law (CCAIL) entered into force and since then allows for the national prosecution of the international core crimes. The most far-reaching innovation of the CCAIL is its broad jurisdictional reach. It is based on the principle of universal jurisdiction and empowers the German judicial authorities to prosecute genocide, crimes against humanity and war crimes even when they are committed abroad and have no specific link to Germany. After some initial hesitation, Germany today plays an active role in the international fight against impunity for core crimes. Prominent examples are the Koblenz torture trial against former members of the Assad Regime, the conviction of Taha Al-J. for genocide against members of the Yazidi community by the Higher Regional Court of Frankfurt and the decision of the Federal Court of Justice on the irrelevance of functional immunities. Sometimes, however, the Higher Regional Courts do not seem to be sufficiently aware of the international dimension and meaning of the cases. This negatively affects the trial management and the communication of the Courts with the (international) public.

Brothers in Arms? The Selection and Prioritisation of Core International Crimes and Terrorism in the Netherlands

Abstract Since 2019, the Dutch Public Prosecutor has tried four cases in which the accused has been cumulatively charged with a terrorism-related crime as well as a core international crime. This article examines the Dutch selection and prioritisation process of these charges when they are combined, comparing it to cases that solely include a core international crime charge and solely include terrorism-related charges. The findings suggest that, as a result of the suspect-driven approach and limited universal jurisdiction in the Netherlands, the available evidence is the most important criterion in the selection and prioritisation process in cases that include core international crimes. Moreover, resources can also be identified as an influential factor, whereas this aspect features less prominently in cases that only include terrorism-related charges. The influence of other criteria, such as gravity, remains ambiguous.

The Prosecutor v Dominic Ongwen: An Examination of the Role of Traditional Justice Mechanisms in International Criminal Justice

Abstract This paper examines whether traditional justice mechanisms have a place in international trials where the accused has committed core international crimes; through the lens of The International Criminal Court’s approach in the Ongwen case. Trial Chamber ix declined to incorporate the mato oput traditional justice mechanism of the Acholi people of Northern Uganda. The paper argues that although concerns have been raised regarding the application of traditional justice mechanisms in the aftermath of mass atrocities, they can still play a significant role alongside prosecutions for international crimes before international criminal tribunals and the International Criminal Court. It recommends ways in which traditional justice mechanisms can be incorporated into proceedings before the icc and concludes that if the Court is to be a truly universal Court as was envisaged at its inception it ought to holistically consider the issues brought before it, particularly from the Global South.

Profiteers of Misery

Abstract Since its hailing as the ‘supreme international crime’ during the Nuremberg Trials, aggression has largely been neglected relative to other core international crimes. However, the escalation of the Russo-Ukrainian War starting in early 2022 is being held as an opportunity to breathe new life into this de facto dormant norm. This article seeks to address novel concerns as to the scope of liability permitted by the crime of aggression, which arise from Russia’s enthusiastic use of private military and security companies (PMSCs) in this conflict. It first overviews the relevant terminology applicable to the use of private armed personnel. It then asserts the value of pursuing accountability for both aggression and PMSCs. The article continues by evaluating the requirements of aggression’s ‘leadership element’, which seeks to restrict liability to high-level leaders. As an illustrative case study, it applies this to the Wagner Group’s military operations in Ukraine. This article confirms that senior corporate officers of PMSCs may, in principle, satisfy the leadership requirement of aggression, opening up the door for their liability and urging closer scrutiny of such matters.

Special issue: Foreign terrorist fighters: Enhancing the synergies between the EU’s internal and external strategies

This introduction aims to serve as a reminder of the main steps in the EU’s growing involvement in the topic, showing that there has been a gradual impact on both the EU’s internal and external policies. It also aims to highlight, in particular, two grey areas in law that have an impact on EU policy in the field. On the one hand, a clear and precise definition of the concept of FTF in international law and European law is missing. This absence blurs the line between FTFs and broader or related concepts, such as foreign fighters. It goes without saying that these two questions are particularly acute in the current context of the war in Ukraine and in the context of a growing involvement of the EU institutions in the field of core international crimes and international criminal justice. To conclude, the structure of the special issue entitled “Foreign terrorist fighters: Enhancing the synergies between the EU’s internal and external strategies” will be presented.

The role of Europol and Eurojust in countering the threat of FTFs: An evolving mandate

Foreign Terrorist Fighters (FTFs) can pose a major security threat to EU Member States as after they return to the EU, they may engage in terrorism-related activities. In order to curb this threat, the EU and the Member States have adopted a multidisciplinary strategy. This article discusses the role that Europol and Eurojust play in supporting Member States in their efforts to combat FTFs effectively, including in their relations with third partners. Their role is particularly necessary in the field of the so-called ‘criminal justice response’, which is one of the core pillars of the holistic approach to address FTFs and consists of investigating and prosecuting crimes allegedly committed by FTFs abroad, including terrorism-related crimes and core international crimes. Aside from the respective role that each agency can play in the fight against FTFs, Europol and Eurojust cooperate closely with each other to scale up the chances of a successful response. Although, both agencies have considerably helped Member States tackle the FTF phenomenon, there are still some challenges which lie in their interagency cooperation when it comes to the collection and use of evidence, and in the lack of cooperation agreements with some significant in the field third partners. Finally, the recent revision of both agencies’ mandate is expected to further enhance the Europol and Eurojust’s capacity in supporting Member States’ efforts to combat FTFs; nevertheless, it raises some concerns as regards the fundamental rights of individuals concerned.

The Joint Investigation Team in Ukraine: An Opportunity for the International Criminal Court?

Abstract During the 2022 Russia-Ukraine war, a joint investigation team (JIT) with members of seven States and a participant from the Office of the Prosecutor (OTP) of the International Criminal Court (ICC) was set up on alleged core international crimes committed in Ukraine. It is an unprecedented development that the OTP joins a JIT with national authorities under the auspices of the European Union Agency for Criminal Justice Cooperation (Eurojust). This essay analyses how the OTP’s participation in the JIT in Ukraine may affect the proactive complementarity of the ICC. It identifies the benefits of a JIT tool and the potential consequences of the OTP’s engagement in a JIT for its independence and impartiality. It argues that despite concerns and challenges, the OTP’s participation in a JIT offers a novel modality of implementing the policy of proactive complementarity through two-track cooperation and assistance.

The Future We Want?

The United Nations (UN) Security Council (UNSC) is endowed with the primary responsibility for the maintenance of international peace and security under Art. 24 (1) of the Charter of the United Nations (UNC). The establishment of the ad hoc criminal tribunals for Yugoslavia and Rwanda in the 1990s under Chapter VII of the unc has shown that individual criminal accountability for international core crimes belongs to the instruments to address threats to or breaches of peace (Art. 39 of the UNC). With the International Criminal Court (ICC) a permanent institution has been established to sanction the commission of international core crimes. Acting under Chapter VII, the unsc is entitled to refer a situation to the ICC according to Art. 13 (b) of the Rome Statute of the International Criminal Court (Rome Statute), as well as to defer proceedings (Art. 16 of the Rome Statute). By using their veto power each of the five permanent members of the unsc might block both types of resolutions. While a veto against an ICC referral resolution might hinder the Court from fulfilling its mandate (destructive veto), blocking a deferral resolution might enable the Court to continue its fight against impunity (constructive veto). This article discusses whether obligations stemming from the unc and other sources of public international law, in particular human rights, might impact the decisions of the unsc and the veto exercise in particular in both cases. It intends to contribute to the ongoing discussion by several reflections on the veto powers, and concludes that, even though the veto powers might be influenced by these legal sources, it will be difficult to guide the conduct of the five unsc Permanent Members (P5) with regard to the ICC.

TERRORISM AS CORE INTERNATIONAL CRIMES : THE CASE OF FOREIGN TERRORIST FIGHTER (FTF) OF ISLAMIC STATE OF IRAQ AND SYRIA (ISIS)

Since it had established a caliphate in 2014, Islamic State of Iraq and Syria (ISIS) continued to threaten the international peace and security by attacking and killing civilians. ISIS foreign terrorist fighters (FTFs) are ISIS members who have combat functions. Altough it is a serious crime, terrorism has not yet been recognized as a stand-alone core international crimes according to customary international law. The fact that ISIS is referred to as a terrorist groups, not a state-entity, has also raised a question of whether ISIS FTFs can only be prosecuted for committing terrorism related offences. This paper argues that terrorism acts by ISIS FTFs can fit the element of the existing core international crimes such as crimes against humanity, war crimes and genocide To this end, this paper elaborates the most common offences committed by ISIS FTFs and analyses element of each of core international crimes. This paper concludes that ISIS FTFs should be held liable for those core international crimes and prosecuted before national and international criminal court accordingly.

Cruel Intentions: Liberal Logics and Processes of International Criminalization

Abstract The prohibition and prosecution of core international crimes are understood as a liberal response to particularly cruel acts that shock the conscience of humanity. But what is the nature of this cruelty and how does it relate to liberalism? Rather than seeing liberalism as monolithic, we examine the different relationships between liberal logics and cruelty and how they manifest in processes of international criminalization. We develop a three-pronged typology of liberalism(s) based on their constitutive relationship to cruelty. The first logic expands upon Judith Shklar's theory of “Liberalism of Fear” that sees cruelty as detrimental to liberal society, foregrounding particularly acute forms of physical and affective cruelty in liberal politics and law; the second logic, “Racial Liberalism,” understands cruelty as a condition of possibility for the liberal order built on the exploitation of racialized others; and the third conceives of cruelty as produced by the market logic of trade-offs, referred to as “Sacrificial Liberalism.” Based on this framework, we examine two processes of international criminalization: the crime of genocide (widely considered to be the “crime of crimes” and thus an emblematic case of criminalized cruelty directed against collective identities) and the crime of aggression (which followed a more complicated criminalization trajectory). By tracing how different liberal logics interrelate, come into tension, and thus shape the processes of international criminalization, we not only illuminate the shifting legitimations and normative priorities of the liberal international order but also confront the normative value of criminalizing cruelty.

The rights of victims of core international crimes to reparation in Nigeria

Generally, the rights to reparation of victims of crime is largely controverted, especially in common law jurisdictions such as Nigeria where there is no express provision conferring or denying such right. With the rising number of victims of core international crimes in Nigeria, there is an increasing need to evaluate Nigeria's disposition to the plight of victims of core international crimes within its jurisdiction in light of the provisions of the Rome Statute. The article evaluates the possibility of the recognition of the right of victims of core international crimes to reparation in Nigeria. Although there are fragmentary provisions in the existing legislation that may be explored to ground the rights to reparations of victims of domestic crimes generally, the flaws and inadequacy of those laws are apparent in the face of the gravity and demands of core international crimes. The article argues that Nigeria owes an obligation to repair the harms suffered by victims of core international crimes in line with the provisions of article 75 of the Rome Statute which unequivocally confers such rights on victims, and the principle of ubi jus ibi remedium. The article concludes by making concise recommendations with respect to legal provisions on victims' rights to reparation in Nigeria in the context of international criminal law.

Evaluating the Practice of Universal Jurisdiction Through the Concept of Legitimacy

Abstract This article examines the practice of universal criminal jurisdiction with respect to the core international crimes, namely war crimes, genocide, crimes against humanity and torture, while using the concept of legitimacy to analyse the grounds for compliance (viz. the implementation and application) with that principle, or lack thereof, particularly with the unconditional form of universal jurisdiction. The concept of legitimacy has been in the centre of the discourse on the effectiveness of public international law since the end of 1980s, and rests on the assumption that a rule that is perceived as legitimate exerts stronger pull for compliance and is subsequently likely to be exercised more effectively than a rule which is regarded as illegitimate. The added value of the article to the debate on universal jurisdiction lies with its methodical breaking down of legitimacy into three heads: legitimacy of source, legitimacy of process and legitimacy of outcome, which provides new insights and perspectives regarding the much-contested universal jurisdiction practice. The article starts with discussing different approaches to legitimacy and then moves to apply them to the principle of universal jurisdiction as generally practised over the last two decades, using the three-head-taxonomy of legitimacy of source, legitimacy of process and legitimacy of outcome, as well as the typology offered by Thomas Franck of the factors influencing a norm or an institution’s perception as legitimate.

Prosecuting Crimes against Humanity and Genocide at the International Crimes Tribunal Bangladesh: An Approach to International Criminal Law Standards

Bangladesh is recently prosecuting and punishing the perpetrators of crimes against humanity and genocide committed in the Liberation War of 1971 via a domestically operated tribunal, namely the International Crimes Tribunal Bangladesh (ICTB). Though the Tribunal is preceded under municipal law, its material jurisdiction, i.e., crimes against humanity and genocide, originated from international criminal law. Therefore, this study examines several legal obligations of the ICTB in defining crimes against humanity and genocide as the core international crimes. First, I discuss several legal flaws of the Tribunal by defining crimes against humanity and genocide under the ICTB Statute and jurisprudence. Second, I scrutinize the legal status of international (treaty and customary) laws in Bangladesh’s legal system. Third, by applying international criminal law standards, I focus on the idea that it is one of the obligations of Bangladesh to apply international criminal law definitions of genocide under the treaty obligation as the contracting parties to Genocide Convention 1948, and the ICC Statute 1998. Fourthly, I also discuss whether Bangladesh has any obligation to apply customary international law definition of crimes against humanity because crimes against humanity are considered jus cogens offenses in general international law, from which no derogation is permitted. Lastly, I conclude that Bangladesh Tribunal failed to fulfill its legal obligation to define international crimes under the treaty and customary laws and forward a way to be implemented to improve the legislative system of Bangladesh and harmonize it with international legislation.

Hate Crimes Against Minorities in India

Abstract Violence against Muslims and Dalits in India has drastically increased since the incumbent political party, the Bharatiya Janata Party (BJP), came to power in 2014. Around 85% of perpetrators are alleged to have been associated either with the BJP or its sister Hindu organizations. In at least some cases, law enforcement agencies have been either indifferent or hostile to the victims. Such crimes may be considered as hate crimes, yet an understanding of this concept — as a tool which accounts for the criminality of individual acts while appreciating the systemic prejudices that motivate them — is lacking in Indian law. This warrants consideration of international criminal law, as a discourse which may complement and support domestic reform, since hate crimes constitute an inhumane affront to the values of dignity and liberty which underlie international core crimes. In this context, this article examines whether the elements of crimes against humanity, particular those of murder and persecution, may be applied to the recent events in India.

Law Development by the International Criminal Court as a Way to Enhance the Protection of Minorities - The Case for Intersectional Consideration of Mass Atrocities

Mass atrocities almost invariably involve the targeting of racial, ethnic, religious and/or political groups. Other groups, such as homosexuals, have also been vulnerable to targeted destruction. Both experience and international case law demonstrate that atrocity crimes have mostly been inflicted on minorities within minorities. With individuals being targeted on several personal grounds or due to overlapping identities (for example, women and girls belonging to ethnic or religious minorities) there is a strong case for both scholarship and international criminal judiciary to develop an expertise on intersectional discrimination in the context of international crimes that implicate discriminatory intent of a perpetrator. Yet, the International Criminal Court (ICC or Court) has tended to consider atrocities motivated by discrimination on isolated discriminatory grounds and independently from each other. As a prescriptive contribution, the present article challenges this trend by arguing that in more complex criminal cases the protected characteristics need to be considered together with, and not separately from, one another, in order to capture the multi-faceted experiences of mass abuses. Underlying the treatment of the subject matter are thus two basic questions: first, given a full respect for the principle of legality (nullum crimen sine lege), what are the possible avenues for international criminal adjudication to recognize intersectionality so as to overcome conceptual flaws and limitations of single-issue analysis of discrimination in cases involving core international crimes against minorities? For example, can Article 21(3) of the Rome Statute on the interpretation and application of substantive international criminal law in light of international human rights standards serve as a viable tool for the Court to evolve its jurisprudence on this particular issue? Second, how and to what extent should the Court take intersectionality into consideration in the formulation of charges; identification and interpretation of applicable law; determination of criminal sentence; ordering adequate remedies (reparations) for victims; and in considering such aspects as the gravity assessment, or the contextualisation of crimes? Answering these questions, the article shows that by applying, interpreting and, when need be, developing international criminal law in a way that utilizes intersectionality the ICC can make in these areas important jurisprudential contributions with far-reaching socio-legal implications.

Law Development by the International Criminal Court as a Way to Enhance the Protection of Minorities—the Case for Intersectional Consideration of Mass Atrocities

Abstract Mass atrocities almost invariably involve the targeting of racial, ethnic, religious and/or political groups. Other groups, such as homosexuals, have also been vulnerable to targeted destruction. Both experience and international case law demonstrate that atrocity crimes have mostly been inflicted on minorities within minorities. With individuals being targeted on several personal grounds or due to overlapping identities (for example, women and girls belonging to ethnic or religious minorities) there is a strong case for both scholarship and international criminal judiciary to develop an expertise on intersectional discrimination in the context of international crimes that implicate discriminatory intent of a perpetrator. Yet, the International Criminal Court (ICC or Court) has tended to consider atrocities motivated by discrimination on isolated discriminatory grounds and independently from each other. As a prescriptive contribution, the present article challenges this trend by arguing that in more complex criminal cases the protected characteristics need to be considered together with, and not separately from, one another, in order to capture the multi-faceted experiences of mass abuses. Underlying the treatment of the subject matter are thus two basic questions: first, given a full respect for the principle of legality (nullum crimen sine lege), what are the possible avenues for international criminal adjudication to recognize intersectionality so as to overcome conceptual flaws and limitations of single-issue analysis of discrimination in cases involving core international crimes against minorities? For example, can Article 21(3) of the Rome Statute on the interpretation and application of substantive international criminal law in light of international human rights standards serve as a viable tool for the Court to evolve its jurisprudence on this particular issue? Second, how and to what extent should the Court take intersectionality into consideration in the formulation of charges; identification and interpretation of applicable law; determination of criminal sentence; ordering adequate remedies (reparations) for victims; and in considering such aspects as the gravity assessment, or the contextualisation of crimes? Answering these questions, the article shows that by applying, interpreting and, when need be, developing international criminal law in a way that utilizes intersectionality the ICC can make in these areas important jurisprudential contributions with far-reaching socio-legal implications.

Responsibility of companies in international criminal law

In the paper, after outlining the criminological background, namely the corporate criminality in the field of core international crimes and some possible arguments in favour of criminal accountability of corporations on an international level, the case law of the International Military Tribunal at Nuremberg and the so-called subsequent Nuremberg trials is introduced. Finally, the third part is devoted to examine the questions of the codification process of the Statute of the International Criminal Court in relation to the organizational liability, putting the emphasis on answering the question: was there and is there an international court or tribunal that can exercise criminal jurisdiction over corporations?

The International Criminal Court: Between International Ius Puniendi and State Delegation

A series of controversies that have structured the life of the International Criminal Court and which are often discussed separately can be traced to fundamental disagreements about the foundations of its authority. For some, the Court further crystalizes a sort of ius puniendi of the international community that is a direct continuation of the commitment to repress certain fundamental international crimes; for others, the key to the Court’s authority is, if anything, better understood as a function of sovereign delegation and agreement. The article explores the merits of these theories of both international criminal law and jurisdiction, both as theories and in light of the actual practices of international criminal justice. It may well be that an international ius puniendi can be said to exist in the abstract, and when it comes to core international crimes and the need to repress them. Even if the origin of some cardinal international criminal prohibitions is conventional, these prohibitions may have become so ingrained in the international legal order as to become inherent to it. But the public order and universal character of international crimes does not necessarily or easily translate to whatever particular institutions are devised to punish them. The article suggests, in this context, that on balance the practices of the Court are still better understood as a direct function of State consent. This is true when examining both the practice of the ICC towards non-States Parties and, crucially, towards States Parties. To see the Court as ‘merely’ the Court of its States Parties, however, is not to give up on the idea of universal repression, but to see it as mediated in practice by the complex agency of those States that pursue that aim.