ICC Statute Research Articles

The Ongwen Judgments

Abstract The Ongwen trial and appeal judgments are an affront to child soldiers everywhere and to international criminal justice. The judgments fail to treat Mr Dominic Ongwen as an individual within his own social context, in which culture and race are significant factors. The Chambers invisibilized the victimization of Mr Ongwen within the cruel and ruthless conditions of the Lord’s Resistance Army (LRA) as a child and young adult. Seeking justice for Mr Ongwen and ensuring he had a fair trial has been a Sisyphean struggle for the defence counsel, who have tried to humanize the lived experience of our client within the courtroom of the Hague. The Chambers acknowledged the brutality and bestiality of the LRA, led by Joseph Kony, yet created an ‘Ongwen Exception’ that dehumanized him as detached from the Court’s previous rulings on the long-term social and psychological effects of being forcibly recruited as a child soldier. In these observations, the Defence discusses Mr Ongwen’s social context, emphasizing the importance of culture and race within it, and the dangers of the Chambers’ rote and narrow interpretation of Article 26 ICC Statute, which underlies Mr Ongwen’s convictions.

The Biological Weapons Amendment to the ICC Statute and National Provisions

Abstract After a contentious path, the amendment incorporating biological weapons into Article 8 of the ICC Statute was finally adopted in 2017. Since then, 18 states have ratified the amendment. This article examines the amendment in light of national provisions addressing the use of biological weapons in armed conflict. By discussing the national provisions before and after the amendment, it is possible to determine the effect of the amendment on subsequent national provisions. Combined with an analysis of states’ rationale for adopting relevant legislation, it is possible to assess the impact on state practice and consequently understand the significance of adopting an amendment to the ICC Statute and incorporating it into national legislation for the development or confirmation of customary international law. The lessons learned in the process could be applied to other existing or future amendments.

이른바 ‘정범 배후의 정범’에 대한 일고(一考) - ｢국제형사재판소에 관한 로마규정｣ 제25조 제3항 ⒜의 해석과 관련하여 -

According to Article 25 ⑶⒜ of the ICC Statute, indirect perpetration requires that the perpetrator commits the offence ‘through another person’, regardless of whether that another person is criminally responsible. In this regard, the decisions of the ICC note that, the provision appears to contemplate two possible forms of indirect commission: one arising from a person as a mere instrument who does not bear criminal responsibility and another brought about by a criminally responsible person charged with an intentional crime (‘the perpetrator behind the perpetrator’). Furthermore, the ICC interprets the concept of ‘the perpetrator behind the perpetrator’ to include using an organised apparatus of power for making another person commit a crime (‘perpetrator’s ccontrol over an organisation’). Such an interpretation is based on the terms of of Article 25 ⑶⒜ of the ICC Statute, but above all, it is meaningful in that it values the aims of of the ICC Statute. Such teleological interpretation is thought to have great implications for understanding the characteristics of the perpetration by means, but it would be difficult to recognize ‘the perpetrator behind the perpetrator’ as a form of indirect perpetrator pursuant to Article 34 ⑴ of the Korean Penal Code. However, if the conceptual extension of an indirect perpetration is considered to affect the aggravated forms of abetting the commission of a crime under Article 34 ⑵ of the Korean Penal Code, ‘the perpetrator behind the perpetrator’ can be discussed as indirect perpetration pursuant to Article 34 ⑵, so to speak, as indirect perpetration in a broad sense.

The Missed Opportunity to Africanise the International Criminal Court: An Appraisal of the Case of Prosecutor v Dominic Ongwen

More than twenty years have passed since the establishment of the International Criminal Court (ICC), by means of the Rome Statute (ICC Statute). Of the 120 states, thirty-three are from the African continent. The ICC is often perceived as being Eurocentric and retributive in nature. This is because it is often insensitive to cases from the African continent. The case of Prosecutor v Dominic Ongwen, which is the focal point of this article, illustrates this point. Ongwen, a former child soldier who became a warlord in the Lord’s Resistance Army committed numerous crimes under international law and was sentenced to twenty-five years imprisonment. His case was complex and required a wider approach than the retributive position adopted by the ICC. African traditional justice mechanisms were generally overlooked. This article resents this approach taken and proposes that the ICC should have taken a more Africanised stance in this case. The article aims to contribute to the field of research on the Africanisation and decolonisation of international criminal law.

Reparations in environmental cases: should the International Criminal Court consider the Inter-American Court of Human Rights’ jurisprudence?

Abstract In a context where supranational courts order reparations in environmental cases, this article examines whether the International Criminal Court (ICC) should pay attention to the Inter-American Court of Human Rights (IACtHR) reparations jurisprudence in environmental cases. The ICC has yet to engage with environmental cases and order ensuing reparations. However, the ICC Statute contains an environmental war crime, ‘ecocide’ may be incorporated into it, and some ICC cases/ICC complaints involved environmental damages. This article examines constraints of a potential extrapolation of IACtHR’s reparation jurisprudence to the ICC’s reparations system in environmental cases: differences between IACtHR’s and ICC’s mandates, particularly their reparations systems; and potential backlash from states/other actors vis-à-vis ‘green’ reparations jurisprudence. This article also provides justifications for ICC/IACtHR cross-fertilization: international human rights law is embedded in ICC’s reparations law and practice, and need for a coherent international law of reparations in environmental cases across supranational courts. Through adapted cross-fertilization, the ICC’s reparations system should consider IACtHR’s reparations practice concerning environmental cases.

The Forcible Transfer of Children from Ukraine as Genocide

Abstract On 17 March 2023, Pre-Trial Chamber ii of the International Criminal Court (icc) issued secret warrants of arrest for President Putin and the Commissioner for Children’s Rights in the Office of the President of the Russian Federation, Ms. Lvova-Belova, for the commission of the war crime of forcible transfer of children. This article argues that there are “reasonable grounds to believe”, as the icc Statute requires for the arrest warrant stage, that both Putin and Lvova-Belova bear individual criminal responsibility for the forcible transfer of Ukrainian children as a crime of genocide; however, two types of considerations – general and particular – prevented the issuing of arrest warrants for genocide crimes. In Section 2, after a short historical-legal review of the formulation of Article 2(e) of the Genocide Convention (gc), the article notes that despite the significant number of cases of children being transferred and removed from their families that have taken place since the gc was adopted, the provision has been dormant and considered anachronistic and was rarely applied by an international or a local court. Section 3 proceeds with a legal analysis of the elements of the crime of the forced transfer of children and the genocidal special intent. Section 4 parses the case study of the forcible transfer of children from Ukraine as a crime of genocide. Section 5 analyses the litigation of the crime of genocide in the icc through the only case of genocide the court has addressed so far: the arrest warrant for Sudan’s former president, Omar al-Bashir. Section 6 concludes with a forecast that despite the sufficient legal basis for issuing arrest warrants for Putin and Lvova-Belova, practical and political considerations would impede the icc from doing so.

The Conventional Definition of Genocide

This work comprehensively analyzes the legal definition of genocide. In so doing, it details the material and mental conditions that can lead to an individual’s punishment for the commission of the crime of genocide. Further, it addresses some of the difficulties that have arisen when interpreting and applying the legal rule. To this end, this work starts by presenting the basic structure of the crime of genocide, and also the goals of its legal prohibition. It then concentrates on the material element (actus reus) of genocide, placing emphasis on two difficulties; namely, the notion of the group, and how to identify the four protected groups. In addition, the conduct prohibited by the Convention is detailed. This work then focuses on the mental element (mens rea) of the crime, examining each term from the Convention’s formulation separately in order to better assess the concept of specific intent. This work then considers the meaning of article 30 from the ICC Statute. Ultimately, this work details the conventional definition of genocide and reveals some of the main interpretative challenges associated with it.

International Criminal Justice at the Russia-Ukraine Crossroads

Abstract The international community’s judicial response to the aggression of Russia against Ukraine in February 2022 and to the ensuing conflict is unprecedented in many ways. This article focuses on the investigations into the commission of war crimes and other serious international crimes conducted by Ukrainian authorities, other national authorities, various international bodies and the International Criminal Court (ICC), whose jurisdiction was triggered by a referral by 43 States parties to the ICC Statute. Some critical remarks are offered on the ambivalent relationship between Ukraine and the ICC. Ukraine is not a party to the ICC Statute, but the Court can exercise its jurisdiction by virtue of two ad hoc declarations rendered in 2014 and 2015. Despite the time that has elapsed since these declarations, Ukraine has not yet ratified the Statute and its government seems oriented to exploit the ICC mainly in an anti-Russian perspective. More in general, the huge efforts put in place by the international community in the investigation of international crimes committed in the ongoing conflict in Ukraine are disproportionate when compared to all other situations investigated and are already attracting criticism about selective justice. Such efforts represent on the one hand a potential model for a coordinated intervention in situations where mass atrocities are committed, on the other hand they are likely to remain isolated and confirm the perception that international criminal justice and the ICC are instruments in the hands of a few States.

Patterns of State Behaviour and Cooperation with the ICC: Whither Nigeria, Ghana and Senegal

African states manifest inconsistent patterns of behaviour showing a mix of credible commitment and sham devotion to their obligation to cooperate with the International Criminal Court (ICC). This study poses a question: what will be of the status of Nigeria, Ghana and Senegal regarding cooperation with the ICC by 2022, considering their pattern of behaviour so far, evidence from data and the spate of domestication and exit procedures in homogeneous African states in contemporary times? It finds that: the pattern of Nigeria's behaviour shows sham devotion and predicts that she will not domesticate the ICC Statute by 2022; the pattern of Ghana's behaviour straddles credible commitment and sham devotion and she may enact her its Rome Statute Bill 2016 or remain a mere ratifier by the end of 2022; and the pattern of Senegal's behaviour shows credible commitment and she will remain in cooperation with the ICC by 2022.

«Aggression» as an imperative norm of international law: genesis of development

The article reveals the essence of «aggression» as an imperative norm of modern international law. Attention is focused on the fact that despite the prohibition of aggression by the imperative norms of international law and its recognition by the international community as an international crime, a universal definition of aggression has not yet been adopted. Consideration of the essence of aggression by analyzing the provisions contained in the UN Charter, the Declaration of Principles of 1970 and the Helsinki Final Act of 1975 require some clarification and expansion. The definition proposed by the UN General Assembly Resolution No. 3314 needs to be confirmed by convention, as the resolutions of the UN General Assembly have the nature of soft law. The provisions of the Resolution can be transformed into customary norms of international law, however, the fact of the transformation of the provisions of this resolution into customary norms at the current stage is debatable and requires additional justification. It is noted that the definition of aggression is also contained in the ICC Statute, however, this statute has been adopted by a relatively small number of states, so these provisions are not mandatory for non-participating states. In addition, the Court has jurisdiction to administer justice and render appropriate judgments only in relation to natural persons. Therefore, today there is an urgent need to adopt a definition of aggression at the universal convention level, which will contribute to the prevention of the international crime of aggression and increase the effectiveness of combating it. It is indisputable that the prohibition of aggression acquires its imperative status through its inherent rationalism and moral authority instead of state consent.

Fertile or Futile Grounds for Excluding Criminal Responsibility? A Critical Analysis of the Ongwen Judgment in Relation to the Claim of Coercive Environment

Abstract Dominic Ongwen was convicted and sentenced for numerous atrocities by the International Criminal Court (icc) in 2021. The Defence focused on the coercive environment that Ongwen was subjected to from his abduction as a boy until his surrender as an adult. The icc rejected the claim of duress as a ground for excluding criminal responsibility in the context of a past and present coercive environment. This article examines how the icc interpreted and applied duress in the Ongwen case and evaluates whether a coercive environment can be categorised as a unique defence in the icc Statute. This is done by scrutinising whether a coercive environment has been raised as a defence in domestic jurisdictions. This paper shows that national courts have not recognised a defence specific to crimes committed in a coercive environment and thus concludes that no such defence can be used by defendants before the icc.

THE INTERNATIONAL CRIMINAL COURT AND AFRICA: AN END TO ATROCITIES?

Intentional killings, destruction and extermination of entire groups; widespread or systematic attack directed against civilians pursuant to state policy or that of other organisations; disregard for human rights; war crimes and acts of aggression, have ravaged the world in general and the continent of Africa in particular. The atrocities in Rwanda prompted UN Secretary-General Kofi Annan to conclude that “man’s capacity for evil knows no limits”. On 2 September 1998, the International Criminal Tribunal for Rwanda (ICTR) in The Prosecutor v Jean-Paul Akayesu (Case No CTR-9-4-T) found the accused guilty of genocide. The tribunal concluded that genocide was indeed committed in Rwanda in 1994 against the Tutsi as a group, and that the genocide appears to have been meticulously organised. Ethnic and religious tension continues to plague other parts of Africa, such as the Hutu/Tutsi conflict in Burundi and Christian/Muslim friction in Nigeria. Chad, Sudan, Uganda, Sierra Leone, Ivory Coast, the Democratic Republic of Congo (DRC) and the Central African Republic (CAR) have all been wracked with protracted civil wars.It is reported that the Congolese rebel leader Jeanne-Pierre Bemba is likely to be the first to be investigated for prosecution before the International Criminal Court.The situations in Angola and Liberia testify to atrocities which in international law can be classified as war crimes and crimes against humanity. According to a Business Day report Zimbabwean NGOs have threatened ICC action against the Zanu-PF elite.
 The commission of grave atrocities on the continent has, however, not been limited to conflict situations. The terror under the rule of Amin and Obote of Uganda, Bokassa of the CAR, Habre of Chad, Mengistu of Ethiopia, Nguema of Equatorial Guinea, and Mobutu of the DRC illustrate that gross human rights violations in Africa have not necessarily only occurred during times of war.Also significant is the fact that the International Criminal Court (ICC) Statute includes apartheid (defined in a 7(2)(h) “as inhumane acts committed in the context of an institutionalised regime of systematic oppression and domination by one racial group over any other racial group or groups and committed with the intention of maintaining that regime”) as a category of crimes against humanity. In no other continent has the effect of apartheid been felt like in Africa. Until a little over a decade ago apartheid was institutionalised in South Africa.

PROSPEK HUKUM PIDANA INTERNASIONAL DAN TANTANGAN POLRI

Changes and developments in the national, regional, and global environment have triggered the rapid development of transnational crime, in this context, the Indonesian National Police (Polri) with the authority to act as state apparatus and law enforcer is the spearhead and front guard of the criminal justice system in eradicating transnational crime. Related to the foregoing, the applicability of International Criminal Law and its application in Indonesia is still an unresolved problem. In connection with the above, in terms of reviewing and analyzing related to the prospects of international criminal law and challenges to the Indonesian National Police, the author use normative juridical research methods using library research. The Juridical-Normative research method is a research method that places legal principles and legal rules as a touchstone to assess whether there was actually a violation or not. So, it can be concluded that there is a need to strengthen and develop international criminal law which is supported by comparative studies and activities in the framework of comparative law or comparative study of international criminal law studies at S1 STIK-PTIK. In the Elucidation of Article 7 of the Human Rights Court Law, it is stated that “the crimes of genocide and crimes against humans in this provision are in accordance with the Rome Statute of the International Criminal Court (Article 6 and Article 7)”. This provision raises the consequence that the legal spirit, interpretation, elements, and application must follow and comply with the provisions contained in the ICC Statute. In the course of the following, several serious human rights violations have been examined and tried based on the Human Rights Court Law with the establishment of an Ad Hoc Human Rights Court, such as the East Timor Post-Ballot case and the Abepura case.

THE ROME STATUTE: A CRITICAL REVIEW OF THE ROLE OF THE SWGCA IN DEFINING THE CRIME OF AGGRESSION

The main theme of this study is how the Rome Statute was created and why, even though article 5 of the ICC Statute brought the prosecution of crimes of aggression under its purview, the court's jurisdiction over such crimes was postponed. In addition, the Special Working Group on the Crime of Aggression (SWGCA), which was particularly influenced by the precedent set by the Nuremberg and Tokyo tribunals, considered the facts and the decisions made in reaching the final description for the crime of aggression. The study will also discuss recent cases involving crimes of aggression that upheld the fundamental rule of individual accountability under international criminal law. The qualitative research methodology has been applied on following article.

Some problems related to the supervision of the activities of the International Criminal Court

The article deals with the problems related to the supervision of the activities of the International Criminal Court, including some aspects of the activities of one of the mechanisms of control and supervision of the work of the International Criminal Court – the Independent Oversight Mechanism. The author examines in detail how the activities of the ICC affect the interests of the Russian Federation and other countries, and also analyzes the possibilities for the state to monitor and supervise the activities of the ICC if the ICC Statute has not been ratified and the country is not a State party. The author considers the recommendations made by the expert group concerning the work of the Independent Oversight Mechanism. The object of the study is the social relations developing in the field of activities of officials of international criminal justice bodies related to the work of an Independent oversight Mechanism. Topics related to the responsibility of officials of international judicial institutions, their accountability, as well as the control and supervision of their activities have been little studied. Meanwhile, although Russia is not a State party to the ICC Statute, nevertheless, the judicial acts of this international judicial body have an impact on the reputation of the state. The author comes to conclusions, firstly, about the need to develop scientific thought in this direction, in order to increase the effectiveness of protecting state interests, and secondly, about the possible consideration of an initiative to create an independent monitoring mechanism that would function within the framework of the UN Security Council.

Accessory After the Fact at the International Criminal Court?

Abstract It has generally been understood that international criminal law recognizes ex post facto aiding and abetting as a mode of liability but not the standalone offence commonly known, in many states, as accessory after the fact. However, as this article reveals, the authentic Spanish text of Article 25(3)(c) of the Rome Statute of the International Criminal Court (‘ICC Statute’) includes the word ‘encubridor’ which — as a comparative analysis of the Criminal Codes of Spanish-speaking countries confirms — is the Spanish language legal equivalent of a person that is an accessory after the fact. Yet, nothing in the authentic English text of Article 25(3)(c) — the version that most of the international criminal law scholarship and the International Criminal Court (‘ICC’) have focused on — alludes to this. To resolve this substantive discrepancy, Article 25(3)(c) is considered across all authentic languages (Arabic, Chinese, English, French, Russian, and Spanish) and in light of Articles 31–33 of the 1969 Vienna Convention on the Law of Treaties in a manner consistent with the rights of the accused. This article concludes that the mentioned discrepancy is unique to Article 25(3)(c) in the authentic Spanish language, most likely the result of an error, and that the concept of ‘accessory after the fact’ should not be applied at the ICC. That Article 25(3), a provision that has featured in so many ICC decisions and judgments and spawned so much academic writing, has contained such a glaring and seemingly undetected error for over 24 years ought to compel commentators, academics, and practitioners to look beyond the working languages of the ICC — English and French — when analysing, interpreting, and applying the ICC Statute.

Russia’s Attack on Ukraine; A Review of the International Criminal Court’s Capacity to Examine the Crime of Aggression

Background: 24 February 2022 shall be remembered as a day on which the international law principle prohibiting the use of force was breached once again. This incident could come under scrutiny from several different standpoints. The present study looks at this occurrence via the lens of international criminal law and the occurrence of the crime of aggression and its examination by the International Criminal Court (ICC). This study aims to analyse whether the inclusion of the crime of aggression in the ICC Statute was symbolic and practically useless or whether it could move the international community one step closer to the end of impunity. To this end, the incidence of aggression as defined by the ICC Statute will be determined after an assessment of the justifications offered by Russia. Despite the prohibition entailed in Art. 15 bis (5) of the Statute, which has led the doctrine to rule in favour of the Court’s lack of jurisdiction, a solution to this impasse must be sought. Methods: This paper uses doctrinal methods, and its dominant theoretical perspective is positivism. It relies on an accurate description and analysis of Russia’s invasion as aggression and the capacity of the court to deal with it. The authors has attempted to collect as much pertinent data as possible, analyse the same, and review the applicable and relevant legal instruments and literature. Other publications on this subject matter accepted the inability of the ICC to prosecute the Russian aggression. The novelty of this paper is its search for the few loopholes in the rules and judgments of the ICC to investigate this crime in Ukraine. As a result, recommendations are made to stop Russia’s wrongdoing while also offering suggestions and answers. This would ultimately result in the protection of international law and the preservation of Ukrainian territory. Conclusions and Recommendations: The Russian claims, namely, anticipatory and collective self-defence, humanitarian intervention, and intervention by invitation, cannot face the crucible of international law norms, and, as such, the attack is a flagrant violation of the UN Charter. Thereafter, the exercise of jurisdiction seemed challenging, bearing in mind that Russia and Ukraine are not members of the IC, that the situation was not referred to the Security Council, and that the declaration issued by Ukraine accepting the Court’s jurisdiction entailed a number of limitations (being restricted to crimes against humanity and war crime). Nonetheless, a case could be made that the Court has some capacity to engage with the question of an act of aggression based on a study of the Court’s jurisprudence regarding such declarations and the Trial Chamber’s interpretation of the phrase ‘occurrence of crime in the territory of the State Party’, affirming a positive interpretation of Art. 15 bis (5) and confirming the possibility for the presence of Ukrainian secessionists in the decision to attack. According to the authors, the following recommendations merit attention: 1) the necessity of a teleological interpretation of the Statute’s articles by the Prosecutor and the Member States Assembly’s solemn efforts to amend and deal with jurisdictional burdens in the Court’s competence to entertain the crime of aggression; 2) reviewing the possibility of establishing an ad hoc or hybrid tribunal via an agreement between Ukraine and the UN; 3) consistent state practice in not recognising the auto-proclaimed governments at Donetsk and Luhansk; 4) establishing Russia’s civil liability and the payment of proper compensation by the same.

The Draft Italian Code of International Crimes

Abstract In a major effort of coordination, on 31 May 2022, the Committee of Experts appointed by the Italian Minister of Justice delivered the draft Italian ‘Code of International Crimes’ (CIC), whose purpose is to fully implement the Rome Statute into the domestic legal system by adopting substantive legislation on international crimes. The aim of this article is to give an account of the work of the Committee, outlining the prospective legislation and presenting the choices made within the process of implementation. The draft Italian law analysed here represents one example of the different implementation processes which followed the adoption of the ICC Statute, both with respect to the chosen method of implementation — the adoption of an ad hoc code of international crimes — and with respect to some substantive choices, such as the introduction of the crime of cultural genocide and the responsibility of legal persons for international crimes. Ensuring coherence with the fundamental principles of the domestic legal system was of course of utmost importance and guided the entire Committee’s work, in light of the state’s margin of appreciation within the implementation process. In this sense, the implementation process underlying the draft CIC entailed both a transposition of concepts and elements of the ICC Statute into the domestic legal order (internationalization of national laws) and their adaptation to the specific features of the domestic system (nationalization of international criminal law).

Legal Effects of the Ratification by Italy of the Amendments to the icc Statute on Aggression

Abstract Through the adoption of Law No. 202/2021 on the ratification of the amendments to the Statute of the International Criminal Court, among other things Italy accepted the icc’s jurisdiction over the crime of aggression. This comment argues that with respect to proprio motu investigations and States Parties’ referrals, the scope of such jurisdiction depends on the interpretation of Articles 15bis(4) and 15bis(5) of the Statute. The ratification has two additional implications. First, conducts committed by Italian nationals in the context of international military operations may be scrutinized by the icc. Second, the Italian legislator should enact domestic legislation criminalizing the crime of aggression in order not to incur the violation of an obligation to cooperate with the Court pursuant to Part 9 of the Statute.

Achieving Justice for Child Survivors of Conflict-related Sexual Violence in the Democratic Republic of the Congo in Light of the Kavumu Case

Abstract In this article, the author questions some assertions on issues of international and Congolese criminal law made in the context of an article published in a Special Issue of the Journal on ‘Justice and Accountability for Sexual Violence in Conflict: Progress and Challenges in National Efforts to Address Impunity’. While he credits the article with helping to bring to the attention of a wider audience the atrocities experienced by the victims of the Kavumu case — and thus contributing to the overall justice-effort on their behalf — he notes a few areas of legal concern, including: (i) the impact of Article 27(2) ICC Statute on parliamentary immunities in prosecuting crimes under the Rome Statute before national courts; (ii) the determination of liability of the accused when military judges have failed to identify direct perpetrators of crimes or the group to which they belong; and (iii) the relationship between the forms of criminal responsibility of individuals that make up the leadership of an organization and the policy element of crimes against humanity attributed to that organization. In sum, the article seeks to investigate to what extent the judicial reasoning in this case may have contributed to clarifying the provisions of the ICC Statute as applied by military judges in Congolese courts.