International Criminal Court Research Articles

Assessing War Crimes Accountability Through Just War Theory: A Comparative Legal Analysis of the Russia-Ukraine Conflict

Abstract: With the great power games and the continued escalation of the Russia-Ukraine conflict, the international community has paid great attention to the issue of war crimes, prompting the war crimes accountability mechanism to become an important topic in the field of international law. This new type of war crimes accountability mechanism is an intertwining of the theory of just war and the applicability of international law, reflecting the complex global scrutiny of legal responsibility and moral constraints in conflicts under the current complex geopolitical factors. Against this backdrop, the International Criminal Court (ICC), national courts, and relevant institutions are attempting to build an effective accountability network to pursue war crimes through legal means. How to assess the accountability mechanism for war crimes through the just war theory and how the applicability of international law affects the justice of war will become an important factor in promoting universal adherence to international law and upholding the justice of war.

‘Please, get me called to The Hague!’ The international criminal court as history’s soapbox

‘Please, get me called to The Hague!’ The international criminal court as history’s soapbox

Yurisdiksi Mahkamah Pidana Internasional Terhadap Penegakan Hukum Bagi Pelaku Kejahatan Perang Yang Bukan Negara Pihak Statuta Roma 1998

Introduction: The establishment of a permanent International Criminal Court (ICC) has opened a new history in law enforcement crimes of genocide, humanity, war, aggression. The Roma Statute of 1998 became the constitutional basis for International Criminal Court.Purposes of the Research: To find out the jurisdiction of the International Criminal Court to enforce the law for perpetrators of war crimes war that is not a state party to the Roma Statute of 1998.Methods of the Research: The method used in this study is normative juridical with an approach to international legal regulations and concepts. The sources of legal materials used in this study are primary legal materials, secondary legal materials and tertiary legal materials.Results of the Research: The results of the discussion are that in the ICC efforts to enforce the law based on the provisions of article 12 concerning the requirements for exercising jurisdiction related to the ICC issuing an arrest warrant for Vladimir Putin is contrary to the provisions of article 12 paragraph (1) which confirms that the country that is a party to this statute, thus accepting the jurisdiction of the court with regard to the crimes referred to in article 5. This is because both Rusia and Ukraina are countries that are not parties to the Roma Statute 1998, so that the arrest warrant against Vladimir Putin is null and void. However , there is an exception in article 13 paragraph (3) of the statute which state that if a state which is not a state party declares that it accepts this statute and ratifies this statute, then the ICC can exercise its jurisdiction over the state which has accepted the jurisdiction of the ICC. So that the attempt to arrest Vladimir Putin can be carried out constitutionally under the statute.

“Bogus claim of jurisdiction” - Congressional opposition to the ICC in the 2000s

Despite helping develop the Rome Statute, when it came to signing the International Criminal Court (ICC), America stepped out. They argued that their forces were a major power in peacekeeping, and claimed to fear the indictment of their own servicemen. But was this really the case? By analyzing a meeting record between the Congress of Foreign Relations, this paper seeks to find the congressional opinion as to why they didn’t sign the ICC. In taking into account both conservative and democratic views, the meeting records reveal that America refused to sign the ICC because they believed the Court was unreliable and lacked civil rights, as opposed to fear of indictment.

The armed conflict in Gaza, and its complexity under international law: Jus ad bellum, jus in bello, and international justice

Abstract The armed conflict in Gaza raises a series of questions under international law. The most significant questions concern the Israel’s use of force under jus ad bellum, the military operations conducted by the belligerents in relation to the law of armed conflict, and the proceedings brought before certain international courts, such as the International Criminal Court. This article examines each of these three issues in two stages. Firstly, it shows that the answers to these questions give rise to uncertain solutions insofar as they depend on the point of view adopted in relation to fundamental controversies concerning Palestine, such as the latter’s statehood. Secondly, it sets out the solutions that emerge independently of these controversies, whether these solutions express certainties or likelihoods.

Why does the International Criminal Court Fail to End Impunity: An Analysis of ICC’s Operative and Structural Flaws

The International Criminal Court was established to end impunity while sentencing some of the worst criminals committing brutal mass murders. Facing doubts from critics regarding its effectiveness, it is only a matter of time before this court meets its end. Past research usually offers suggestions with a third party’s involvement, while this research focuses on empowering the court itself and its root causes: legal and operational flaws. Methods such as data analysis of the ICC’s financial report and past cases are utlized. These findings are later used to propose recommendations that ensure more effective communication between ASP and the ICC and amend the Rome Statute to grant the ICC more authority. The specific areas of flaws tested in this research can become valuable information for future research, while the ICC can consider the legal recommendations from this research as guidance for future actions.

Witness Preparation at the International Criminal Court

Abstract The case law on witness preparation at the International Criminal Court (ICC) does not provide a coherent answer to whether it is admissible. Similarly, scholars have examined this practice from different perspectives, but they have not come to a consensus, and no academic study focuses on the link between witness preparation and witnesses’ well-being. This article analyses ICC case law on this issue and identifies three different approaches to witness preparation. It suggests that witness preparation corresponds to a legal obligation under Article 68 of the Rome Statute to protect witnesses’ well-being. Additionally, Article 68 imposes an obligation to ensure witnesses are adequately prepared upon the entire ICC and not only its judges. This article recommends that the ICC should hold a broad consultation on witness preparation with different actors. Finally, given that the practice has the potential to be abused, this article provides some suggestions on how to balance witness preparation with the right to a fair trial and witnesses’ rights.

The role of the International Criminal Court in criminalizing Israeli attacks on the Palestinian people

The International Criminal Court, which is governed by the Rome Statute, is the first permanent court established on the basis of a treaty established to hold accountable the perpetrators of the most serious crimes at the global level, such as war crimes, crimes against humanity, and genocide. On July 17, 1998, the work of the Diplomatic Conference on the Establishment of an International Criminal Court concluded with the approval of the adoption of the Statute of the Court. The International Criminal Court is a permanent and independent institution and is not considered one of the sections of the United Nations. The Statute clarifies that the main task of prosecuting and punishing the perpetrators of crimes lies with States parties, and the Court complements those efforts. The Court is considered the focal point for the application of the international criminal justice system, to include national courts, international courts and courts that include national and international elements. The increase in the intensity of international conflicts and wars in many parts of the world has had an impact on the increase in the commission of war crimes against civilians and the high rates of human rights violations, in the absence of an appropriate mechanism adopted by the international community to reduce these violations and punish and prosecute those who are behind them, whether they are individuals, states, organizations or governments.

Revisiting forum shopping: navigating normative pluralism, navigating sentiments

People live their lives and experience the conflicts in which they are involved in the context of competing normative orders. But how do people navigate this normative pluralism? To understand this, Keebet von Benda-Beckmann’s model of ‘forum shopping’ and ‘shopping forums’, derived from an ethnographic analysis of conflict resolution, remains an indispensable starting point. Building on this approach, I argue that in order to understand the navigation of normative orders more broadly, it is important to bring the analysis of sentiments to the study of normative pluralism. Drawing on ethnographic fieldwork on the International Criminal Court’s transitional justice interventions in northern Uganda, I argue that when confronted with different international, national, religious, and indigenous normative options for dealing with mass violence, people navigate normative pluralism by creating, mobilising, maintaining, and transforming sentiments.

Queering the Rome Statute: Searching for the International Criminal Court’s Potential to Do Justice to Queer People

ABSTRACT The Rome Statute of the International Criminal Court (ICC) is tasked with holding individuals accountable for the perpetration of the most heinous international crimes. However, the Rome Statute does not provide express grounds for protecting queer people. This article examines to what extent the ICC can protect queer people, by adding a queer reading to doctrinal interpretations to trouble and problematise uncritical legal protection. The crime of genocide and the crime against humanity of persecution serve as the main sources of study, in addition to international human rights law due to its connection with the Rome Statute. The queer reading demonstrates that despite the ICC’s ability to protect queer people in some ways, the interpretations of the Rome Statute are limited in their potential to do justice to queer people. As such, this article ventures out into a discussion on the possibility for the ICC to ever provide justice for queer people by navigating queer abolitionist critiques. It argues for an approach that de-centres the ICC, thereby creating space for legal transformation to resist queer erasure, whilst simultaneously looking for alternative (re)imaginings that queer abolitionism creates.

Evolution of Remote Participation of the Accused and Victim in International Criminal Proceedings

Abstract The use of technologies in criminal proceedings has become increasingly popular. This has not escaped the attention of international criminal proceedings. Of particular importance are remote communication tools, which are now used in proceedings before the International Criminal Court (icc). These tools enable, among other things, the remote participation of the accused and the victim in the proceedings. In this paper I will analyse how this one form of using technologies in the criminal process has evolved in the changing reality of international criminal proceedings, including how the use of remote communication tools affects the rights of the accused. I will argue that the development of the use of remote communication tools in icc proceedings has so far been evolutionary and that this has been justified differently depending on the approach taken by the accused and victim in the proceedings. The paper also examines the impact of the covid-19 pandemic.

Damage to the natural environment as a crime against humanity: prospects for changes to Art. 7 of the Statute of the International Criminal Court

The article examines trends in revising the concept of crimes against humanity by adding signs of actions that include damage to the natural environment. It is established that the possibility of expanding the concept of crimes against humanity to include damage to the natural environment is based on criticism of the provisions of the Additional Protocol to the Geneva Conventions of June 8, 1977 and the Statute of the International Criminal Court on damage to the natural environment only in the context of armed conflicts, and also about the signs of such damage as widespread, long-term and severe, which made it practically impossible to implement the norms of the mentioned acts. On such grounds, the position is substantiated that crimes against humanity that encroach on the natural environment should include environmental degradation, exploitation of natural resources, and other actions that lead to pollution or destruction of the environment or climate change. The processes of developing provisions on harming the natural environment as a crime against humanity, which are related to the policy of states or other government institutions, aimed at the exploitation of natural resources and the forced resettlement of the civilian population, are being studied. It is noted that the Office of the Prosecutor of the International Criminal Court is studying the possibility of revising the elements of crimes covered by the jurisdiction of the International Criminal Court and including directly those related to environmental damage. Proposals which are sent to the Office of the Prosecutor of the International Criminal Court are subject to registration in a single Policy Paper. The proposals of certain scientific andinternational non-governmental organizations regarding amendments to the Statute of the International Criminal Court are summarized, which include the introduction of the concept of crimes against humanity as a sign of an attack on the environment or its individual elements; addition to Art. 7 of the Statute of the International Criminal Court by the provisions on the commission of actions specified in items «a», «b», «d», «k» by committing damage to the natural environment, etc.

Erasing the ‘Victim’ from the ‘Victim–Perpetrator’

Abstract Dominic Ongwen — child soldier turned warlord — was tried, convicted and sentenced by Trial Chamber IX of the International Criminal Court (ICC). Using the theoretical vehicle of expressivism, this article aims to look beyond the straightforward, normative consequences of his adjudication, identifying the Trial Judgment’s — and hence, the ICC’s — implicit, didactic/symbolic messages around his controversial victim–perpetrator duality. To achieve this goal, the article deploys the methods of empirical, discourse, and legal/doctrinal analysis, which examine the Judgment’s relevant legal, contextual and linguistic choices around the depiction of Ongwen’s two portraits — that of the victim and that of the perpetrator. Through the juxtaposition of the two portraits, defined by the absence of victimhood and the overpresence of perpetratorhood, the researcher extracts the Judgment’s expressive imprint, including the preservation of the victim–perpetrator dichotomy, the non-elucidation of the child soldiering phenomenon, the problematic deductions on the role and liability of child soldiers, as well as the defendant’s over-stigmatization. In light of the above, the article assesses the messages’ adherence to the aspirations and principles of expressivism.

Children Born of Conflict-Related Sexual Violence as Direct Victims under International Criminal Law

Abstract This article explores specific cases of children born of conflict-related sexual violence (CRSV) to ascertain the precise nature of their harm making them a unique category of victims under international criminal law. It will identify and illustrate, inter alia, the nature, intent and impact of their victimhood, detailing precisely how to prosecute crimes against and affecting these children at the International Criminal Court (ICC). The research eschews the conventional approach of regarding these children as secondary victims by surfacing direct crimes under ICC jurisdiction and positioning them firmly within investigative, prosecutorial and judicial attention.

PROCEDURE FOR IDENTIFYING ARTILLERY MEANS OF DESTRUCTION

For evidence in the International Criminal Court of the crimes of the Russian Federation for strikes on civilian infrastructure, substantial evidence is required. Indeed, indisputable evidence includes fragments of missiles and munitions found at the sites of impact. The article presents the procedure for identifying enemy artillery means of destruction, which consists of eight stages. The procedure for identifying artillery means of destruction from fragments found at the scene should be comprehensive, including the determination of the type of munition, identification of the probable area of enemy firing positions from which the strike was conducted, and should include the following stages: inspection of the crater to collect informative fragments; determination of the type of munition; identification of the type of artillery system from which the fire was conducted; determination of the direction from which the artillery shell was fired; identification of the probable area of enemy firing positions. The use of 3D models for reconstructing the shell casing has been proposed, which will enable the identification of enemy types of munitions much faster and without the need for laboratory analysis. Based on the results of the munition type identification, an expert report is compiled, which may also include the names of individuals involved in the crime. Step-by-step execution of the stages in the procedure for identifying artillery shell explosions, starting with working at the crater and ending with comparative measurements, including the use of 3D models, will optimize and facilitate the work of experts at the scene and speed up the process of providing information to investigators. Additionally, applying the stages of the procedure will enable the creation of a database of identified fragments for further study and comparison during the experts' work. Thus, the proposed procedure for identifying fragments of enemy artillery munitions collected from the scene will significantly ease the work of military personnel and forensic experts, facilitate cooperation between forensic laboratories and law enforcement agencies at both national and international levels, and ultimately contribute to the successful investigation of war crimes.

Genosida Sebagai Pelanggaran Hak Asasi Manusia (HAM) Yang Berat

Deprivation of Human Rights using various criminal methods has been happening for a long time. Since then, many international regulations have set limits and prohibitions regarding war crimes up to genocide, including judicial bodies that are given responsibility for crimes that have been committed. By knowing the actions and bodies authorized to prosecute serious human rights violations, we can understand current changes in the existence of the crime of genocide. The aim of realizing international legal instruments is to fulfill the human rights of victims, the world community and perpetrators. The research method used is normative juridical. The research approach is through a statute approach, which examines problems using statutory regulations by analyzing relevant laws to be used as a legal basis, such as the Convention on the Prevention and Punishment of the Crime of Genocide in 1948, the Statute of the International Criminal Court in 1998 and the Law on Law Number 25 of 2000 concerning Human Rights Courts. The research results concluded that the crime of genocide is one of four serious human rights violations within the jurisdiction of the International Criminal Court. Genocide always involves two things, namely: objectively it refers to the act of extermination and subjectively the target of the action is a certain group. The International Criminal Court, in accordance with Article 34 of the 1998 Rome Statute, consists of four parts: The Presidency, the Chambers, the Offices of the Prosecutors and the Registry in carrying out its duties. The International Criminal Court will only carry out its functions if the National Court cannot carry out its functions properly, in this case the meaning is if the National Court does not want to try the perpetrator of the crime and unable.

Legal principles of pre-trial investigation war crimes

The modern legal principles of the activity of law enforcement agencies regarding the investigation of war crimes have been defined. It is emphasized that war crimes are complex in terms of their mechanism of commission, which is characterized by consequences in the form of significant destruction of civilian infrastructure objects, a large number of unidentified dead; instruments of commission, which neither pre-trial investigation bodies nor forensic experts have encountered before; by persons of criminals who change their locations, including those who are in the territory of another state, etc. It is noted that in Ukraine since the declaration of the legal regime of martial law by the Decree of the President of Ukraine, significant changes have taken place in the criminal procedural legislation, which established a special regime of pre-trial investigation and trial under martial law conditions, provided for in Section IX-1 of the Criminal Procedure Code of Ukraine. It is noted that the pre-trial investigation of war crimes requires considerable expenditure of resources, including human resources, due to which employees of various law enforcement agencies, including units of the National Police, are involved in carrying out certain procedural actions. Legal problems in the activities of the National Police of Ukraine regarding the organizational features of the pre-trial investigation that need to be resolved at the legislative and departmental levels are highlighted. Proposals are made to improve the legislation on the regulation of the term “war crime” in the Criminal Code of Ukraine. The requirements regarding the procedure for collecting evidence of war crimes for the purpose of further transfer of materials for consideration by the International Criminal Court have been updated. Attention is focused on the fact that the principles, subjects and forms of interaction at the national and international levels during the pre-trial investigation of war crimes should be properly regulated. During the writing of the article, the methods of dialectics, comparative legal and systemic analysis, and formal logic were used.

Recognition of the Jurisdiction of the International Criminal Court as a Measure to Ensure the Application of International Humanitarian Law: Example of Armenia

This paper reviews the definition of international humanitarian law, as well as the application of international humanitarian law by the International Criminal Court. The powers and activities of the International Criminal Court are examined. The scope of possible application of the principles and provisions of international humanitarian law by the International Criminal Court, as well as the modalities of such application, is revealed. The article analyses changes in Armenian legislation after the ratification of the Rome Statute and focuses on the fact that after the ratification of the Rome Statute, which is a significant step forward for the security of Armenia, Armenia (Centre for Truth and Justice) requested the International Criminal Court Prosecutor to initiate a preliminary examination of the ongoing genocide committed by Azerbaijan’s Armed Forces against the ethnic Armenians within the territory of Armenia. Besides this, the analysis of the procedural position of the International Criminal Court Prosecutor in the system of international justice is carried out. The main tasks and fundamental role of the Prosecutor's office in the investigation or prosecution of international crimes are investigated. Keywords: International Criminal Court; International Humanitarian Law; Rome Statute; ratification; preliminary examination.

Critical analysis of international law failures in the Russian invasion of Ukraine: implications for global security

This paper offers a critical analysis of the structural deficiencies in international law that Russia’s full-scale invasion of Ukraine revealed in 2022. The study reveals a significant failure of international legal mechanisms, in particular the United Nations, to effectively deter Russian aggression and prevent the escalation of violence. Despite numerous legal actions and international responses – including resolutions by the United Nations General Assembly, proceedings at the International Court of Justice and investigations by the International Criminal Court – these measures have failed to alter Russia’s conduct or prevent further deterioration of the situation in Ukraine. The study employs a normative juridical approach, analyzing the legality of Russia’s actions considering established international norms and principles. Through this methodology, the research uncovers how Russia’s justifications for its military intervention – based on self-defense, collective self-defense, and allegations of genocide – are legally flawed and inconsistent with international law. Moreover, the research reveals the broader implications of these violations, including the potential erosion of global legal norms and the setting of dangerous precedents that could undermine international peace and security. The findings of this research highlight the urgent need for reform within the international legal framework to address these deficiencies. The paper concludes by proposing specific reforms, such as expanding the abstention obligation in the United Nations Security Council and clarifying the legal basis for humanitarian intervention, to strengthen the enforcement of international law and better protect state sovereignty. These insights contribute to the ongoing discourse on the role of international law in conflict resolution and the maintenance of global security.

Head of state immunity, order, justice and the international criminal court: limits of international criminal justice in international society

Head of state immunity, order, justice and the international criminal court: limits of international criminal justice in international society