International Criminal Court Research Articles

Between Contestation and Support: Explaining Elites’ Confidence in the International Criminal Court

Abstract The International Criminal Court (ICC) has come under challenge in recent years as some countries have decided, or considered, to withdraw from it. Against this backdrop, an emerging literature has begun to examine attitudes toward the court among the general public as a key court constituency. However, little is known about how domestic elites perceive the court. This research gap is particularly surprising given that domestic elites have a considerable impact on both public and state support of the court. This article explains why political and societal elites across world regions have confidence or lack confidence in the ICC. We present the results from a unique survey of 722 elite respondents conducted from 2017 to 2019 across six countries: Brazil, Germany, the Philippines, Russia, South Africa, and the United States. We furthermore enrich our analysis by using public opinion data to draw comparisons between elites and the general public. The analyses reveal that the views of elites are most consistently related to their perceptions of other, more well-known international organizations and their country’s relationship with the ICC. Our findings indicate both similarities and differences between how elite and public opinion about the ICC are formed, demonstrating the value of further research on elite opinion on international courts.

Of Feline Kings and Spying Spirits

Abstract This article deals with the perspective from which situations of duress under the Statute of the International Criminal Court have to be evaluated, in particular in cases in which (as in Ongwen) strongly individualised circumstances, such as a belief in spirits, have coloured the perception of the alleged threat. It critically analyses objective and subjective approaches, examines their weaknesses, and explores mediating perspectives. In this context, the objective individualised approach emerges as a method which, by focusing on the viewpoint of the social circle of the defendant, avoids the detrimental consequences of the traditional approaches and demonstrates appropriate alignment with the requirement of foreseeability.

Impunity for International Law Violations in the Russia-Ukraine Conflict: Implications for Global Stability

The protracted conflict between Russia and Ukraine, initiated in 2014 and intensified by Russia's comprehensive military incursion in 2022, has elicited profound apprehensions regarding breaches of international legal standards. This article analyzes the ramifications of the conflict on global legal structures, with particular emphasis on violations of the United Nations Charter, the Rome Statute, and International Humanitarian Law (IHL). The examination underscores that the actions undertaken by Russia in Ukraine contravene essential tenets of international law, notably the ban on the use of force against the sovereignty of states and the imperative to safeguard civilians amidst armed conflict. The article contends that the military actions undertaken by Russia in its invasion constitute violations of the principles of state sovereignty and territorial integrity as outlined in the UN Charter, contravene the definitions of war crimes and aggression established by the Rome Statute, and fail to adhere to the mandates for civilian protection set forth by International Humanitarian Law. This article examines the complexities associated with prosecuting these violations, highlighting the constraints faced by international institutions such as the International Criminal Court (ICC) and the UN Security Council. The analysis highlights the necessity of accountability in maintaining the integrity of international law and averting future transgressions, stressing the wider consequences for global stability and the rule of law.

TOPICAL ISSUES OF DOCTRINE AND COURT PRACTICE ON THE INTERNATIONAL RESPONSIBILITY OF THE STATE FOR THE ACTIVITIES OF FOREIGN NON-STATE ARMED GROUPS

The article examines the topical issues of doctrine and international judicial practice regarding the determination of the State's responsibility for international wrongful acts, in particular, those related to the activities of foreign non-State armed groups. The authors analyse the international legal framework of State responsibility for international wrongful acts, as well as individual criminal liability of individuals. The paper substantiates a set of economic and legal instruments for the implementation of international responsibility (reparations, satisfaction, restitution, economic sanctions) as a mechanism for ensuring compliance with international law by States. The study identifies the legal positions of the International Court of Justice, the International Criminal Court, the International Criminal Tribunal for the former Yugoslavia, the European Court of Human Rights and other international judicial institutions on the application of the concepts of "effective control" and "overall control" in judicial practice, as well as problematic issues of law enforcement.

The Russian–Ukrainian war: The possibilities of ensuring accountability

AbstractThe outbreak of the Russian–Ukrainian war fundamentally shook the international legal order. Consequently, possibilities of holding the aggressor state and potential perpetrators of international crimes accountable became a central topic. Options for establishing state responsibility for violating international law are limited. Possible individual criminal prosecution mechanisms are available at both national and international levels. At the national level, several jurisdictional bases can be found for prosecuting the most serious international crimes.In addition to the procedures at the national level, the International Criminal Court has jurisdiction at the international level in terms of holding persons accountable; however, this also faces challenges. In connection with the current conflict, the International Criminal Court cannot conduct proceedings in relation to all categories of crimes, so the international community seeks to rely on alternative mechanisms that support prosecution efforts. Furthermore, there is an increasing political demand for the creation of new mechanisms which, however, for the time being, are based on shaky international legal grounds.

Victims’ Perspectives on Participation in the Ongwen Case

Abstract The Ongwen case has so far involved one of the largest number of victims represented before the International Criminal Court, both in terms of participation in trial proceedings (4,095) and potential beneficiaries for reparations (49,772). This piece offers some new insights following the trial from victims represented by both victim legal teams that are not captured in victims’ statements or submissions before the Court. It draws on additional interviews with victims after the completion of the trial and sentencing, but before the reparation order issued in the case. It focuses on three elements — victims’ role in proceedings; how victims felt they were represented before the Court; and victims’ satisfaction with the outcome of the proceedings.

THE OBSTACLES TO THE RIGHT TO A FAIR TRIAL UNDER THE INTERNATIONAL LAW: A CASE STUDY OF AL-ANFAL AND SREBRENICA GENOCIDE TRIALS

Background: The right to a fair trial is a critical part of national and international human rights frameworks. To protect this right, the rule of law should be implemented. Currently, the approach to trying individuals accused of grave international crimes, including genocide, is different, which gives an impression of inequality. For instance, the person accused of the al- Anfal genocide was tried by a national court and sentenced to the death penalty, whereas the person accused of the Srebrenica genocide was sentenced to life imprisonment by an international tribunal. Not to mention the lack of respect for the defendants’ rights during the al-Anfal genocide’s trial, including the principle of due process and the right to a fair trial. The main reason for the differing decisions in these two identical cases involving genocide arises from their trials in different courts and under different legal frameworks. This paper addresses the significance of these challenges for equality under international law and emphasises the difficulties in securing fair trials by examining these examples. Methods: This article analyses the application of the right to a fair trial for international criminals by using doctrinal methods. Specifically, it adopts a qualitative approach to examine relevant international statutes. To illustrate, the research chose to analyse and compare two case studies: the trial of Ali al-Majid, the leader of the al-Anfal genocide, and Ratko Mladic, the leader of the Srebrenica genocide. This comparison focuses on aspects such as judicial independence and overall fairness in the trials of war criminals. It involves desk-based research and data that are collected through the analysis of relevant literature from primary sources, such as international law instruments and secondary sources, including books and academic articles, about the inconsistency of fair trial standards in different judicial contexts. Results and conclusions: Different approaches in trials for similar crimes threaten global justice and the protection of individual rights and freedoms. One practical way to address this issue is to bring those accused of grave international crimes, including genocide, to appear before the International Criminal Court (ICC), providing fair trials and punishments. However, this article demonstrates that the doctrine of state sovereignty may pose challenges to creating a uniform framework for the prosecution of war criminals. Additional challenges arise with the existence of different legal and political systems across the world. The article argues that to ensure a fair trial and maintain international peace and security, it is necessary to overcome these challenges and adopt a uniform framework for the prosecution of those accused of grave international crimes. The ICC can be the solution. The international community can overcome these challenges by encouraging all countries to join the Rome Statue and give it the sole jurisdiction over grave international crimes such as genocide, war crimes, or crimes against humanity.

Peran Mahkamah Pidana Internasional dalam Genosida Israel terhadap Penduduk Palestina

One of the international crimes under the authority of the International Criminal Court is genocide. The conflict between Israel and Palestine has been going on for decades and is increasingly leading to acts of genocide from the Israeli side to the Palestinians. Many efforts have been made by the world community as an act of solidarity and siding with Palestine. Efforts are also made by the International Criminal Court to stop the prolonged Israeli-Palestinian conflict. The role of the International Criminal Court is vital in ending the genocide committed by Israel against Palestine, which is increasingly showing its ferocity.

Pertanggungjawaban Pidana Pemimpin Negara Akibat Kejahatan HAM Berat dan Yurisdiksi International Criminal Court

The aim of this research is to understand the concept of handling carried out by the International Criminal Court, especially through the establishment of a Hybrid Court for serious human rights crimes committed by state leaders and also to understand the concept of accountability for state leaders who have immunity related to serious human rights crimes within the jurisdiction of the International Criminal Court. This research uses a normative juridical method where in the process it examines research from literature study materials and legal provisions, in this case the Rome Statute. Criminal liability of state leaders is a form of international legal instrument used to enforce accountability for international crimes committed by state leaders. International crime is something that has been happening for a long time. Various international crimes committed by state leaders have been in the spotlight of history because of the atrocities committed by the leaders of a state. This research will examine the responsibility of state leaders for serious human rights crimes committed by Liberian President Charles Taylor based on the jurisdiction of the International Criminal Court through the establishment of a hybrid court.

Іnternational and foreign practice of compensation for war crimes

The scientific article is dedicated to the study of international and foreign practices of compensation for war crimes. The article analyzes legal mechanisms and tools used for compensating victims of war crimes in various countries of Europe and the world. The main focus is on the practice of international courts, such as the International Criminal Court (ICC), as well as national judicial institutions that handle war crime cases. Specific cases and decisions that have influenced the development of law enforcement practices in this area are examined. One of the key aspects of the work is the analysis of international treaties and conventions that regulate compensation issues, including the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity, as well as the Rome Statute of the ICC. Various compensation models are considered, including monetary compensation, rehabilitation, and other forms of reparation. The article also explores the role of non-governmental organizations and international funds in the process of compensating war crime victims. The effectiveness of different approaches and mechanisms used to ensure justice and restore the rights of victims is analyzed. The work pays attention to the problems and challenges faced by law enforcement agencies when handling war crime cases, as well as the prospects for improving the international legal mechanism for protecting the rights of victims. The research is based on the analysis of specific cases, court decisions, and legal acts, allowing conclusions to be drawn about the current state and possible ways of developing the compensation system for war crimes. Thus, the article contributes to the scientific discussion on improving the mechanisms of legal protection for victims of war crimes and ensuring justice in international law.

Intentional killing as a result of violation of of the laws and customs of war in the context of ill-treatment of prisoners of war

The creative impetus for conducting scientific research on the topic of the study was a rather underdeveloped layer of activity of pre-trial investigation bodies in documenting a certain category of war crimes. At present, we are talking about violations of the laws and customs of war in the context of studying one of the forms of the objective side of a criminal offense - cruel treatment of prisoners of war combined with premeditated murder. Considering the difficult situation with the release of Azovstal’s defenders into “honorable captivity,” a decision that was made at a high state level and lasted from May 16 to 21, 2022, it should be noted that all expectations regarding the implementation of the humanitarian component in accordance with the norms of International Humanitarian Law have not been met. So far, we have received completely different consequences of the desired rescue of the military, who were actually trapped in an enemy trap. Thus, on the night of July 29, 2022, in the former Volnovakha Penal Colony No. 120, located in the village of Molodizhne of the Olenivka Village Council of the Donetsk region (temporarily occupied territory), Russian occupation forces committed a terrorist act, which, according to official data, killed 53 and wounded more than 130 prisoners of war from among the defenders of Azovstal. According to the Ombudsman Dmytro Lubinets, “This is a public execution of officially confirmed, verified Ukrainian prisoners of war who were taken prisoner. According to the Geneva Convention, they were confirmed through the verification procedure by the International Committee of the Red Cross. They were representatives of one military unit of the National Guard of Ukraine...” Unfortunately, due to the complicated and actually suspended exchange of prisoners of war by the occupation authorities, cases of murder (extrajudicial executions) and torture of our military in captivity have become more frequent. Therefore, one of the main tasks of pre-trial investigation bodies should be to tactically correctly and timely document a war crime that is rather complex in its design – violation of the laws and customs of war in the form of ill-treatment of prisoners of war, if it is combined with intentional murder. The timely and correct qualification of such an act should help improve the tactics and methods of investigation by addressing the practical challenges that arise during the pre-trial investigation. First and foremost, it is necessary to ensure clear interaction between several law enforcement agencies (the National Police of Ukraine and the Security Service of Ukraine), whose activities overlap in the plane of jurisdiction. Law enforcement agencies should not only continue each other’s work, but also initiate pre-trial investigations with a clear understanding of the basic algorithm of coordinated actions to prevent loss of evidence with the possibility of further use of the collected evidence in the International Criminal Court. Judicial practice on this issue is currently being formed, but despite this, it is necessary to create and develop a unified algorithm of actions that should be based on the exclusive legality of the evidence obtained. The scientific research conducted in this under-researched area, reinforced by practical experience, will contribute to a deeper understanding of the issues of peculiarities of criminal law qualification and tactics of certain procedural actions during pre-trial investigation in criminal proceedings on the facts of violation of the laws and customs of war, if they are combined with premeditated murder, where the form of the objective side is cruel treatment of prisoners of war. The provisions proposed in this article are intended to be recommendatory for synergy in the work of specialists of pre-trial investigation units and the prosecutor’s office in formulating an algorithm for proving the above facts.

Gender-based sexual violence during the international armed conflict on the territory of Ukraine: problem statement

The article highlights the problem of gender-based sexual violence during the international armed conflict on the territory of Ukraine. Based on the analysis of international documents, customary international law, and scientific sources, it is shown that sexual violence and gender-based violence are distinct concepts. However, in the context of Ukrainian judicial practice under Article 438 “Violation of the Laws and Customs of War” of the Criminal Code of Ukraine, gender-based violence is exclusively sexual in nature and is expressed mainly in the form of gender-based rape. The doctrinal approach is supported, according to which the signs of sexual and gender-based violence are: 1) an act (an actual act), 2) coercion (an act committed against the person’s will), 3) a cause (determined by gender), 4) consequences (causing one or more types of harm or suffering to a person). The author identifies the signs of rape related to armed conflict arising from the Rome Statute of the International Criminal Court, the Elements of Crimes of the International Criminal Court, and customary international law. The actus reus of rape is that the perpetrator has assaulted the body of a person by committing an act that resulted in penetration, even minor, of any part of the victim’s or perpetrator’s body with a sexual organ, or penetration of the victim’s anus or vagina with any object or any part of the body; the fact that rape is a component of war crimes is determined by the presence of a specific situation (coercion by military personnel). The mens rea of rape is the need to establish the perpetrator’s awareness of the encroachment on the human body by committing an act that resulted in penetration; the perpetrator’s awareness of the circumstances of the act (use of force or threat of force, use of coercion, use of a coercive environment, inability of the person to give consent expressing his or her true will), including the absence of the victim’s consent.

Violation of human rights and The Jurisdiction of The International Criminal Court

Violation of human rights and The Jurisdiction of The International Criminal Court

Contribution to the Office of the Prosecutor of the International Criminal Court on Slavery Crimes

Contribution to the Office of the Prosecutor of the International Criminal Court on Slavery Crimes

The Ongwen Case at the International Criminal Court as a Test of the Court’s Outreach Programming in Northern Uganda

Abstract The International Criminal Court’s outreach office remains a central pillar to the legitimacy and relevance of the Court’s activities aimed towards victims’ constituencies. However, the Court’s outreach programmes in the Ongwen case are constrained by a communication strategy used in the context of a fledgling communication infrastructure in northern Uganda. We rely on primary qualitative interviews with victims of Ongwen’s atrocities at Lukodi, Pajule, and Odek to reflect on the need for contextualized outreach activities that are responsive to the needs of victims of the Lord’s Resistance Army insurgency.

International Criminal Law, Complementarity and Amnesty Within the Context of Transitional Justice: Lessons from Uganda

Abstract The article explores the domestic implementation of international criminal law and complementarity, when operating alongside parallel transitional justice approaches. International criminal justice in Uganda is best understood as part of the broader lens of transitional justice, in response to a two-decade war in the Northern part of the country. Besides a doctrinal analysis of the relevant legal regime and cases, the article benefits from the author’s personal insights working in Uganda and The Hague, the two sites of international justice that inform this article. Specifically, the International Crimes Division (icd) which is the specialised court dealing with war crimes and crimes against humanity and the International Criminal Court (icc). The article highlights critical paradoxes of the icd and trial of former rebel Thomas Kwoyelo, putting this domesticated International Criminal Justice regime in a dilemma, also suggesting pathways for reforms.

Protecting victims of international crimes: A reflection on the functional interpretation of the Statute of the International Criminal Court

This study identified essential factors concerning the safeguarding of victims of international crimes within the context of the functional interpretation of the Rome Statute. The study examined the principal worldwide legal frameworks governing the protection of victims of these crimes. The study employed hermeneutic, system-structural analysis, comparative legal, and other methods. The analysis results indicated that the legislation of Kazakhstan lacks clearly defined norms that relate to the responsibility of the state to victims, as well as their right to adequate reparation, including compensation and rehabilitation, as mandated by the UN Convention against Torture. Kazakhstan and China have not ratified the Rome Statute, largely due to political considerations. Kazakhstanʼs accession to the Rome Statute could lead to the harmonisation of national standards with international demands concerning the rule of law and the protection of human rights, as well as strengthen global efforts to counteract the evils that threaten peace and security. It was also found that the lack of clarity in the normative terminology and methods of interpretation of the Rome Statute, as well as conflicts between different objectives, led to the use of a functionalist approach by the court in interpreting the Statute. This weakens its basic function of protecting peopleʼs rights, violates the competences of the participating states and interferes with the principle of national sovereignty. The study addressed the need for victimological prevention of victims of international crimes, which should include improving the practice of treating victims, revising legislation, and developing new structures and services. It is also essential to provide information about the methods of abuse and the diversity of victims through various media formats

Environmental and legal aspects of the armed aggression of the Russian Federation against Ukraine

The article examines the environmental and legal aspects of the armed aggression of the Russian Federation against Ukraine. The problems of bringing the aggressor state to responsibility for ecocide are analyzed. Having found a legislative enshrinement in the national criminal law (Article 441 of the Criminal Code of Ukraine), ecocide has not been enshrined in international criminal law. It is not recognized as a crime either in the Rome Statute of the International Criminal Court or in any other international legal act. As of today, Russian crimes against the environment can be investigated by the International Criminal Court as war crimes. The author of the article supports the proposal regarding the need to include the crime of ecocide in the Rome Statute. The ecological and legal aspect of the formation of an international compensation mechanism is studied, the components of which are: 1) an international register of damages; 2) compensation commission (which will consider individual applications for compensation by the Russian Federation for losses from citizens, companies and the state); 3) compensation fund (which will accumulate funds to pay commission decisions, including at the expense of confiscated Russian assets). The mechanism of compensation for environmental damage caused as a result of the armed aggression of the Russian Federation against Ukraine is analyzed, and ways of its optimization are proposed. The future compensation mechanism should be based on the «ecosystem services approach», which will significantly increase the amount of environmental damage that the Russian Federation will pay to Ukraine. The international practice of compensation for environmental damage caused by the aggressor as a result of military actions and temporary occupation was studied and analyzed. The author emphasized the need to reform the state environmental monitoring system. Without reliable monitoring data, it is difficult to prove a causal relationship between the illegal actions of the aggressor state and the damage caused to the environment.

The Role and Impact of the International Criminal Court in Global Justice

The Role and Impact of the International Criminal Court in Global Justice

The Dilemma of Justice: The International Criminal Court’s Political Maneuver

ABSTRACT∞ This article explores the perspectives of Afghan human rights advocates and academics on transitional justice, focused on the conundrum of the International Criminal Court (ICC) to investigate war crimes and crimes against humanity in Afghanistan. As a judicial entity, the ICC operates in a political environment. The tug of war of the ICC concerning what party to investigate is a testiment to this claim. In a recent twist, the new prosecutor, Karim Khan, issued a statement that his office would focus on crimes perpetrated by the Taliban and the Islamic State Khorasan Province, thus deprioritizing other parties, including the Afghan national security forces and the US military, that were determined by his predecessor. The Afghan human rights advocates and academics, while supporting accountability, criticize selective justice. The nature of war, the US–Taliban peace deal in 2020 and the collapse of the Afghan government in 2021 have furthered the dilemma of justice.