International Criminal Court Research Articles

#AUSPOL #WARCRIMES #ICC: exploring the social media response to a communication to the International Criminal Court

ABSTRACT Any individual or organisation can make an ‘Article 15 communication’ to the Prosecutor of the International Criminal Court (ICC), providing him or her with information about alleged international crimes. Increasingly, individuals and organisations are publicising their communications through the media and on social media. While this may enable the authors of communications to attract attention and advocate extralegally for political and social change, the strategic use of communications poses challenges for the ICC. This article uses the social media discussion on X, following a communication by Australian Senator Jacqui Lambie concerning the potential responsibility of Australian Defence Force commanders for war crimes in Afghanistan, as a case study to explore the strategic benefits and potential risks of Article 15 communications. The discussion following Lambie’s communication suggests that a communication can be used to engage the public. However, while there was no strong evidence that users held inflated expectations regarding the likely outcome of a communication, the article’s findings suggest three scenarios where people might develop a negative opinion towards the ICC if the Prosecutor declines to take further action. Improving the public’s understanding of the ICC might help protect the Court against potential reputational damage from communications.

The lawful presence element in the International Criminal Court: why Myanmar’s domestic laws should not be relied upon in a case for deportation or forcible transfer

ABSTRACT The Prosecutor of the International Criminal Court (ICC) is currently investigating allegations of crimes against humanity for deportation or forcible transfer of the ethnic Rohingya population from Myanmar. For this crime to be established, the Prosecution must prove that the victim Rohingya population were ‘lawfully present’ on the territory they were removed from. Given the state’s strong position that the Rohingya are ‘illegal Bengali immigrants’, it may be argued that the Rohingya population were not lawfully present in Myanmar’s territory under Myanmar’s domestic law. Drawing from both legal and socio-legal perspectives, this article critically examines Myanmar’s domestic laws, highlighting the problematic aspects of relying upon them for establishing the Rohingya’s unlawful presence. First, Myanmar’s domestic laws are inconsistent with the applicable rules of international law as they strip the Rohingya of their nationality. Second, the term ‘lawful presence’ should be read in its common meaning, which concerns many factors, rather than a sole focus on residency or citizenship status. Third, Myanmar’s domestic laws are based on a discriminatory rhetoric to remove the Rohingya from Myanmar’s territory. Asserting the Rohingya’s unlawful presence affirms the longstanding narrative that the Rohingya are ‘illegal Bengali immigrants’.

Framing victims and perpetrators: Local and international reporting on the International Criminal Court case against Dominic Ongwen

Building on research on victims and perpetrators of political violence and their depiction in the media, this article highlights the conceptual and practical challenge of specifying the process by which individuals acquire a morally ambiguous or ‘complex’ status in conflict. The authors conduct a content analysis of English-language print reporting on Dominic Ongwen’s International Criminal Court case and ambiguous status as a child soldier and victim–perpetrator. They identify important variation in how different news media frame the processes through which an individual becomes a victim–perpetrator and how these depictions relate to understandings of agency as well as transitional justice and post-conflict societal transformations. The article presents a framework for understanding how individuals are seen as ‘turning’ from one category of conflict-affected individual to another category as depicted in the news media.

Book Review: The local impact of the International Criminal Court: From law to justice by Wierda, Marieke

Book Review: <i>The local impact of the International Criminal Court: From law to justice</i> by Wierda, Marieke

Ecocide, environmental harm and framework integration at the International Criminal Court

ABSTRACT As the International Criminal Court (ICC) increasingly focuses on environmental harm, and with ecocide formally proposed for adoption into the Rome Statute, the normative adjustments needed to accommodate this ecocentric shift require urgent analysis. Other branches of international law, such as environmental, human rights, and humanitarian law, will be critical in environmental harm proceedings. However, the conceptual basis to incorporate extrinsic law at the ICC under Article 21 of the Rome Statute has not been adequately explored, jurisprudence on it is inconsistent, and its practical implementation remains ad hoc. In seeking to reconcile the Rome Statute with its broader legal context, a well-known doctrine for the incorporation of disparate bodies of law is that of systemic integration, which has been espoused by Martii Koskenniemi and the International Law Commission. Yet, a deeper analysis reveals that this hermeneutically-bound approach is overly restrictive for the ICC’s environmentally-oriented activities. In its place, the article proposes a new approach called ‘framework integration’. The article pre-emptively addresses potential challenges to this novel theory, including the risks of the Court acting ultra vires and perpetuating inconsistent legal standards. This normative examination provides insights for the ICC and for other institutions charged with redressing atrocity crimes, which is particularly apposite for existing offences harming the environment as well as the proposed crime of ecocide.

Lecture by ICC Judge Nicolas Guillou at Comenius University Bratislava

This report covers a lecture by International Criminal Court Judge Nicolas Guillou, held at the Faculty of Law of the Comenius University Bratislava, on the occasion of the Law Day, on the topic: Current Challenges of the ICC in Affirmation of the Rule of Law. In this lecture, the Judge examined the 5 main challenges that the ICC is currently facing. These are hybridisation, efficiency, technologisation, digitisation of evidence and fragmentation.

Военные преступления в Уголовном кодексе Российской Федерации: теоретические подходы классификации и ее отражение в уголовном законодательстве

Abstract Introduction: the article considers the classification of war crimes including theoretical approach, international legal enshrinement and criminal law provisions, presents recommendations for amending and supplementing the provisions of the Criminal Code of the Russian Federation involving elements of war crimes basing on the examination of the classification of war crimes. Materials and Methods: the author used theories of Russian scientists, Statute of the International Criminal Court and other international documents as well as the Criminal Code of the Russian Federation as study materials, the methods of analysis and comparison to shape author’s position, for future reference. Literature review: the author used works of E.N. Trikoz, S.A. Lobanov, I.Yu. Belyi and other researchers studying war crimes. Results: the author suggests the final classification of war crimes basing on which elements of war crimes defined and introduced amendments to Chapter 34 of the Criminal Code of the Russian Federation. Discussion and Conclusions: the analysis made it possible to identify the advantages and disadvantages of the theoretical classifications of various scientists, as well as the types of war crimes enshrined in international documents and national legislation. In conclusion, the author’s development of a theoretical approach to the formation of a classification of war crimes, which must be applied to consolidate specific elements of war crimes in the Criminal Code of the Russian Federation, is presented. Its application is aimed at resolving various practical issues that arise when qualifying acts under national criminal law at the present time.

Implementation of the provisions of the Rome Statute of the International Criminal Court to the Criminal Code of Ukraine: results and prospects

The article analyzes the results of the implementation of the provisions of Articles 6, 7, 8, 8 bis, 28, 29, 70 of the Rome Statute of the International Criminal Court (hereinafter referred to as the Rome Statute) to the Criminal Code of Ukraine (hereinafter referred to as the Code). Such implementation was carried out in accordance with the Law of Ukraine No. 4012-IX of October 9, 2024. The main conclusions are as follows: 1) the provisions of Article 28 of the Statute on the criminal liability of commanders and other superiors were implemented to Article 31-1 of the Code in violation of the system of the Code; this may result in unnecessary restriction of rights; therefore, a new article with a different content is proposed for inclusion in Section XX of the Special Part of the Code; 2) the implementation of the provisions of Article 8 bis of the Rome Statute on the crime of aggression to Article 437 of the Code was supported, while maintaining in this article criminal liability for related criminal acts related to armed conflicts; 3) the implementation of the provisions of Article 8 of the Rome Statute on war crimes to Article 438 of the Code was only partially implemented; amendments to Article 438 of the Code were proposed for the full implementation of Article 8 and the extension of its effect to violations of laws and customs applicable in non-international armed conflicts; 4) the implementation of the provisions of Article 6 of the Rome Statute on genocide to Article 442 of the Code was carried out with shortcomings in the form of inconsistency of certain provisions of Article 442 of the Code with the provisions of Article 6 of the Rome Statute; 5) the provisions of Article 7 of the Rome Statute on crimes against humanity are implemented in the Code by including Article 442-1 “Crimes against humanity”, which is a positive result; a negative result is the presence in Article 442-1 of provisions that do not comply with Article 7 of the Rome Statute in their content; 6) the amendments to Articles 49 and 80 of the Code, which relate to the non-application of the statute of limitations (Article 29 of the Rome Statute), as well as the amendments to Article 384 of the Code, which relate to crimes against justice (Article 29, paragraph 4, subparagraph “a” of the Rome Statute), are supported; at the same time, the amendments to Article 376 of the Code, which relate to crimes against justice, are recognized as inapplicable; 7) critical remarks are made regarding the provisions of the new Part 2 of Article 8 of the Code (it concerns the effect of the law on criminal liability) due to the fact that its practical application may lead to problems in Ukraine's relations with other states; 8) doubts are expressed regarding the compliance with the Constitution of Ukraine of the amendments made to Part 1 of Article 69 of the Code, which concern the imposition of punishment for international crimes. Proposed amendments to the Code in order to eliminate shortcomings in the implementation of the provisions of the Rome Statute and improve the system of the Code.

An Examination of Crimes under the Jurisdiction of the International Criminal Court (ICC)

The International Criminal Court (ICC) is an international judicial body established to investigate and prosecute individuals responsible for major international crimes, playing a significant role in delivering justice globally. International crimes are defined as acts that are so severe and widespread that they transcend domestic boundaries, posing a threat to international peace and security. Consequently, the importance of addressing such crimes becomes evident as it establishes the foundation for achieving global justice. In this context, the primary research question is which crimes fall under the jurisdiction of the ICC? The author's hypothesis posits that the ICC, as an international institution, seeks to fulfill justice within the framework of global justice. To address this question and explore the hypothesis, an analytical-explanatory methodology, in conjunction with library-based resources, was employed. The findings indicate that the ICC's jurisdiction over crimes such as genocide, crimes against humanity, war crimes, and crimes of aggression enables it to contribute to international criminal justice by investigating and prosecuting those responsible, thereby addressing the impunity for these offenses. The ICC complements national judicial systems and intervenes only when countries are either unwilling or unable to prosecute these crimes.

Study on the relationship between Russia and the International Criminal Court

In 2016, after 16 years of review period, Russia finally made the decision not to join the International Criminal Court and the Rome Statute, from support to doubt to reject, the change of Russia's position is not only a direct reaction to the investigation of Russian cases in recent years, but also out of the interests of the state, the interests of the legal system, and the doubt of the working mechanism of the International Criminal Court. Although it does not formally join the International Criminal Court, Russia still needs to bear certain international legal obligations, especially in the face of the possible compulsory jurisdiction of the International Criminal Court, Russia needs to take corresponding measures in international law and domestic law to avoid the adverse impact.

Genocidal Dimensions of the Russo-Ukrainian War: Targeting the People and Cultural Heritage of Ukraine

When the Russian Federation launched a full-scale aggression against Ukraine, it violated the prohibition on the “use of force against the territorial integrity or political independence of any state”, embodied in Article 2, paragraph 4, of the United Nations Charter. The crimes committed by the Russian armed forces since 24 February 2022 in Ukraine constitute the most serious crimes of international concern, as confirmed by the International Criminal Court’s arrest warrant for Russian President Vladimir Putin and the Presidential Commissioner for Children’s Rights Maria Alekseyevna Lvova-Belova in connection with specific acts classified by this court as war crimes. At the same time, to constitute a crime of genocide, there must be a proven intent on the part of the accused to destroy, in whole or in part, a national, ethnical, racial, or religious group. This article examines the war crimes perpetrated by the Russian armed forces against the civilian population of Ukraine during the Russo-Ukrainian war and identifies signs of genocidal intent in these actions. It analyses explicit acts of genocide including killings, causing serious bodily or mental harm, the forced transfer of Ukrainian children to Russia and occupied territories, and the intentional creation of living conditions geared toward the physical destruction of the Ukrainians as a nation. Additionally, the article scrutinises the attacks on the country’s cultural heritage sites, which in turn can be qualified depending on the circumstances, as war crimes (when, inter alia, military necessity is not justified and the principle of distinguishing between military and civilian targets is violated), crimes against humanity (when they are systematic), or genocide (when they are part of a policy of identity destruction). The author demonstrates that Russian aggression against Ukraine not only poses a threat to the territorial integrity and state sovereignty of the country, but also seeks to annihilate – at least partially – the Ukrainian nation, its identity, and its cultural heritage. The Russo-Ukrainian conflict exhibits signs of a genocidal campaign that are recognised by international law under the 1948 Genocide Convention. This is manifested in an attempt to commit genocide, direct and public incitement for genocide, and the commission of genocide in certain territories, specifically in Bucha and Mariupol. However, substantiating and proving the crime across all of Ukraine will be more difficult and may take years. An exception to this challenge is the mass transfer of almost 4,500 Ukrainian orphans to Russia – a crime that concerns the entire country. Additionally, acts of torture and killings that occurred in the early stages of the full-scale invasion (February and March 2022) in the Kyiv and Chernihiv regions exhibit signs of genocide committed in certain territories. At the same time, the existing facts, viewed through a historical prism, indicate that the actions taken by Russian forces in Ukraine embody the characteristics of genocide.

Genocidal Dimensions of the Russo-Ukrainian War: Targeting the People and Cultural Heritage of Ukraine

When the Russian Federation launched a full-scale aggression against Ukraine, it violated the prohibition on the “use of force against the territorial integrity or political independence of any state”, embodied in Article 2, paragraph 4, of the United Nations Charter. The crimes committed by the Russian armed forces since 24 February 2022 in Ukraine constitute the most serious crimes of international concern, as confirmed by the International Criminal Court’s arrest warrant for Russian President Vladimir Putin and the Presidential Commissioner for Children’s Rights Maria Alekseyevna Lvova-Belova in connection with specific acts classified by this court as war crimes. At the same time, to constitute a crime of genocide, there must be a proven intent on the part of the accused to destroy, in whole or in part, a national, ethnical, racial, or religious group. This article examines the war crimes perpetrated by the Russian armed forces against the civilian population of Ukraine during the Russo-Ukrainian war and identifies signs of genocidal intent in these actions. It analyses explicit acts of genocide including killings, causing serious bodily or mental harm, the forced transfer of Ukrainian children to Russia and occupied territories, and the intentional creation of living conditions geared toward the physical destruction of the Ukrainians as a nation. Additionally, the article scrutinises the attacks on the country’s cultural heritage sites, which in turn can be qualified depending on the circumstances, as war crimes (when, inter alia, military necessity is not justified and the principle of distinguishing between military and civilian targets is violated), crimes against humanity (when they are systematic), or genocide (when they are part of a policy of identity destruction). The author demonstrates that Russian aggression against Ukraine not only poses a threat to the territorial integrity and state sovereignty of the country, but also seeks to annihilate – at least partially – the Ukrainian nation, its identity, and its cultural heritage. The Russo-Ukrainian conflict exhibits signs of a genocidal campaign that are recognised by international law under the 1948 Genocide Convention. This is manifested in an attempt to commit genocide, direct and public incitement for genocide, and the commission of genocide in certain territories, specifically in Bucha and Mariupol. However, substantiating and proving the crime across all of Ukraine will be more difficult and may take years. An exception to this challenge is the mass transfer of almost 4,500 Ukrainian orphans to Russia – a crime that concerns the entire country. Additionally, acts of torture and killings that occurred in the early stages of the full-scale invasion (February and March 2022) in the Kyiv and Chernihiv regions exhibit signs of genocide committed in certain territories. At the same time, the existing facts, viewed through a historical prism, indicate that the actions taken by Russian forces in Ukraine embody the characteristics of genocide.

Examining Nigeria’s Commitment to the International Criminal Court: A Response to Anya et al.

Abstract The International Criminal Court (ICC) plays a key role in ensuring accountability for crimes under international law. Supporting this critical mission of the Court is vital to its survival. Understanding this, Anya et al. in a recent paper examined the relationships existing between states and the ICC. They determine that states can have a relationship of either credible commitment to support the work of the Court or sham devotion. Three African states, including Nigeria, Kenya and Uganda, were studied and based on their analysis of selected data, the writers make predictions for each state’s future engagement with the Court. While the study is compelling, I argue that the predictions made in the end, particularly in relation to Nigeria, are based on flawed data. I attempt to contextualize some of their assertions, particularly regarding immunity, complementarity and jurisdiction. This article ultimately calls for a more nuanced approach to evaluating state behavior towards the ICC, emphasizing the importance of contextual factors beyond quantitative measurements.

A new historical bloc and the political economy of international criminal prosecutions at the international criminal court

ABSTRACT Propagators and many critics of the effectiveness of enforcement mechanisms portraying the individual criminal positioned against the political and legal system as the main power modality are strange disciplinary fraternities reconstructing the goal of deterrence as the primary goal in law and granting it an exclusive role to the detriment of its alternatives. Starting with the debate on whether international criminal law can prevent mass-scale atrocities, this paper argues that treating deterrence as the ultimate goal in international law not only blurs but also prevents insights on how law’s power operates in different temporal and spatial domains in different forms. Through deconstructing the artificial and false dichotomies of the national versus the international and the state versus the international community, the paper displays the connection between international criminal prosecutions and the conditions of global political economy from a neo-Gramscian perspective. It does so by revealing that the deterrence of certain crimes accepted to be the main function of any legal system is an incomplete and even defective, if not superficial, depiction of the problem, and exemplifies this with the establishment and operation of the International Criminal Court (ICC). A reconnaissance of the transformations in state sovereignty as well as the juxtaposition of power modalities in a neoliberal design whereby meta-governance of the problem of global insecurity is operationalised unfolds how efforts to control crime and violence coincide with capitalist expansion.

A Review of International Criminal Law on Human Rights Violations to The Rohingya Ethnicity

The Rohingya ethnic minority faces discrimination as a result of the policies and actions of the Myanmar government. This discussion will centre on the delineation of violations and the manner in which international law evaluates human rights transgressions perpetrated against the Rohingya ethnic group in Myanmar. The research methodology employed in this study is a normative juridical approach, specifically utilising legal ideas and norms that are applicable in broader society. The legal materials utilised encompass elementary, secondary, and tertiary legal sources. The grave human rights atrocities that took place in Myanmar can be categorised as international crimes, specifically genocide and crimes against humanity. These violations satisfy the significant standards of mass murder, widespread prejudice against religious minorities, and intentional targeting of specific ethnicities and communities. The crimes mentioned are delineated in articles 6 and 7 of the Rome Statute, which are under the purview of the International Criminal Court (ICC).

What Is “A Certain International Criminal Court” and Does the Choice of A Fully International or Internationalized (Hybrid) Court/Chambers Matter for The Crime of Aggression Committed Against Ukraine?

When the International Court of Justice issued its Arrest Warrant Judgment in 2002, it indicated that personal immunities do not prevent proceedings in front of “certain international criminal courts” and provided three demonstrative examples of such courts. After the full-scale invasion of Ukraine commenced in February 2022, debates ensued regarding the elements necessary to qualify a court within the meaning of the Arrest Warrant Judgment. They particularly concern two types of tribunals (“fully international” and “hybrid / internationalized”). This article suggests that only fully international courts qualify as “certain international criminal courts”, while hybrid tribunals are far too attached to the sovereignty of State(s) to meet its criteria. The determination of a court as hybrid or international is rather fluid however, and the qualification as “a certain international criminal court” depends on various elements (the establishing mechanism; applicable law; and reflection of the will of the international community) in each individual case.

Prosecuting Individuals for Environmental Harm in the Armed Conflict Between Russia and Ukraine: The Case of Destruction of the Kakhovka Dam

The ongoing conflict between Russia and Ukraine has caused serious harm to the environment, resulting in the destruction of ecosystems, a reduction in biodiversity, and damage to natural reserves and protected ecosystems. This type of damage may fall under the jurisdiction of both the International Criminal Court (ICC) under Art. 8(2)(b)(iv) of the ICC Statute regarding war crimes and the Ukrainian domestic courts under Art. 441 of the Criminal Code of Ukraine (CCU) regarding ecocide. However, while Ukrainian domestic judicial authorities are already conducting investigations under Art. 441 CCU, the prosecution by the ICC for environmental damage should satisfy the high threshold imposed by Art. 8(2)(b)(iv) of the ICC Statute. It would be interesting to see whether the ICC Prosecutor will initiate an investigation into the Kakhovka dam bombing, just like Ukrainian domestic authorities have already done.

Prosecution of The Crime of Aggression in International and Ukrainian Jurisdiction: Challenges and Prospects

This article explores the genesis of Russian aggression against Ukraine, tracing its origins from the unprovoked illegal invasion initiated in February 2014 to the full-scale invasion in 2022. Despite initial international responses, the lack of significant sanctions against Russia or efforts to prosecute its leaders for the crime of aggression persisted until the 2022 invasion. The international community’s condemna tion of the brutality accompanying this invasion underscored the need for accountability mechanisms within the existing international legal framework. However, limitations in prosecuting aggression within the International Criminal Court, coupled with chal lenges in amending the Rome Statute, have led to proposals for an ad hoc mechanism to address aggression gaining traction. These proposals highlight the urgency of holding aggressors accountable and safeguarding victims’ rights. Concurrently, Ukrainian ju risdiction incorporates the concept of the crime of aggression in its Criminal Code but lacks clarity on essential elements necessary for prosecuting such crimes, including the leadership element. An analysis of court verdicts reveals discrepancies in interpreting the crime of aggression, emphasising the necessity of adopting a unified approach that is consistent with international law. The article underscores the critical importance of enhancing legal frameworks, building capacity and encouraging international cooper ation to ensure accountability for the crime of aggression and to preserve the rule of law.

Domestic and International Criminal Jurisdiction in the Context of the Initiative for a Special Tribunal for the Crime of Aggression

Russia’s aggression against Ukraine and the efforts to prosecute the perpetrators have renewed the debate regarding domestic and international criminal jurisdiction over the crime of aggression. Given the inter-state nature of this crime and its link to an act of aggression, the existence of which can be determined by the Security Council, the International Law Commission’s (ILC) relatively restrictive approach to the exercise of criminal jurisdiction prevailed, at least until 2022. Against this background, the discussion regarding the establishment of a Special Tribunal for the crime of aggression against Ukraine has significantly influenced the trajectory of the understanding of general international law concerning individual criminal responsibility for the crime of aggression. The interpretative paths adopted in the mid-1990s are gradually being abandoned. At the same time, an intense ongoing debate concerning the understanding of the phrase “international criminal courts, where they have jurisdiction” has not led to any conclusive arrangements. Still, what is known is that there is a certain group of states for which such courts can be created through bilateral agreement between the state concerned and the United Nations, on the recommendation of the UN General Assembly.

National Implementation of the Rome Statute of the International Criminal Court: In Search of an Appropriate Modality

National Implementation of the Rome Statute of the International Criminal Court: In Search of an Appropriate Modality