International Criminal Jurisdiction Research Articles

Exit from Nuremberg to the Hague: The Malabo Protocol and the Pan-African Road to Arusha

Abstract In adopting the Malabo Protocol and creating the African Court of Justice and Human Rights, the African Union has established the first ever regional court with international criminal jurisdiction. This milestone signals once again, the role of African institutions in creating and developing norms in international politics. Yet, both International Relations (IR) theories and debates and official narratives of the historiography of the international legal order tend to omit the sustained contributions of African states and institutions. Echoes of the African Union (AU)’s efforts to define and codify crimes that are of concern to its constituents can be found in the African states’ interventions at the International Law Commission during the 1980s and the negotiations that lead to the creation of the International Criminal Court (ICC) in the 1990s. This article argues that beyond the critique and skepticism about the Malabo Protocol and the AU’s agenda, there is a sustained vision and trajectory that underlies African agency in norms creation and attempts to usher in an international legal order that speaks more directly and equitably to the concerns of the continent. Ultimately, I propose a genealogy of those Pan-African visions for an embedded international justice system that provides a fundamental corrective to the Nuremberg to The Hague narrative.

The aggression of the Russian Federation against Ukraine: topical issues of establishing a special international tribunal and the developing an effective mechanism of compensation for crimes against peace and security of manking

The article examines the doctrinal foundations and legal grounds for the establishment of a Special International Tribunal for the prosecution of senior officials of the Russian Federation responsible for committing international crimes on the territory of Ukraine.It has established that the interaction of international and national criminal jurisdictions is one of the most complex and topical issues of modern legal science. With this in mind, the author analyzes the peculiarities and trends of Ukraine’s cooperation with the International Criminal Court, which is generally considered to be the first legal institution to prosecute persons responsible for genocide, war crimes and crimes against humanity. The author proves that the effectiveness of the Court’s functioning depends not only on the expansion of the number of States Parties, but also on the ability to implement measures to counter international crimes at the national level.The study has established that the future ratification of the Rome Statute of the International Criminal Court will greatly facilitate the process of cooperation with leading European legal organizations, and will also make it possible to implement the criminal prosecution process in accordance with the modern reference standards of international criminal law. To achieve the relevant result, Ukraine should use the most optimal way to implement the provisions of the Rome Statute - to amend and supplement the relevant legislative acts, among which the author identifies the Criminal Code of Ukraine, the Criminal Procedure Code of Ukraine, and the Criminal Executive Code of Ukraine. The author emphasizes that the process of amending and supplementing the legal acts relating to domestic criminal jurisdiction should be accompanied by the adoption of a special Law of Ukraine “On Cooperation with the International Criminal Court”.The study also establishes that the prospect of Ukraine’s cooperation with the International Criminal Court will provide a unique opportunity to apply new procedures in national legislation to protect the rights and freedoms of Ukrainian citizens. At the same time, the author proves that the International Criminal Court is significantly limited in its competence in cases involving the prosecution of the top leadership of the Russian Federation for genocide and crimes against humanity. With this in mind, the author conducts a comprehensive and in-depth analysis of the legal basis for the establishment of the Special International Tribunal.

The Problem of ‘Uncertainty’ in International Criminal Law and the Common Law ‘Method’

Abstract International criminal law has evolved from abstract ideas of an international criminal jurisdiction in the early twentieth century to encompass a comprehensive set of tribunals, rules, and methods. This article explores the contribution of the common law to the development of international criminal law, drawing on two key historical episodes – the Nuremberg and Tokyo tribunals, and the ad hoc International Criminal Tribunal for the former Yugoslavia (ICTY) and International Criminal Tribunal for Rwanda (ICTR) – to consider the common law’s historic influence over, and relationship to, uncertainty within the system of international criminal law. First, the article highlights how British jurists framed the normative uncertainty vis-à-vis the idea of international criminal justice in their contributions to this Yearbook. Second, it examines the characteristics shared between common law and international criminal law, with a view to appraising the potential relationship of both ‘systems’. Finally, it interrogates the differing treatments of the common law throughout the development of substantive international criminal law over time, considering how judges utilized the common law as they navigated the complex dialectic between ‘statutory’ and ‘judge-made’ law.

Comentario a la Decisión de la Sala de Cuestiones Preliminares I de fecha 5 de febrero de 2021: la transferencia soberana de la jurisdicción prescriptiva como fundamento de la legitimación del sistema punitivo internacional

It has been observed that the judges of the International Criminal Court, in application of the norms of the Treaty of Rome, perform an extensive interpretation of their jurisdiction. Among its resolutions, the Decision issued by Pre-Trial Chamber I of February 5 2021 is no exception to this tendency. In this Resolution, by which authorizes to the Prosecutor's Office to investigate those perpetrators for the commission of international crimes when occurred in the context of the Israeli-Palestinian conflict, they base its decision on an autonomous interpretation of the norms established in the Statute of the Court and the Rules of Procedure and Evidence, on the consideration of the fact that Palestine is a State Party for the purposes of the Treaty of Rome. Given the relevance of its grounds, this work analyzes the content of said Decision, as well as the legal positions maintained by the judges who were part of the Chamber, since the exercise of jurisdiction was an essential element of the established punitive system, and from a perspective regulations of international criminal jurisdiction, which can only be consistent with the general norms of international law.

Recent Developments of International Law Commission Work on Immunity of State Officials from Foreign Criminal Jurisdiction

Immunity is a well bedded concept within international law and mainly within the principle of sovereign equality of states. There are different procedural implications of the concept of immunity – diplomatic and consular privileges and immunities, State jurisdictional immunities and also immunity of State officials from foreign criminal jurisdiction. The Article focuses on the latter one and portrays on recent developments of immunity of State officials from foreign criminal jurisdiction as it is elaborated by the UN International Law Commission (‘ILC’). The author frames (in the introduction) the concept of immunity and especially the immunity of State officials and puts it in a large theoretical structure of international law and in the work of ILC. Then, he focuses his attention on the phenomenon of progressive development of international law (2) and how it is used with respect to the topic considerated by the ILC. He then presents main ILC conclusions regarding limitations and exceptions to immunity of State officials (3) and finally outlines latest development (4) of the ILC work dealing mainly with relationship between foreign criminal jurisdiction and international criminal jurisdiction and other procedural questions.

The ‘Allegiance’ Test: Judicial Legislation and Interpretation of GCIV

Abstract The article critically addresses the ‘allegiance’ test developed by International Criminal Jurisdictions for the determination of protected personal status under the Fourth Geneva Convention. Through a deconstruction of its elements and the methodology employed in its creation, the author shows substantial and methodological flaws that showcase the test as highly questionable example of judicial legislation. The article concludes that, although the test is likely to go into substantial desuetude, its existence as an interpretative tool will persist and thus its flaws and potential dangers must be assessed critically to prevent unrestricted and unfounded judicial legislation. In particular, the article exposes the lack of relation between the concept of allegiance and the so-called ‘allegiance’ test.

The International Criminal Court versus the African Criminal Court

Abstract In 2014, the Assembly of the African Union amended the Statute of the prospective African Court of Justice and Human Rights (ACJHR) by the adoption of the Malabo Protocol. The Annex to the Protocol confers an extensive international criminal jurisdiction to the ACJHR’s International Criminal Law Section — often referred to as the African Criminal Court — which overlaps with the jurisdiction of the International Criminal Court (ICC). If the Protocol enters into force, the Courts will exercise concurrent jurisdiction over the same matters. Conflicts of jurisdiction would therefore arise should both Courts decide to exercise jurisdiction over the same situation or case. This article advocates for a remodelling of the principle of complementarity, enshrined in Article 17 of the Rome Statute and in Article 46H of the Annex to the Malabo Protocol, to solve these potential conflicts of jurisdiction. The arguments presented herein will be relevant to the relationship between the ICC and any regional criminal court which prosecutes international crimes that would take shape.

Z badań nad białostockim epizodem w biografii Rafała Lemkina

Rafał Lemkin became famous in historiography as the creator of the concept of genocide (genocide). This Polish lawyer of Jewish origin, graduated from the Faculty of Law at the University of Jan Kazimierz in Lviv and was a pupil of the outstanding Polish criminal lawyer Juliusz Makarewicz. From his student days, he became interested in the lack of legal regulations in the field of criminal liability for committing mass murders on a specific national or ethnic group. An important impulse for the development of this thought for the young Lemkin were the famous trials of the assassins Talaat Pasha, responsible for the slaughter of Armenians during the Great War, and Symon Petlura, charged with the responsibility for pogroms against Jews in Ukraine. Before the outbreak of World War II, Rafał Lemkin, as part of his activity in the Polish section of the International Criminal Law Association, presented at a conference in Madrid in 1933 the first visions of the concept of international criminal jurisdiction of genocide offenses. After the outbreak of World War II and his escape to the United States, he started working in the War Department and as a university lecturer. In 1944, he published his opus magnum – “The Axis Rule in Occupied Europe”, where he formulated and accurately described the concept of genocide as a crime of international law. Lemkin’s idea was quickly appreciated. As early as December 1946, the UN General Assembly passed a resolution recognizing genocide as a crime of international law, and two years later it adopted the Convention on the Prevention and Punishment of the Crime of Genocide. He described his extremely interesting life in the autobiography entitled “Totally Unofficial”, which was translated and published in Poland in 2018. Rafał Lemkin describes many details of his life, but omits the period of his residence in Białystok, where he allegedly passed his matriculation exams in 1919, and his student days at the Jagiellonian University, when he gained the necessary experience and knowledge in legal fields to help him develop the concept of criminalisation of genocide.

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

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

TRIBUNALES ESPECIALES O HÍBRIDOS Y MECANISMOS RESIDUALES EN EL SISTEMA DE JUSTICIA PENAL INTERNACIONAL

La lucha contra la impunidad de las graves violaciones a los derechos humanos y elestablecimiento de un tribunal penal internacional permanente han sido una constante a partirde la Segunda Guerra Mundial. A fines del siglo XX e inicios del Siglo XXI, nuevasjurisdicciones penales internacionales fueron establecidas además de una corte penalinternacional permanente: los tribunales Especiales para no dejar impunes graves violacionesa los derechos humanos ocurridas durante la guerra fría y los Mecanismos Residuales, comoparte de una estrategia para finalizar toda actividad jurisdiccional penal internacional temporalestablecida post Guerra Fría. Ambas jurisdicciones, si bien temporales, reconocen laimportancia de la justicia nacional y se dirigen a fortalecer el sistema de justicia penalinternacional permanente.

From Nuremberg to the Hague and beyond: International criminal law in courts: Court of Bosnia And Herzegovina as an example

International criminal law in courts will seize our interest forever. Adjudication of international criminal law violations have to happen in and by courts. They may be national courts; they also may be international (permanent or ad hoc) courts. Not to forget: It is also proposed to prosecute internationally active terrorists by international courts. It is worthwhile to take a short look at the historical development of such discussions. The so-called International (Legal) Community has discussed all forms of international criminal jurisdiction and will keep on discussing. In Bosnia and Herzegovina once the so-called internationals started an experiment with the (national) Court of Bosnia and Herzegovina, which in its nutshell was an administrative court that then was turned into a hybrid court predominantly for war crimes (and other serious felonies). As such a hybrid institution the Court was successful. International judges have left and the court became a purely national institution again. The short hybrid history of this court in a corner of the Western Balkans is worthwhile to be studied shortly.

The premise of the Establishment of the International Criminal Court

The International Criminal Court is an embryo of international criminal jurisdiction for certain serious facts and under certain conditions. The court is in a continuous process of improvement. It is a relatively new institution in international law, differentiated from those of the same type created ad-hoc for certain countries and deeds committed during a designated period. Therefore, the study of all the problems that this institution raises in the context of contemporary international law and in the relationship with the criminal law of the states represents a challenge for any researcher. The court was created as a result of spectacular developments in terms of realities and criminal law. In terms of realities, mankind was confronted with serious crimes targeting entire human groups, on ethnic grounds, with horrors that have not been known since World War II in the last decade of the 20th century. In the field of international criminal law, the establishment of ad hoc International Courts for the trial of crimes committed in the former Yugoslavia and Rwanda and the efforts to establish courts in Cambodia and Sierra Leone, led to the conception of the need to create a permanent and universal body to ensure the prosecution and punishment of acts of this nature, without forgetting its preventive role through its very existence.

Crimes Against the Sovereign Order: Rethinking International Criminal Justice

AbstractThe scope of international criminal jurisdiction poses a fundamental challenge for criminal law theory. Prevailing justifications for the state's authority to punish crime assume the existence of connections between the state and either the criminal or the crime that are not always present in the international criminal context. Recognizing this gap, this Article introduces a new theory of what distinguishes international crimes from domestic crimes and justifies the unusual scope of international criminal jurisdiction. As this Article explains, international crimes are unique in the way they undermine international society's structure as a system of sovereign states.

Questioning the Criminal Justice Imperative

Abstract The Security Council’s structure as a small but powerful executive, combined with its primary responsibility for international peace and security, leads to a presumption against the application of ordinary standards of procedural fairness. At the same time, explicit provisions of the UN Charter and its own rules of procedure indicate that some balance was to be struck. This article questions whether the attainment of international criminal jurisdiction through Security Council decision-making really outweighs the need to ensure procedural integrity in every step of the process. It posits that a lack of procedural fairness in the Council’s methods of work at least undermines the justice imperative that the Council so espouses and at most violates an ancillary legal obligation.

Article 46C of the Malabo Protocol: A Contextually Tailored Approach to Corporate Criminal Liability and Its Contours

This article examines the corporate criminal liability provision of the Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights (Malabo Protocol), which is the first to grant an international or regional criminal court jurisdiction over corporations. It analyses the provision in light of the wide substantial jurisdiction of the future criminal law section of the African Court of Justice and Human and Peoples’ Rights, the complementarity provision, the modes of responsibility and demonstrates its strengths and weaknesses. It argues that the corporate criminal liability provision will particularly contribute to a regional quest for justice and accountability against corporate impunity, as it is contextually tailored but also well equipped to address corporate wrongdoing.

Daedalus or Icarus? Footprints of International Criminal Justice Over a Quarter of a Century

International criminal justice has taken a long journey over the past quarter of a century. This essay analyzes this evolution through an analogy to the Greek myth of Daedulus and Icarus. It argues that, similar to the flight in the tale, the journey of international criminal justice is marked by rise and fall and need for re-orientation. It examines some of the major developments and critiques through a contextualization of seven key moments: (i) Tadic 1995: The grounding of the humanist tradition, (ii) Akayesu: New consciousness regarding sexual and gender based violence, (iii) Kristic: The “new law” on genocide, (iv) the Al-Bashir Arrest Warrant: Law vs. Politics, (v) Lubanga: The global victim as constituency, (vi) Charles Taylor: Even-handedness and dilemmas of accessory liability , and (vii) Saif Gaddafi and Al Senussi: The new frontiers of complementarity. It shows that each of them marks an important turning point for modern understandings of international criminal justice. It concludes that like Icarus, international criminal jurisdiction is ill-advised to fly too close to the sun, and too low to the sea.

Slavery Prosecutions in International Criminal Jurisdictions

This article explores how the findings of international criminal tribunals (ICTs) in respect of enslavement as a form of system criminality can be translated for a proper assessment of slavery outside (armed) conflict. The author has found that, while ICTs are jurisdictionally limited to addressing only forms of institutionalized slavery, they have exceeded this restricted understanding of the practice. They have acknowledged that enslavement need not be officially endorsed at all and they have developed parameters for the identification of the actus reus of enslavement that bear relevance for the assessment of the commission of this crime by private individuals beyond the context of armed conflict or widespread repression. A second important contribution of ICTs to notions of enslavement is the differentiation between slavery and related crimes, such as forced marriage. ICTs have indirectly contributed to the law enforcement with respect to enslavement and slavery by expanding and elucidating these concepts. Moreover, the refined differentiations serve the goal of norm expression.

The International Criminal Court: Its Success and Limitations for Pursuing International Justice

The ICC (International Criminal Court) is the last great international institution of the twentieth century. In July 17, 1998, 120 states voted to adopt the Rome statute of the ICC at headquarters of the FAO (Food and Agriculture Organization of the United Nations) in Rome. The elaborate and complex negotiated instrument, a framework for an international criminal justice system, represented the highest point of a process that began in the wake of the Nuremberg Judgement, when the first time United Nations considered the establishment of an international criminal jurisdiction. In future, the ICC resolve more increasingly be capable of show, by way of powerful judgements resulting from fair and efficient trials, that it sets legal and moral standards that will contribute to the expansion of International Justice. The ICC is based on a treaty, joined by 123 countries. The mechanism of Art.21(3), which is more precise than that of the ICTs, could encourage them to give greater weight to International human rights instruments.

The Violation of Mankind’s Multiculturalism: Another Approach to the Definition of International Crimes

This article discusses the core question of the legal interests offended by international crimes, and therefore the question of the justification of a rational and moral acceptance of an international criminal jurisdiction. International crimes may start off as violations of human rights, but end up affecting humanity as a whole, not as a supranational statehood or as an institutionalised order or mechanism of international policy-making, but more as a societal relationship and co-existence, an empirical quest into the reality of the meaning of life. They offend the collective art of living in its essential core, i.e., the cultural and ethical diversity as a free creation and promotion of a different meaning of life. The criminalised act is here directed against the collective self-realisation of humanity formed through free intra- and inter-group ethical dialogue, through cultural interaction. This multiculturalism, as a social fact, is expressed in a collective and social-political way and is also affected the same way.

Broadening International Criminal Jurisdiction?

The interests of justice are embedded in Article 53 (1) of the Rome Statute of the International Criminal Court (Rome Statute). They give the Prosecutor the right to decline to initiate an investigation or suspend a prosecution. In these cases, the interests of justice act as a basis for the Prosecutor to refrain from any action. This article argues that due to their non-positivist character, the interests of justice could serve as the platform also of prosecutorial action, acting as the legal vehicle for a broad interpretation of the Rome Statute in the name of justice. Nevertheless, such broad, interests of justice-instigated interpretation, cannot but have positivism as its outmost limit. The Rome Statute is an international criminal law instrument and international criminal law is governed by the legality principle, which narrows any hermeneutical endeavors. Along these lines, this article examines the nexus between the expansive interpretational interests of justice function and its limits by referring to cases where the International Criminal Court (icc) was called to endorse or not a broad interpretation of notions included in the Rome Statute. The article examines cases arising from situations referred to the icc by States and by the un Security Council.