International Criminal Jurisprudence Research Articles

African Leaders and the ICC: Much Ado about Immunity

The paper examines international criminal jurisprudence with a view to putting the issue of sovereign immunity in the right perspective within the context of the furore between African States and the International Criminal Court (ICC). The research is library based. It relies on secondary materials from learned journals, and textbooks by most learned international publicists, reports of the variegated international tribunals and so forth. The paper found that jus cogens infractions are not attributable to a State and so cannot be imputed to it for the purpose of grounding immunity ratione materiae. It concludes that there is nothing as absolute immunity and that withdrawal from the ICC will not provide the reprieve from prosecution which African leaders seek.

The Inconsistencies of Age-Related Incapacity Thresholds in International Law: Child Rape Victims at a Disadvantage

Abstract Over the past few decades, the definition of rape has been the focus of widespread attention in international law. However, the circumstance of age-related incapacity in its definition has been left unexplored. While no definition of an age of sexual consent is found in international criminal law, though suggestions have been made in international criminal jurisprudence, other international legal frameworks have included clear and well-defined thresholds in their definitions, i.e. recruitment, trafficking, sale, prostitution, and pornography. This article argues that the vagueness of an undefined threshold in the rape definition, and the existing inconsistencies when compared with the other frameworks, are at odds with the evolving trends in international law on the treatment of consent and child victims. This leaves child rape victims at a comparative disadvantage, especially adolescent girls, who pervasively experience the consequences and harms derived from this vagueness and inconsistency.

Preventing the Forcibly Displaced from Returning as Persecution and Inhumane Act under International Criminal Law and the Rome Statute

Abstract Preventing the forcibly displaced from returning to the territory from which they were unlawfully expelled has not received adequate attention under international criminal law. This article addresses this gap by focusing on denial of return as a crime against humanity. It evaluates international criminal jurisprudence including the proceedings concerning the Rohingya and evolving human rights standards to show that prevention from returning is a serious and continuing denial of fundamental human rights which inflicts great suffering. As such, it may qualify as persecution and/or an inhumane act under the Rome Statute. The ramifications of this on the temporal and territorial jurisdiction of the International Criminal Court and the principle of legality are important especially in situations of protracted displacement. The article demonstrates that although criminalisation of denial of return is not a panacea, it is instrumental in tackling forced displacement which affects millions across the world.

Reparations without reparation: A critique of the Germany–Namibia Accord on colonial genocide

Reparation is meant for effect: to make amends. The offer of EUR 1,100 million by the Federal Republic of Germany to the Republic of Namibia, in an agreement of June 2021, for the genocide committed during the colonial-era occupation encourages debate about the categorisation and effect of the payment in the fields of human rights and international criminal justice. The genocide was characterised by the loss of the lives of thousands of people among the Nama and Herero of Namibia between 1904 and 1908. In a pioneering analysis, this article reiterates the principles of reparation in international criminal jurisprudence as a yardstick for this significant gesture of remorse. Reparations must meet both procedural and substantive requirements: they must be proportional, appropriate, prompt and adequate, and they must culminate from a process that ensures the meaningful participation of victims and judicious regard for all relevant factors and circumstances. Reparations for the sake of it, without the remedial effect, make a mockery of justice. An agreement for development aid, however generous, cannot meet the standards of reparation for gross human rights violations. It does not oust the jurisdiction of a competent court on the matter and the pre-emptive clause intended to make the financial component in the Germany–Namibia Accord conclusive is unenforceable. This significant discourse must be guided by clearly set standards to avoid replicating the power dynamics which characterised the commission of the crimes that are intended to be addressed. Furthermore, the distinct treatment of victims on the basis of race and colonial history is repugnant and not defensible. A formidable institutional framework is needed for reparations for the trans-Atlantic trade and trafficking in enslaved Africans and colonial crimes, comprising a United Nations independent mechanism and a specialised committee of the African Union, supported by national committees of the respective countries.

Hidden Constructs of Sexual Victimization of Men and Boys in Armed Conflict: Prosecutorial and Jurisdictional Trajectories of the International Criminal Courts and Tribunals

During armed conflict, sexual violence against women regularly takes on different forms than against the male gender. Frequently, men and boys are attacked either by coercion to witness sexual violence committed against their family and community members, or to rape and sexually assault others. The shared feature of both forms of such victimization is that they rarely constitute an attack on the individual alone. Instead, they are utilized by perpetrators as a war tactic to debase entire communities. Protection for male victims of these forms of sexual violence is limited due to a disconnect between formal statutory provisions under International Criminal Law (ICL) criminalizing sexual violence and the jurisprudential interpretation thereof. The jurisprudence of the international criminal courts and tribunals has been widely criticized in academic literature for misclassifying sexual harm against men and accommodating it incoherently under various provisions other than the explicit sexual violence norms. The prosecutorial and jurisprudential dichotomy partly originates in the lack of clarity surrounding these selected forms of sexual violence. In light of their devastating impact on men and boys, this article aims to map the inconsistencies within and between selected international criminal courts and tribunals and prompts to rethink current international criminal jurisprudence to coherently address and condemn such forms of sexual violence.

Toward the Special Computer Law of Targeting: 'Fully Autonomous' Weapons Systems and the Proportionality Test

One of the implications of “fully autonomous” weapons systems (AWS) as an independent decision-maker in the targeting process is that a human-centered paradigm should never be taken for granted. Indeed, they could allow a LOAC debate immune from that paradigm all the more because the underlying “principle of human dignity” has failed to offer convincing reasons for its propriety in international legal discourse. Furthermore, the history of LOAC tells us that the existing human-centered approach to the proportionality test—the commander-centric approach—is, albeit strongly supported and developed by states and international criminal jurisprudence, particularly since the end of the World War II, nothing more than a product of the time. So long as fully AWS exhibit the potential for better contribution to the LOAC goals to protect the victims of armed conflict than human soldiers, one could thus seek an alternative computer-centered approach to the law of targeting—a subset of LOAC—tailored to the defining characteristics of fully AWS in a manner to maximize their potential as well as to make the law more responsive to the needs of ever-changing battlespaces. With this in mind, this chapter aims to relativize the absoluteness of the existing human-centered approach to the proportionality test—which is not to deny the role of humans in the overall regulations of fully AWS whatsoever—and then, away from that approach, to propose an alternative one dedicated to fully AWS for their better regulation in response to the demands of changing times.

The Anti-slavery Potential of International Criminal Justice

The articles in this Special Issue make clear that international criminal justice will not eradicate modern slavery. However, they also make clear that the answer to the question ‘What role does international criminal justice have to play in the fight against modern slavery?’ is not simply: ‘None.’ Understanding the specific utility of international criminal justice in the fight against slavery requires understanding international criminal justice in historical, social, economic, political and broader legal context. It means recognizing that the existing tools of international criminal justice were sharpened to address international crimes that occur during armed conflict and mass atrocity, while exploring how those tools can be USED, adapted and developed to address the systematic injustices that underpin contemporary forms of slavery. It means recognizing that international criminal jurisprudence can shape human rights law, domestic criminal justice and even international business regulation c but also recognizing that institutions in each of those regimes will adapt and mould international criminal norms to their own contexts. It means recognizing that corporate actors are not clearly, at present, subject to international criminal responsibility; but also recognizing that international criminal law can indirectly shape corporate behaviour through other, more indirect, transmission vectors, notably prosecution of individual directors and statutory due diligence requirements. In this conclusion, I reflect on the cross-cutting insights that emerge from the articles in this Special Issue about the varied and nuanced roles that international criminal justice is playing c and could play c in the fight against slavery. I consider the policy implications that flow from these insights, and close with some practical suggestions for strengthening the role that international criminal justice plays in the fight against contemporary forms of slavery.

“Who will be left to tell the tale?” Recordkeeping and international criminal jurisprudence

The article sets out to pose the question ‘Is it possible for an archive to aid the process of reconciliation?’ Is the scale of a given event, in some cases, insurmountable in terms of reconciling the parties? The graphic nature of the archives and the issue of psychological impact of an archive on the archivist is explored. It is contended that through outreach and dissemination of the contents of the archive, it is possible to provide to the affected communities the information of what the international community has done in terms of judicial redress. Archives can also fulfil-dual roles and this issue is touched upon in that the purpose and organization of the archive is changing from an active records center or a tool of repression to suit a future audience of researchers or to aid reconciliation.

DEONTOLOGICAL RETRIBUTIVISM AND THE LEGAL PRACTICE OF INTERNATIONAL JURISPRUDENCE: THE CASE OF THE INTERNATIONAL CRIMINAL TRIBUNAL FOR RWANDA

FINK, JASON BENJAMIN, Deontological retributivism and the legal practice of international jurisprudence: the case of the International Criminal Tribunal for Rwanda, Journal of African Law, 49, 2 (2005): 101–131Contemporary international criminal jurisprudence has fashioned a legal paradigm encoding the crime of genocide as a violation of moral law. Structured by an ethos of deontological retributivism, it has posited a set of institutional and conceptual mechanisms designed to situate and stabilize the meaning of genocide. The articulation of this paradigm has entailed the bracketing or suspending of alternative discursive strategies and institutions, particularly those inscribed with a traditional/contextual value. Configuring the social fact of genocide under a normative framework of retribution often fails to address the realities and needs of the local populations who have suffered through severe social trauma. In the intensely unstable space of post-genocidal societies, such as Rwanda, the mandating of formal legal structures by international judicial authorities may constitute a genuine barrier to the critical appropriation of the fact of genocide into the communal memory by imposing a set of privileged frameworks without recognizing the formal integrity and constructive potential of local strategies.