International Criminal Justice Research Articles

Is International Criminal Law Ready to Accommodate Online Harm?

Abstract New technologies have the potential to both advance accountability for international crimes and to aid in their perpetration. Most of the existing literature to date focuses on the former, such as how digital evidence can be used in international criminal law (ICL) proceedings, or in the case of the latter, has taken a mainly rights-based approach (such as how technology can infringe upon rights to privacy or freedom of expression). This article answers the understudied question of how technology can serve as the vehicle by which certain international crimes are committed or lead to new offences, and how current ICL frameworks may be able to accommodate these ‘online harms’ to ensure that the law recognizes the full scope of harms caused to victims, who currently may not be able to access redress through the international criminal justice system. It identifies three examples of online harm that have a foreseeable nexus to the perpetration of international crimes, including hate speech and disinformation, sharing footage of crimes to the internet, and online sexual violence. The article evaluates the online harms alongside similar harms that have been encompassed by core ICL crimes, including genocide, crimes against humanity, and war crimes, to assess how online harms might fit into ICL frameworks (e.g. as an aggravating factor at sentencing, a new mode of commission of an existing crime, or a new crime). It concludes that some types of online harm may be more feasible to account for than others, and identifies where the existing ICL architecture falls short, which is important for providing a basis for future research as to how to best include novel online harms under ICL. Finally, the article emphasizes that as technology will only continue to develop and serve as a vehicle for an increasing array of harms, finding ways to account for online harm and bring redress to victims should be an issue at the forefront of ICL.

The International Criminal Court: current problems and ways of their solution

The article examines the current problems of the functioning of the International Criminal Court, in particular the main problem – insufficient expected effectiveness, problematic issues of jurisdiction, initiation of proceedings, duration of proceedings and its influence on the effectiveness of the ICC, as well as the issue of proper cooperation between the ICC and states.
 It is emphasized that the establishment of international criminal justice bodies was a response to impunity for committed international crimes, which arises due to the ineffectiveness of national legal systems in the fight against international crimes. It is emphasized that the effectiveness of the International Criminal Court largely depends on cooperation with states and international organizations, as well as available financial and human resources.
 It is concluded that there is an urgent need for the international community to review the mechanisms of response to those states that, by not extraditing suspects, de facto contribute to impunity for committed international crimes; effective countermeasures and sanctions by states and international organizations should be applied to them.
 Emphasis is placed on the expediency of amending the Rome Statute in accordance with Article 121 of the Rome Statute, giving the International Criminal Court unconditional ratione materiae jurisdiction over the crime of aggression, as is the case with genocide, crimes against humanity and war crimes. It is emphasized that the International Criminal Court should become a permanent court that will have such jurisdiction; in its turn, this will reduce the risk of committing new armed aggressions.
 A partial solution to the problem of the excessive length of criminal proceedings at the ICC is proposed by increasing funding and recruiting additional personnel.

Defining an International Crime: Historical and Contemporary Developments

Despite the desirability of the identity of crimes being specific, the category of conduct constituting international crimes remains blurry. In consequence, the controversy over what is, or is not, an international crime has continued to rage on. Different criteria have been used to classify a specific conduct as an international crime. As a source of authority, some authorities point to the works of scholars, treaties, legal systems, the statutes of international criminal courts, or even works of the International Law Commission, to identify an international crime. Nevertheless, unanimity in identification remains elusive. Thus, this article examines differing perspectives on the constituents of international crimes. The analysis is relevant because the definition of crime forms the bedrock of international criminal justice. However, the paper finds that leaving the category of conducts constituting an international crime open, facilitates the inclusion of other grave or emerging forms of criminality, which may also rise to the threshold of the crimes within the jurisdiction of international criminal tribunals. Although this may appear advantageous, the need for predictability, consistency and uniformity in the categorization of an international crime cannot be overemphasized

Between Accountability and Reconciliation: The Making of “the Victim-Centered Approach” at the International Criminal Court

Abstract The International Criminal Court is the first international court to have incorporated the newly recognized right of victims to redress. However, there remains considerable skepticism about how the ICC and, more broadly, international criminal justice serve the purposes of victim redress. This article examines the development of the ICC’s reparations policy from the standpoint of how constitutive rules of international criminal justice have been changed. It illustrates how conflicting views regarding victim reparations have formed different preferences within the institution, even among the judiciary. Unlike existing studies that tend to regard the ICC as a monolithic law enforcement institution, this article demonstrates that the victim-centered approach to reparations at the ICC is a compromise between two models: an accountability model that tries to confine the scope of reparations within the clearly defined liability of the convicted person; and a reconciliation model that aims at reaching a large number of victims to facilitate the rehabilitation of the community. The finding has two implications. First, although the study reveals severe tensions between individual accountability and social reconciliation, the tensions can be reconciled through creative judgments. Second, related to the first implication, the ICC is not just a law enforcement institution, but also a policymaking institution, which has considerable leeway in designing reparations policy.

외국 소재의 전자적 증거 수집 방식과 증거능력 부여 방안에 관한 연구

In order for investigative agencies to acquire electronic evidence located in a foreign country, mutual legal assistance based on the International Criminal Justice Mutual Aid Act and Interpol Collaboration are used. In some investigations, legally obtained user account information is used to access overseas servers. The international community has already implemented the European Convention on Cybercrimey, which enables prompt preservation, provision, and submission of digital information for ISPs located in each jurisdiction through cooperation between the central authorities, so orders are also issued to ISPs under direct foreign jurisdiction. The system is being improved in such a way that this way is possible, and the same procedure is reflected in the administrative agreement based on the CLOUD Act and the European Electronic Evidence Regulation. However, Korea has not signed such a treaty or agreement.
 For foreign electronic evidence collected using these means, there is a possibility that the collection procedure of the requested country may violate the domestic law of the requesting country due to the different procedural laws between each country. In such a case, whether the content or degree of the violation violated the actual content of due process and whether the exclusion of evidence is in accordance with the constitutional idea and the criminal procedure law procedure for the realization of criminal justice can be judged individually. However, it is not reasonable to deny the admissibility of evidence based on a simple violation of the procedure on the basis of trust or reciprocity among judicial institutions in the international community.
 On the other hand, non-statement digital evidence is not the truth of the content, but the existence of textual information of the same content itself as evidence. Therefore, it is reasonable to regard such evidence as evidence and not to apply the hearsay rule. Even declarative digital evidence can correspond to business records, and it is possible to confirm and verify the circumstantial guarantee of trustworthiness from foreign institutions in the future. In the end, even for electronic evidence collected in foreign countries through cooperation or cooperation in investigations, it seems necessary to establish a separate exception to the recognition of Probative Force.

Acceptance of international criminal justice in Bosnia and Herzegovina

When the XIV Winter Olympic Games took place in Sarajevo in 1984, nobody expected that war would begin only seven years later and kill hundreds of thousands of people living in the former Yugoslavia. That millions of them would be ethnically cleansed and displaced, most of them for good. That hundreds of mass graves would be scattered around, and that war crimes unseen in Europe since the Second World War would be repeated. That severe crimes like systematic rape, torture, and massive destruction of cultural heritage and property would finally culminate with genocide. Consequently, Bosnia and Herzegovina (and the countries of the former Yugoslavia) triggered an immense boost in international criminal law and international criminal justice. That experience, during and after the war that took place from 1992 to 1995, can offer lots of valuable input. Not everything that had been done was good or perfect, but it was of great importance for the further development of international criminal law and international criminal justice in a world that is still searching for appropriate responses to the grave war crimes that occur every day, and for the development of mechanisms and practices that will ensure justice for victims and society and be perceived as such. The atrocities of the Bosnian War served as a wake-up call for the international community, highlighting the urgent need for mechanisms to hold perpetrators of such heinous crimes accountable. The establishment of the International Criminal Tribunal for the former Yugoslavia marked a significant milestone in this regard, pioneering the prosecution of individuals responsible for genocide, war crimes, and crimes against humanity committed during the conflict. However, challenges persist in ensuring access to justice for all victims and addressing the root causes of conflict to prevent future atrocities. The lessons learned in Bosnia and Herzegovina remain crucial in shaping efforts to achieve lasting peace and accountability worldwide.

Peculiarities of international criminal liability: legal realities and past experience

The relevance of the topic of international criminal responsibility in the modern context is emphasized not only by the need to improve the mechanisms of legal response to violations of the international legal order but also by the need to develop and apply effective strategies to combat the most important crimes. Crimes against humanity, war crimes, and genocide are catastrophic manifestations of violations of the basic principles of humanity and international law, which require immediate and decisive measures to ensure the accountability of those responsible for such acts.
 In the conditions of a constantly changing world order and new challenges facing the international community, the proper study and analysis of legal realities and experience in the field of international criminal justice acquires importance.
 In the context of the evolution of international criminal law and the deepening of international cooperation in the field of justice, this study sets itself the task of identifying and analyzing the trends in the development of international criminal responsibility, focusing on the need to improve existing tools and define new strategies for ensuring the effectiveness of justice in the context of changing challenges in the modern world.
 This research, aimed at promoting understanding and solving modern challenges in the field of international criminal responsibility, is of great practical importance for the development of effective measures to counter international crimes and to hold accountable those who commit such violations.
 The main importance of this study lies in the fact that it contributes not only to the scientific understanding of the theoretical aspects of international criminal responsibility but also to the formulation of practical recommendations for improving the existing mechanisms of countermeasures and bringing guilty persons to justice. The scientific contribution to this topic will allow us to develop and implement new strategies for ensuring justice, as well as to determine the ways of further development of this complex and important field of international law.

Death, Grief, and Mourning in an ICTY Film: Exploring Relational and Non/Living Worlds

Abstract International criminal justice is filled with living, dead, and dying bodies. While witnesses detail atrocities in the courtroom, such testimonies are largely considered for their evidentiary value to establish innocence or guilt. In this article, I explore how death, grief, and mourning are represented at the International Criminal Tribunal for the former Yugoslavia (ICTY). I focus on the ICTY documentary, Crimes Before the ICTY: Višegrad, to analyse how filmic representations of international criminal justice register dead, dying, and grieving bodies. Drawing on Queer Death Studies and relational ontologies, I explore the more-than-human and non/living worlds through which death, grief, and mourning are represented in the film. A queer relational approach reveals and challenges the construction of the dead as evidence and death worlds as crime scenes. This approach illuminates how the natural world and buildings, bridges, and artifacts are vestiges, witnesses, and sites of death and grief in Višegrad. My analysis explores how these representations in the ICTY documentary reinforce civilizational logics and reductive representations of violence at the same time as they illuminate relational encounters of death and dying in international criminal justice, thus enriching attempts to see, know, and feel loss in the wake of violence.

Haunting justice: queer bodies, ghosts, and the International Criminal Tribunal for the former Yugoslavia

This article was named the winner of the 2022 Enloe Award. The committee commented:   Using a queer hauntological approach to read queer bodies in the International Criminal Tribunal for the former Yugoslavia in the seemingly innocuous language of judges, legal counsels, and witnesses, the author illuminates the ways in which queer lives are made absent in international law and in experiences of war, peace, and justice. By rendering queer lives as “ghosts,” the author shows how the “straight, binary, and cisgender subject,” be it victim or perpetrator, is maintained in international criminal justice. Going beyond critique by centering a queer archive created by queer people about their experiences of the war, the article stood out to the committee as an important contribution to international law and beyond. By rendering queer lives “intelligible and grievable and as lives that matter,” it continues Cynthia Enloe’s legacy of finding sex and gender where it has been hidden. Ultimately, the author does not call for the inclusion or assimilation of queer experiences into liberal international criminal justice discourses, which co-opt and empty radical politics. Successfully showing how “haunting” represents a radical call for “alternative worlds,” the article provides an original challenge to move beyond mere inclusion. The committee commends the author for their careful scholarship and deep theorization.

The Special Tribunal for Lebanon

Abstract The article aims to discuss some of the underlying factors that have significantly hindered the ability of the Special Tribunal for Lebanon (STL, or ‘the Tribunal’) to fulfil its mandate — bringing those responsible for the assassination of former Prime Minister Rafik Hariri and others to justice, and thereby bringing justice to victims. Since its inception, the Tribunal has been received with mixed feelings. On the one hand, given the inability and unwillingness of Lebanese domestic courts to deal with gross human rights violations — including heinous terrorist crimes — the establishment of a judicial body was considered indispensable to ending impunity for such crimes. On the other hand, the Tribunal has been perceived as selective and the outcome of a politically-convenient temporary impetus. Adopting a Third World Approach to International Law, the article argues that the model applied in establishing the STL adopted most of the shortcomings of international criminal justice. Furthermore, considering the perceptions of the Tribunal’s legacy among victims and the public in Lebanon and in the wider region, it is no less contentious from a transitional justice perspective. The article concludes that such a model, due to its legal, structural, policy, and management shortcomings, has failed to fulfil its mandate and there are lessons that can be learnt from this contentious experience.

Prinudna trudnoća u međunarodnom krivičnom pravu

The main purpose of this paper is to examine the crime of forced pregnancy within the framework of the International Criminal Law (ICL). The author notes that acts of sexual violence, including forced pregnancy, have long been neglected in the system of international criminal justice. The crime of forced pregnancy has particularly been one of the most controversial issues during the negotiations regarding the text of the Rome Statute of the International Criminal Court (ICC). Delegations from several states that prohibit abortion were concerned that the adoption of the crime will expose their nationals to the criminal prosecution for forced pregnancy. A solution was a compromise which moved the crime of forced pregnancy away from the original concept of its proponents - an emphasis of the crime, as it stands in the Rome Statute, is not on the denial of the abortion for women which have been forcibly made pregnant, but rather on the (physical) confinement of such women. Also, the result is a definition that is too complex to be of significant practical value, a demonstration of which is the fact that the ICC has just recently made its first judgement regarding the crime of forced pregnancy, even though this crime has been in the Rome Statute for more than twenty years. Having that in mind, the author argues that the crime of forced pregnancy is a classic example of the "overextension" of the ICL. Namely, the ICC should be responsible for prosecuting only the most serious international crimes which are of concern for the international community. Clearly, as it has been demonstrated in the Rome Conference, various states have very different opinions on this issue. Besides these topics, the author has also pointed out that the crime of forced pregnancy, within a framework of crimes against humanity and war crimes, is a distinct crime in relation to the crime of genocide. The main difference between those two crimes is in their material element.

Women in International Crime: A System Bound in Gendered Tropes Ties the Hands of the International Criminal Justice Endeavour

Women in International Crime: A System Bound in Gendered Tropes Ties the Hands of the International Criminal Justice Endeavour

Defending Brother No. 2: on the Politics of International Criminal Justice and the Limits of Criminal Defence

Defending Brother No. 2: on the Politics of International Criminal Justice and the Limits of Criminal Defence

The presence of the “internationality” of international criminal justice

Justice is a perpetual topic for mankind. International criminal justice is generally regarded as criminal justice or global justice in academia, but neither of them can provide comprehensive content for international criminal justice alone. In order to make international criminal justice be correctly understood, both theories must be integrated. But there is tension between the two propositions. In order to bridge the gap between the two theories, it is necessary to build a bridge for the integration of the two theories ― international criminal justice must incorporate the “international” element. “Internationality” is an indispensable element of international criminal justice. Through the historical investigation of the concepts of “global justice” and “criminal justice”, this paper believes that the International Criminal Court must fully consider the “international” characteristics of “individual” embedded in “state” when allocating “negative evaluation” between different cases. The authority of the International Criminal Court can be maintained only when the “internationality” of international criminal justice is fully considered by the International Criminal Court.

Paradox of Authority and the International Criminal Court

The creation of the International Criminal Court (ICC) has been one of the boldest progressive moves in the history of international relations. At the heart of the Rome Statute is a commitment to the spirit and principle of international criminal justice. States under the jurisdiction of the ICC agree to cede sovereignty over individual perpetrators suspected of genocide, crimes against humanity, and war crimes unless they are able and willing to prosecute perpetrators of these crimes at home. Even heads of state have not been immune from the formal legal authority of the ICC. Given the reach of its ambitions, it is unsurprising that the ICC has struggled to achieve some of its goals. It has, though, become a focal point for a vibrant and committed network of international advocates, lawyers, and civil society organizations committed to advancing international criminal justice. States also recognize the ICC’s importance. This article focuses on the impact of backlash on the authority of the ICC and on the status of international criminal justice.

Should We Call for Criminal Accountability During Ongoing Conflicts?

Abstract This article suggests an account in the language of criminal law that merits the language for criminal accountability over the language of human rights, as a form of accountability, when prosecution is not possible. Calling for the prosecution of those most responsible for international crimes seems to be feasible after the war has ended, or at least when there is a vision for a political transition, but the war in Syria is ongoing and a vision for political transition remains elusive. The Syrian conflict has produced almost all kinds of heinous crimes, yet there is no clear political will to hold the alleged perpetrators of atrocity crimes accountable. At the same time, calls for criminal accountability in Syria, and discourse to achieve international criminal justice are taking place before the civil war ends. This article relies on the expressive theory of punishment to assess the rationales of calls for criminal accountability during the ongoing conflict in Syria. Out of many rationales, the article notes that calls for criminal accountability open the possibility of punishment and send a message of condemnation to perpetrators as well as a message of acknowledgment to victims. Furthermore, using the language of criminal accountability as a basis for the calls is stronger than using the language of human rights. The article discusses the problem of standing to call those responsible for international crimes to account and proposes that our shared humanity provides the authority for such calls while also pointing out limitations of this approach.

A Hollow Enterprise: International Criminal Justice and Public Relations

Abstract Utilising a framework inspired by Edward Bernays, this article critiques public relations in international criminal justice. The article demonstrates public relations is a hollow enterprise comprised of one-way publicity and legitimation. Outreach and public information campaigns are endeavours reliant on standard messaging tactics that treat constituencies as uncritical and homogenous consumers. Such tactics reflect a deep and entrenched turn to marketing and image-management. Whilst such a turn may be inevitable, tribunals such as International Criminal Court need to establish meaningful relations with the public, developed through listening and a commitment to mutual co-learning that, in turn, can drive organisational improvements. In its absence, public relations is a mere exercise in presentation and will continue to lack significance in the contemporary information landscape

The ‘ideal victim’: A cage for victims’ narratives at the International Criminal Court

Abstract Despite Article 68(3) of the Rome Statute of the International Criminal Court (ICC) granting victims an autonomous standing in proceedings, victims’ participatory rights have often been tailored to fit within the retributive structure of the trials. This contribution aims to provide a different perspective on victims’ role and their narratives in proceedings at the ICC, building upon the expressivist model of international criminal justice and focusing on a specific strand that engages with the adjudication process’s performative and communicative features. In providing a better understanding of how victims’ narrative unfolds in trials at the ICC, the article addresses two issues: how the concept of the victim is constructed at the ICC; and whether and, eventually, how this construct impedes progress in recognizing their narratives in proceedings at the ICC. Concerning the first issue, drawing on criminologist Nils Christie’s theorizing of the ‘ideal victim’, it will be observed that the construct of victims in proceedings at the ICC reflects three main attributes: weakness; innocence; and dependency. The second issue shed light on the extent to which the emphasis on the ‘ideal victim’ can serve as a tool in the hands of institutional actors at the ICC to pre-empt, constrain and subordinate victims’ narratives, in a manner that oversimplifies victimhood. To impose a particular narrative upon victims’ experiences, three main procedural mechanisms have been identified: appropriation of victims’ interests; legal representation of abstract victimhood; and exclusion from the trial of victims who do not conform to the ideal victim.

A Critical Analysis of the Prosecution of Sexual and Gender-Based Violence at the International Criminal Court

The prosecution of crimes of Sexual and Gender-Based Violence (SGBV) has remained a challenging issue for international criminal justice. Given that in the past, crimes of sexual violence within the context of international armed conflict were not considered substantive crimes. This is evidenced in the non-prosecution of sexual and gender-based crimes at the Nuremberg and Tokyo tribunals despite the incontrovertible utilisation of the "comfort women system" in Tokyo during World War II. However, with the emergence of the International Criminal Court(ICC), there seems to be a reasonable but piecemeal progression of the investigation and prosecution of SGBV. Although, previous studies have reported that investigating and gathering evidence for SGBV is a continuing concern within the jurisprudence of the ICC. The recently decided cases at the Court especially demonstrate a development and dynamics in the prosecution of SGBV at the ICC. By employing a doctrinal research method, I spotlight the nuances and hurdles of sexualised crimes within the ICC. The author recommends gender mainstreaming in the investigation and prosecution of sexual violence in order to fill the gap.

Justice Swapped for Peace : Understanding Justice

One of the main themes in the analysis of the politics of international criminal justice has been the "Peace versus justice" debate. Though it could also help peace processes, the permanent International Criminal Court's position is sometimes regarded as a barrier to them. This study aims to provide a more sophisticated way to accurately evaluate the impact of the ICC by contrasting sometimes opposing viewpoints. In actuality, the Court may not fulfill either function solely.States and international organizations must uphold the obligation to prosecute when it is applicable in order to avoid sending the wrong message about the significance of the treaties that give birth to this duty, which could endanger their own populations and undermine the rule of law more broadly.