International Criminal Law Research Articles

Elisa Ortega Velázquez, Review of Tania Ixchel Atilano, International Criminal Law in Mexico. National Legislation, State Practice and Effective Implementation

Elisa Ortega Velázquez, Review of Tania Ixchel Atilano, International Criminal Law in Mexico. National Legislation, State Practice and Effective Implementation

جريمة الإبادة البيئية (دراسة تحليلية مقارنة في ضوء القانون الدولي الجنائي)

Humanity is at a crossroads concerning the protection of the ecosystem. The Scientific evidences refers to that the emission of greenhouse gases and the destruction of ecosystems will have catastrophic consequences for our common environment, despite the progress made in the field of international environmental law, But it has not reached the recognition and criminalization of this threat in international criminal law. Destruction and damage to the ecosystem can therefore be attributed to the anthropological nature of international criminal law. International efforts have emerged to criminalize environmental destruction, such as the policy paper submitted by the Office of the Prosecutor of the International Criminal Court for 2016, and doctrinal efforts to promote the addition of the crime of environmental genocide as a fifth crime within the context of crimes of which the International Criminal Court.

From Genocide to Ecocide. Essentials of a new category of international crime against humanity

The recent legislative initiative for the adoption of an amendment to the Rome Statute on ecocide as a new category of crime against humankind has an impressive normative background in the classical doctrine of international criminal law pioneered by Raphael Lemkin, in the prescriptions of the ethics, and in the discourse of an international community aware that the protection of the totality of life together with the ecosphere is currently the most urgent priority. Between 2019 and 2021, the Independent Expert Panel for the Legal Definition of Ecocide at the European Parliament developed a legal definition of ecocide. In the following article, I discuss 1) the nexus between genocide and ecocide, 2) the prescriptions of the ethics of responsibility for the future of all life on earth, further justifying the need to prosecute the perpetrators of ecocide, 3) specificities of ecocide as a comprehensive and expectedly effective category of international criminal law in comparison to the human right "to" a healthy and legally protected environment and in comparison to constitutional ecocentric rights, as more declarative but less effective. When adopted into the Rome Statute, the new category of crimes against humankind may equip the International Criminal Court in The Hague with an effective legal tool to prosecute perpetrators of ecocides.

The Draft Italian Code of International Crimes

Abstract In a major effort of coordination, on 31 May 2022, the Committee of Experts appointed by the Italian Minister of Justice delivered the draft Italian ‘Code of International Crimes’ (CIC), whose purpose is to fully implement the Rome Statute into the domestic legal system by adopting substantive legislation on international crimes. The aim of this article is to give an account of the work of the Committee, outlining the prospective legislation and presenting the choices made within the process of implementation. The draft Italian law analysed here represents one example of the different implementation processes which followed the adoption of the ICC Statute, both with respect to the chosen method of implementation — the adoption of an ad hoc code of international crimes — and with respect to some substantive choices, such as the introduction of the crime of cultural genocide and the responsibility of legal persons for international crimes. Ensuring coherence with the fundamental principles of the domestic legal system was of course of utmost importance and guided the entire Committee’s work, in light of the state’s margin of appreciation within the implementation process. In this sense, the implementation process underlying the draft CIC entailed both a transposition of concepts and elements of the ICC Statute into the domestic legal order (internationalization of national laws) and their adaptation to the specific features of the domestic system (nationalization of international criminal law).

The Award in Waste Management v Mexico (No 2) and Its Influence on the Minimum Standard of Treatment

Abstract Judge Crawford’s contributions to public international law were immense and covered a vast field, including State responsibility, international criminal law, State immunity, international legal personality, the law of the sea, and the protection of human rights. The focus of this essay is on Judge Crawford’s work in the field of international investment law, to which he made substantial contributions as a scholar, as an arbitrator, and as counsel, at a time when the field of international investment law was in a relatively embryonic stage of development. The contribution focusses in particular on the award of the tribunal constituted under Chapter 11 of the North American Free Trade Agreement (‘NAFTA’) in Waste Management v Mexico (No 2) (‘Waste Management (No 2)’), in which Judge Crawford was appointed by the ICSID Secretary-General as the presiding arbitrator. The award contains an important dictum on the content of the minimum standard of treatment under Article 1105 of NAFTA, which has been highly persuasive within the NAFTA context, in other investment treaty claims, and in the subsequent treaty practice of States. The Waste Management (No 2) tribunal brought much-needed rigour to a field in which ad hoc tribunals were adopting broad interpretations of treaty obligations and imposing onerous obligations on States.

When International Legal Standards Meet Transitional Justice Processes

Abstract The present contribution explores the interactions between international legal standards, as determined by the Rome Statute of the International Criminal Court (ICC), and national law before the Colombian Special Jurisdiction for Peace (SJP), and studies their respective rationales. It contrasts two situations: divergences between the two regimes, on the one hand, and their convergences on the other. First, it analyses three instances where the SJP Statute diverges from international criminal law, which resulted from decisions of the executive and legislative authorities in Colombia when drafting the Statute, namely: the SJP’s restorative penalties; the differentiated treatment of members of armed forces; and the notion of command responsibility. The authors offer three possible explanations for these departures of the Columbian legislation from international legal standards: Colombia’s willingness to carry out judicial proceedings at the national level instead of having recourse to the international community; the context of the negotiated peace in the country; and the national nature of the SJP. Second, the article addresses the convergences by examining recent practice of the judiciary in light of Macro Case 01 before the SJP, which shows a tendency towards the implementation of international legal standards in the SJP’s jurisprudence. The authors discuss the possible justification for this convergence, arguing that the adoption of international standards serves both to demonstrate the genuine character of the Colombian transitional justice process and subsequent judicial proceedings, and to allow for the closing of the preliminary examination before the ICC.

The Weight of the Decision: Just War Thinking in Congolese Armed Conflict as Seen Through the Lens of Lieve Joris’s The Rebels’ Hour

Ethnic violence and armed conflict continue to ravage the Democratic Republic of the Congo (DRC), particularly its eastern provinces, nearly two decades after the official 2003 end of the Congolese ‘Wars of Liberation,’ which have cost over four million lives since 1996. Traditional Western mindsets—grounded in the doctrine of the just war theory, which informs much of international humanitarian law and international criminal law—find the ethical underpinnings of this violence extremely difficult, if not impossible, to fathom. Through her novel, The Rebels’ Hour, Belgian author and journalist Lieve Joris has, albeit unintentionally, graced us with an eloquent case study with which to explore the 1996–2003 Congo Wars through a just war theory lens. This article briefly describes the historical and doctrinal contexts of Joris’s novel, and traces in Just War terms the story she tells of its protagonist, a fictitious rebel commander. After discussing the implications of the just war theory posed by the situation Joris describes, this article concludes that the West can draw a moral lesson from Africa, and recommends Joris’s novel to Western readers as an excellent entrée to a better ethical understanding of African armed conflicts.

The State of the International Criminal Court, of Special Tribunals and of International Criminal Law: A Concise Review

The State of the International Criminal Court, of Special Tribunals and of International Criminal Law: A Concise Review

Legal Humility and Perceptions of Power in International Criminal Justice

Abstract This article examines how judges and lawyers working in international criminal courts see their authority in relation to power exerted by states, international organisations and private actors. We draw together ethnographic research inside the International Criminal Tribunal for Rwanda (ictr) and the International Criminal Court (icc) that examined perceptions of the interactions among local, national and international legal regimes and the potential for accomplice liability for arms traders under international criminal law. Overall, we show that the legal actors in these courts routinely understood their power as severely limited by concurrent sites of private and public authority. Building on ideas of legal humility, we argue that this should be understood as ‘selective humility’. This humility demonstrated a reticence among these legal actors about what internationalised courts can achieve while offering an argumentative defence against critiques of this legal practice.

Ukraine and the Double Standards of the West

Abstract The West, under the leadership of the US, EU and NATO, claims to be defending a rules-based international order by way of its support for Ukraine, including its call for full accountability. Regrettably, however, this claim fails to fully convince given the inconsistencies in the West’s approach to international (criminal) law. I will develop this counterclaim in three steps: first, I will argue that the Western approach to the Russian aggression is by no means universally accepted, especially not in the Global South (Part 2). Secondly, I will try to explain, at least partly, the reason for this limited support by pointing out both historical and more recent Western inconsistencies with regard to international law (Part 3). On this basis I will then, by way of conclusion, call for (greater) Western consistency in international law, while formulating some caveats at the same time (Part 4).

Addressing the accountability void: War crimes against persons with disabilities

AbstractAcademics rarely raise the need to consider persons with disabilities when preventing, investigating and prosecuting international humanitarian law (IHL) violations. Worse still, no actual attempts have been made to include a disability perspective into practical guidance and monitoring mechanisms. This article addresses that void by laying out how existing yet unutilized IHL obligations can be leveraged to repress and suppress disability-based IHL violations. In doing so, the article will detail how fact-finding approaches, criminal investigative processes and reporting methods for IHL violations can be inclusive of persons with disabilities and thus more appropriately address the endemic under-representation of a disability perspective in the planning and execution of military operations during armed conflict and the specific crimes they thereby suffer. Additionally, this article will articulate concrete changes that should be made to international criminal law procedures for prosecuting war crimes to provide recognition and accountability for disability-based IHL violations, as has been done for violations against women and children. Finally, this article will diagnose the state of the law to address any legal challenges or hurdles that may hamper the inclusion of a disability perspective in fulfilling the IHL obligation to reduce and address violations of humanitarian law.

In the Absence of a Tribunal, Can UN Investigative Mechanisms Ensure Justice for Victims of Rape as a Weapon of War?

Abstract This article explores the evolution of UN fact-finding mechanisms as a method of pursuing legal accountability for violations of international criminal and human rights law, specifically sexual and gender-based violence and violations of sexual and reproductive health rights in conflict situations. The article argues that, in order to effectively contribute to the task of securing individual accountability for violations of international criminal law, while also pursuing political accountability for mass abuse of human rights, the UN system of fact-finding mechanisms must be reformed. The mandates of Commissions of Inquiry must be stripped back to their core function of investigating human rights abuse, while Novel Investigative Mechanisms take over the individual criminal responsibility mandate. Until both these functions are given separate and adequate attention by properly resourced fact-finding mechanisms, victims of abuse such as sexual and gender-based violence and violation of sexual and reproductive health rights in countries without recourse to international courts will be denied justice and recognition through UN channels.

Watershed Moment or Same Old?

Abstract This note places the revitalization of international criminal law spurred by the international community’s response to the large-scale commission of core crimes in Ukraine in the aftermath of Russia’s February 2022 invasion into a broader (geo)political context. The unprecedented financial and operational support the International Criminal Court (ICC) Prosecutor has received since raises questions about its implications for the future of international criminal justice and the ways forward for the ICC and the Rome Statute system. The ICC states parties should avoid turning this crisis into a special case for international criminal law enforcement and seize the ‘Ukraine moment’ to remedy rather than perpetuate existing enforcement asymmetries.

Ethnic Cleansing as a Distinct Crime under International Law: Assessing the Case of Forcible Transfer of Ethnic Koreans in the Former USSR(1937)

The forcible transfer of ethnic Koreans in 1937 marked the first precedent of the policy of wholesale eviction and displacement of populations as an instrument of ethnic cleansing in the USSR and became a pattern during and after World War II, when different ethnic minorities amounting to around 6 million people have been uprooted from their homes, with 1 to 1.5 million estimated to have perished as a result of forced internal displacement.
 The present research considers the forced internal displacement of the ethnic Korean population in the USSR to be an act of ethnic cleansing, which is a mass atrocity crime and a blatant human rights violation. Inability to bring the perpetrators to justice for forced displacement of the entire civilian population of ethnic Koreans in the USSR, which has caused the physical extermination of several thousand people and the destruction of their socio-economic infrastructures and culture, will remain in history as the most serious form of impunity and the most flagrant violation of the fundamental right of victims to justice. The state cannot be held accountable for this wrongful act since the Soviet Union, as a subject of international and geopolitical reality, no longer exists and ethnic cleansing has not yet been recognized as an independent crime under international law.
 International law sets out the human rights and each State and other authorities have a prime responsibility and duty to protect, promote and implement all these rights and fundamental freedoms, and it is essential to carry out protection activities at the national and international level. While the prohibition of forced displacement itself has been a well-established feature of international criminal law since the Nuremberg trials following the Second World War, ethnic cleansing has not yet been written and signed in any UN treaty, which means Member States do not have to protect those who have fallen victim, since ethnic cleansing is still not a criminal charge in international law. But in 2005, a UN World Summit included ethnic cleansing along with genocide, war crimes, and crimes against humanity as four things from which each individual State has a duty to protect their populations.
 Despite the fact that forcible transfer and other practices involving the coerced, arbitrary or involuntary displacement of the civilian population from their homes, lands, and communities constitute a specific phenomenon, there is no single legal principle in international law that can be applied to all kinds of population transfers. In some circumstances, deportation or internal displacement as well as other forms of involuntary population transfers may amount to a crime against humanity, a crime of genocide or a war crime, depending on the factual elements of the case and the specific requirements of a certain crime.
 This study accordingly reviews population transfers as the constitutive element of such crimes as genocide and crimes against humanity, and transposes this comparative analysis into the context of ethnic cleansing.
 Every state has the responsibility to protect its population from four mass atrocity crimes: genocide, war crimes, crimes against humanity (that have not yet been codified in a separate treaty of international law), and ethnic cleansing (that has not been recognized as an independent crime under international law). The term ‘ethnic cleansing’ itself has been acknowledged in judgments and indictments of the International Criminal Tribunal for the Former Yugoslavia, although it did not constitute one of the counts for prosecution. One aspect of the criticism of the terms ‘ethnic cleansing’ focuses primarily on the fact that many state governments use this term even when an incident can be classified as genocide in order not to use state resources or taking action against the perpetrating State.

Asset Recovery for Victims of “Binary Option” Case in Review of International Criminal Law

The Binary Options Trading Platform, also known as Binomo, is becoming increasingly popular due to the massive number of advertisements appearing on Youtube, affiliates who are influencers have caused many application users to disguise themselves as trading investments which then fall victim to it. Indra Kenz has been named a suspect in fraud and money laundering under the guise of Binomo investment. The flow of funds for this investment is indicated to a number of countries in the world, not only in Indonesia, so the Binomo case is included in the realm of international crime. In this case can the binomo victim's money be returned? In this study, the empirical juridical method is used, referring to written regulations/laws and then analyzing how it is implemented in the field. This study emphasizes the rules in legal science (legal aspects) and the practice carried out in the field. This study also discussed crime without criminal prosecution by using the NCB Asset Forfeiture concept. This research is descriptive, using primary legal materials and secondary legal materials. Data collection techniques with a literature study of legal materials are also carried out. The results of the study found that it is necessary to expand and add international legal regulations in implementing the return of assets resulting from transnational crimes so that assets resulting from crimes with indications of money laundering can be confiscated and returned to victims, as well as an effective mechanism for returning assets resulting from crimes, namely through civil lawsuits against assets.

Rachel Auerbach and the Eichmann Trial: A New Conception of Victims’ Testimonies

ABSTRACT Since the 1990s, international criminal law has struggled to find the proper role for victims in mass-atrocities trials. Notwithstanding the rise of the victim-centered trial, victims still participate in these trials mainly as witnesses for the prosecution, but not as full and proactive participants. In this article, I return to the forgotten contribution of Rachel Auerbach (1903-1976), a Jewish-Polish journalist, historian, and Holocaust survivor, and explore her important contribution to the Eichmann Trial, where she helped shape a new paradigm of a victim-centered atrocity trial in the wake of World War II. Auerbach's vision for the trial, as I shall present in this article, can be understood as an early precursor of later developments in both international criminal law and, more broadly, in the field of transitional justice. The contribution of women to the development of international criminal law has been marginalized for many years. Similarly, Auerbach's contribution to the Eichmann Trial has long been viewed as merely technical, limited to finding relevant witnesses for the trial as part of her work as the director of the Testimony Collection Department of Yad Vashem. I show that Auerbach had a groundbreaking vision of the Eichmann Trial and of the way law should perceive victims' testimonies in such trials, based on her “translation” of the legacy of the clandestine Oyneg Shabes archive enterprise in the Warsaw ghetto into a legal setting. In her view, the trial would become victim-centered, not only due to the survivors' testimonies, but also because it would recognize their initiative and agency in promoting a new conception of testimony. I argue that her approach to victims' testimonies and its connection to the crime of cultural genocide are still highly relevant to the ongoing legal and historical discussion about atrocity trials.

Successful Human Rights Implementation? Victims of Crime and the Swedish Example

ABSTRACT Consideration of victims and how best to acknowledge their rights and position in the criminal prosecution process has become an intrinsic part of the drafting and negotiation of new international criminal law instruments. In studies of states’ implementation of international victims’ rights, Sweden often places at the top of the class. This article challenges the concept of successful implementation of human rights norms by critically analysing the conformity of Swedish law with international legal obligations towards victims of crime. It further contributes to existing literature describing the factors that may facilitate or obstruct such implementation, and demonstrates that Sweden’s position as a model of successful implementation is more the result of the historical position given to victims of crime in the country than of its commitment to live up to its international obligations. The article also raises doubt as to the Swedish government’s commitment to assuring that Swedish national law upholds its present conformity with international law norms, protecting victims into the future.

ПОНЯТТЯ ТА ОЗНАКИ ВОЄННИХ ЗЛОЧИНІВ У МІЖНАРОДНОМУ КРИМІНАЛЬНОМУ ПРАВІ

The article examines the norms of current international criminal law, from the standpoint of the lack of a conceptual definition of the concept of "war crimes", which, in turn, is a gap in international law. Considering war crimes from the current point of view, given the accumulated positive scientific achievements and law enforcement practice, it is reasonable to define them as gross violations of international humanitarian law committed during armed conflicts (international and non-international), entailing individual criminal responsibility for international right. It is clarified that war crimes are a type of crime against the peace and security of mankind, in connection with which they have common features for these crimes: increased degree of public danger; the orientation of such criminal acts on the interests protected by international law; their criminalization and punishment are carried out in accordance with international law. It is proved that war crimes are characterized by special (peculiar only to them) features: it can be committed only during an armed conflict; the object of encroachment is the procedure of armed conflict established by international law and the security interests of persons (individuals) protected by international law; gross nature of the violation; the consequences for the rights and interests protected by international humanitarian law; peculiarities of the subjective side - along with the features inherent in all crimes against peace and security of mankind, it is necessary for the perpetrator to be aware of the fact of armed conflict; the perpetrator of a war crime must be aware of the factual circumstances that indicate the protected status of persons - victims of the crime. Given these special features of war crimes, their detailed definition is proposed: socially dangerous, criminal acts committed during armed conflicts (international or non-international) that encroach on the established by international humanitarian law, the interests and security of defenders, and entail individual criminal liability in accordance with the rules of international criminal law.

Measuring the Protection of Cultural Property Under International Humanitarian Laws: Analysis of Russia-Ukraine Conflict

The debate on the topic of rules regarding the cultural property’s protection under International Humanitarian Law has renewed its significance in modern day armed conflicts. Since the latest technological and other advancements in the field of warfare the complexities regarding application of laws in warzone has also increased. Specifically, protection of cultural property during an armed conflict has posed serious challenges to both International Humanitarian Laws and International Criminal laws. Undoubtedly, United Nations does provide a multilayered model for protecting the property holding cultural value for states, however, the gaps in implementation makes it challenging for the parties to comply fully. This article undertakes an analysis of laws related to cultural property focusing principally on IHL particularly with the reference of current conflict between Ukraine and Russia. Furthermore, it provides certain recommendations that may be adopted to protect property holding cultural importance and value while addressing the present gaps.

International crimes through the lens of global constitutionalism

AbstractScholars of global constitutionalism have recently come to examine international criminal law (ICL) and its associated institutions, in particular the International Criminal Court (the ICC). This article prolongs these efforts by pointing to and remedying two deficits of that project with particular emphasis on the Rome Statute crimes. First, how does one account for the role of the international trial in global constitutionalist terms? Second, can global constitutionalism insightfully explain the content and scope of these crimes – that is, both their substantive definition and the predominant modes of liability developed by the ICC? This article answers both questions affirmatively and offers an account of their nexus. It first shows that the Rome Statute crimes are often perpetrated through a hierarchically organized apparatus of control, and interprets their global constitutional significance via the principle of constituent power. It then makes use of Antony Duff’s relational account of criminal liability to offer an account of the international trial. In the international context, one can conceive of the trial as allowing state or state-like authorities to call each other to account, which renders justice to the core function of enabling and limiting political authority on which global constitutionalism centres.