International Criminal Law Research Articles

Responsibility for crimes against humanity in international and national criminal legislation

Purpose. The purpose of the article is to analyze the problems of responsibility for crimes against humanity in international and national criminal legislation, proposals for the implementation of international norms in the national criminal legislation, as well as determination of positive and negative changes as a result of such implementation innovations. Methodology. The methodology includes a complex analysis and generalization of available scientific and theoretical, legislative material and formulation of relevant conclusions. Such methods of scientific knowledge during the research were used: comparative legal, logical-grammatical, system-structural, modeling. Results: It was recognized, that in the modern criminal legislation of Ukraine lackes the only criminal-legal norm that would provided responsibility for crimes against humanity. Mostly, crimes in this area are fixed in different parts of the Criminal Code of Ukraine, which does not fully reflect everything social danger of these acts. In this connection, there was a need for a legislative enshrinement crimes against humanity in chapter XX of the Special part of the Criminal Code of Ukraine, with the aim of effectively countering the commission of criminal offenses against peace, human and international security law and order, as well as fair punishment for criminal acts of the Russian military on the territory of Ukraine at the national level legislation. Scientific novelty. According to the results of the study, it was recognized such progressive provisions regarding actions related to encroachments on peace and security humanity and the international legal order, which can be taken into account in the future for legislative initiatives on criminal liability for criminal offenses in this area. Practical significance. The research results can be used in law-making activities by improvement of the national criminal legislation on criminal offenses against peace, security of humanity and the international legal order, as well as in the educational process during the teaching and studying of the academic disciplines «International criminal law», «Actual problems of criminal law and process» and «Criminal law of Ukraine. A Special part».

Criminal liability for ecocide under international law

Purpose. The purpose of the article is to determine the legal nature of ecocide in the context of international law as «international crime» or «crime of international nature». Methodology includes the general scientific dialectical method, as well as other methods of scientific knowledge: functional, system-structural, and comparative methods. Results: It was concluded that there is no regulation of ecocide in international law as an international crime outside the context of an armed conflict, which excludes international legal responsibility for its commission, or a crime of international nature (transnational crime), which is due to the limited establishment of criminal responsibility for ecocide in the national legislation of many states. It has been established that ecocide can potentially be recognized as an international crime stricto sensu if the adoption of relevant amendments to the Statute of the International Criminal Court will be, and as a crime of an international nature if the adoption of a multilateral international treaty as universal legal standard will be. It was determined that a separate political and legal instrument of influence on national legislation is the establishment of standards of responsibility for environmental criminal offenses, including ecocide, within the framework of membership in international organizations (Council of Europe) and economic and political unions (EU). It was established that until now the development of the concept of ecocide in international law as an act characterized by signs of "seriousness", "long-term" and "wide-spread" damage to the natural environment is at the stage of development. Originality. The legal nature of ecocide in the context of its belonging to an international crime / a crime of an international character as concepts of international criminal law is studied. Practical significance. The results of the study can be used in educational, law-making and law-enforcement activities in the course of developing the state criminal law policy.

A case study on War Poses

Abstract This article delves into Sweden's evolving legal response to international crimes, notably focusing on the 2021 War Poses case before the Swedish Supreme Court. The case involves an Iraqi asylum-seeker charged with violating the personal dignity of several persons, presumed to be deceased, during a 2015 non-international armed conflict in Kirkuk, Iraq. A key contention is whether deceased individuals can be considered “protected persons” under Swedish war crimes legislation. The article examines the Swedish Supreme Court's decision, which deems deceased individuals as protected persons, drawing on the Rome Statute's Elements of Crimes. It examines the complexities surrounding the application of international humanitarian law (IHL) to cases involving the deceased and explores potential misinterpretations arising from the Court's brief and ambiguous reasoning. As Sweden grapples with the complexities of international criminal law, the article advocates for clarity and comprehensive discussion to ensure that justice is served while upholding accurate and harmonized definitions of fundamental concepts of IHL.

Conference Report: Current International and Transnational Criminal Law in Africa – Practice, Challenges and Prospects

The African-German Research Network for Transnational Criminal Justice conducted its an-nual conference on 30th and 31st October and on 4th December 2020 online. The theme of the conference was “Current International and Transnational Criminal Law in Africa: Prac-tice, Challenges and Prospects”. The report gives a concise overview of the excellent paper abstracts and presentations of the conference, ranging from concepts of restorative justice and the implementation of international and national criminal offences to legal policy responses and prosecutions in Malawi, Nigeria, South Africa and Uganda and by the ICC. Several con-ference papers have been published in peer-reviewed law journals and a number of the pro-posals discussed have been partially implemented by national legislators

Tinjauan Hukum Pidana Internasional Atas Tindakan Eksploitasi Sumber Daya Perikanan Di Wilayah Laut ZEE Indonesia Oleh Kapal Asing

The Exclusive Economic Zone (EEZ) is a new legal system regulated in the 1982 maritime law agreement between countries. Therefore, the abundant marine fisheries resources in Indonesia's EEZ allow for actions that are detrimental to being an archipelagic country due to violations committed by foreign countries that violate state sovereignty. Therefore, the Indonesian government has established legal rules regarding the use of fisheries resources and maritime boundaries in Law Number 17 of 1985 from the ratification of UNCLOS 82, and in its implementation these legal rules must not deviate from the Indonesian Constitution. Apart from vigilance, of course this is a a warning to the country in maintaining its sovereignty so that it is protected from intervention by foreign countries who secretly steal data on the country's territory and look for gaps in defense weaknesses through maritime boundaries. Therefore, all regulations regarding the territorial boundaries of the Exclusive Economic Zone (EEZ) have been summarized in UNCLOS 82. This article aims to explore aspects related to the protection of water resources in the EEZ and the provisions of international and transnational criminal law that anticipate the protection of water resources in the EEZ. This research utilizes normative methods that are descriptive in nature and tend to utilize data analysis.

Criminalizing Human Rights

Abstract The priorities reflected in the overarching system that includes the regimes dealing with international human rights law, international humanitarian law, and international criminal law are currently undergoing a gradual but highly significant transformation. The cause is a growing preoccupation with ‘atrocity crimes’ in each of the three fields, along with the imposition of criminal sanctions in response to an ever increasing range of violations, the recasting of other violations as crimes (ecocide), and the urge to describe a great many situations as involving genocide. These developments have diminished the attention given to non-criminal violations and to techniques other than prosecution, and facilitated continuing neglect of the structural dimensions underpinning violations. In the foreign policies of key western states, sanctions against individuals now attract more attention than other human rights responses. The risk is that these trends will entrench an atrocity-centred normative hierarchy, empower judges and criminal lawyers at the expense of social movements, shine a spotlight on individual rather than collective responsibility, reinforce problematic North-South dynamics, and distort resource allocations at the international level.

The Dynamics of Terrorism and International Criminal Law

This paper seeks to analyse and showcase the contemporary applicable prevailing developments vis-a-vis the concept of terrorism under international criminal law. It showcases the jurisprudence for the criminalization of terrorism under international criminal law. This paper further seeks to critique the advancement of the idea of terrorism in international law and highlights some contemporary developments with emphasis on aspects relevant to international criminal law.This paper equally seeks to analyze the fundamental distinction between terrorism as a treaty crime and terrorism as an international crime.One intriguing problem is a generally accepted definition and structuralexponential concern and analysis of terrorism under universal jurisprudence. Despite the problems of definition and distinction, the contemporary generally accepted trend is the criminalisation of international terrorism in any form or structure to guarantee international peace and security.

Constructing a Sensory Alternative to the Ongwen Judgment

Abstract Much ink has been spilt criticising the icc’s Ongwen trial judgment for its failure to grasp the cultural context in which the accused Ongwen and the Acholi community were embedded. Some scholars blame this on the poor quality of translation services, others attribute it to the ‘binarism’ of judgments. We offer another explanation for the Ongwen judgment’s deficiencies: its purely textual format. The judgment shows that the continued preference for textual judgments in international criminal law sterilises victims’ experiences, decontextualises evidence, and muffles objectivity. This ties into the historical preference for text over senses, a colonially engineered decision aimed at suppressing non-Western epistemologies. In this paper, we call for the international criminal law judgment to embrace ‘the opportunities of the wider sensory field’. Drawing on the pervasive sensory dimensions of international criminal law, we argue that a sensory reimagination of judgments would better serve international criminal law’s affective potential by empowering survivors and achieving a more reparative and reconstructive justice.

Hidden figures: how legal experts influence the design of international institutions.

Whose preferences influence the design of international institutions? Scholarship on the legalization of international politics and creation of international legal institutions largely adopts a state-centric perspective. Existing accounts, however, fail to recognize how states often delegate authority over institutional design tasks to independent legal experts whose preferences may diverge from those of states. We develop a principal-agent (PA) framework for theorizing relations between states (collective principals) and legal actors (agents) in the design process, and for explaining how legal actors influence the design of international institutions. The legal dimensions of the PA relationship increase the likelihood of preference divergence between the collective principal and the agent, but also create conditions that enable the agent to opportunistically advance its own design preferences. We argue that the more information on states' preferences the agent has, the more effectively it can exploit its legal expertise to strategically select and justify design choices that maximize its own preferences and the likelihood of states' acceptance. Our analysis of two cases of delegated institutional design concerning international criminal law at the United Nations and the African Union supports our theoretical expectations. Extensive archival and interview data elucidate how agents' variable information on states' preferences affects their ability to effectively advance their design preferences. Our theory reveals how independent legal experts with delegated authority over design tasks influence institutional design processes and outcomes, which has practical and normative implications for the legalization of international politics.

Universal jurisdiction and the obligation to extradite or prosecute

The article is devoted to the question of the relationship between the aut dedere aut judicare principle and concepts of universal jurisdiction in international criminal law. Cooperation between states in the fight against international crimes involves, among other things, solving the issue of the exercise of national criminal jurisdiction, including universal jurisdiction, as well as the implementation of the aut dedere aut judicare principle. Providing universal jurisdiction is an important element of prosecuting alleged perpetrators of crimes of international concern, especially when the alleged perpetrator is not prosecuted in the territory where the crime was committed. It was determined that each state defines the scope of its criminal jurisdiction (including universal jurisdiction) and each state is responsible for determining the scope of its criminal law. States are required to conform to their international obligations, including refraining from interfering in the internal affairs of other states and implementing obligations on prosecution or extradition. A conclusion was made about the importance of distinguishing the concepts of universal jurisdiction and aut dedere aut judicare. Universal jurisdiction applies when there is no other connection to the state (territoriality, nationality, the protective principle or any other basis). Aut dedere aut judicare obligation entails the transfer of the case to the competent authorities for prosecution or extradition, not the establishment of jurisdiction. In order to fulfill the obligation aut dedere aut judicare, the state must already have passed laws criminalizing certain acts. An obligation aut dedere aut judicare does not only refer to serious crimes committed by a foreigner against a foreigner abroad. An aut dedere aut judicare obligation is not limited to situations in which a universal jurisdiction is required to be applied for the prosecution or extradition.

Definition of the crime against the security of humanity (genocide) in international criminal law and the obligation to punish it

The relevance of this research topic in today's conditions is of great interest and lies in the fact that genocide is one of the most serious crimes against humanity, and although responsibility for it is officially established, this does not prevent new manifestations of genocide.
 In this scientific article, the author made another attempt to consider the theoretical basis of the emergence of the term "genocide" in international law. It is noted that despite the rather long existence of genocide in the world, it was only after the Second World War that genocide was qualified as the most serious crime against humanity. It was analyzed that despite the fact that the UN Convention on the Prevention and Punishment of the Crime of Genocide was signed, its adopted norms could not prevent a new manifestation of this crime. The article gives known historical examples of terrible genocides. It was determined that responsibility for genocide is stipulated by the UN Convention of 1948 "On the Prevention of the Crime of Genocide and its Punishment", which formulates the composition of the crime and its forms. It was also found that the Convention does not directly refer to the responsibility of states, but only indirectly.
 The concept of international criminal respon­sibility of the state for genocide is revealed and conclusions are drawn that this concept is controversial.
 The judicial practice of the states regarding prosecution for the crime of genocide in accordance with the UN Convention on the Prevention and Punishment of the Crime of Genocide has been analyzed. Conclusions were made about the application by national courts of the Genocide Convention itself, or the national legislation, which contained the definition of the crime of genocide in accordance with the Convention.
 The article also reveals current events, namely that the crimes committed by the Russians during the full-scale aggression fall under the articles of the 1948 Genocide Convention, and Ukraine is working to bring Russian criminals to justice for the genocide of the Ukrainian people.
 It was concluded that the crimes of the Russians in Ukraine are genocide by all indications and that Russia should bear responsibility for the genocide of the Ukrainian people.

Convention on International Cooperation in the Investigation and Prosecution of the Crime of Genocide, Crimes against Humanity, War Crimes, and other International Crimes: the focus of the provisions and challenges

The article is devoted to the analysis of the provisions of the 2023 Convention on International Cooperation in the Investigation and Prosecution of the Crime of Genocide, Crimes against Humanity, War Crimes, and other International Crimes. The analysis of the provisions of the Convention is important for assessing the capacity of existing mechanisms to respond to international crimes committed in Ukraine. Therefore, the purpose of the article was to assess the provisions of the Convention, its correlation with the legislation of Ukraine, in the aspect of prosecution those guilty of international crimes against Ukraine and the Ukrainian people.
 The article examines in detail: the scope and purpose of the Convention; obligations of criminalization; obligation to establish jurisdiction; principle «aut dedere aut judicare»; areas of mutual legal assistance; provisions regarding victims.
 It is indicated that the Convention is an important step in the development of prosecution mechanisms for war crimes. Its unique feature is the presence of norms of international criminal law, despite the name, which concerns only international cooperation, which is not at all characteristic of other conventions on mutual legal assistance. Unfortunately, however, some war crimes and crime of aggression will require additional notification of the application of the Convention, which again reduces its potential positive impact on prosecutions for international crimes.
 The analysis of the provisions of the Convention allows us to reasonably assume that in the event of its ratification: there will be a need to improve the norms of the Criminal Code of Ukraine regarding the effect of the criminal law on persons and universal jurisdiction; will require updating the norms of the Criminal Procedure Code of Ukraine regarding the provision of international legal assistance; additions to the provisions of the Criminal Procedure Code of Ukraine regarding extradition in aspects of the «aut dedere aut judicare» principle will be required; will require verification on the issue of compliance of the Criminal Procedure Code of Ukraine with the Convention regarding the participation of victims in criminal proceedings. In addition, the issue of regulation of restitution, compensation and rehabilitation and other forms of compensation for victims of international crimes will need to be resolved.

Florian Jeßberger and Julia Geneuss (eds), Why Punish Perpetrators of Mass Atrocities? Purposes of Punishment in International Criminal Law

Florian Jeßberger and Julia Geneuss (eds), <i>Why Punish Perpetrators of Mass Atrocities? Purposes of Punishment in International Criminal Law</i>

International Criminal Law: Non-Applicability of Statutory Limitations in Extradition Proceedings Concerning Crimes Against Humanity: The Reverberi Case (Re-loaded)

International Criminal Law: Non-Applicability of Statutory Limitations in Extradition Proceedings Concerning Crimes Against Humanity: The Reverberi Case (Re-loaded)

From War Crimes to Crimes against Humanity and Genocide: Turkish Responsibility after World War I

On 24 May 1915, the Triple Entente powers of Britain, France, and Russia issued a joint declaration that qualified the massacres, imprisonments and violence inflicted on the peaceful Armenian population as “crimes against humanity and civilization.” The concept of crimes against humanity was further developed and explained by the Commission on the Responsibility of the Authors of the War and on Enforcement of Penalties (hereinafter: Commission), which was formed during the Paris Peace Conference to investigate violations of the laws and customs of war and prosecute war criminals. This article traces the evolution of discussions held within the Commission regarding the atrocities committed by the Ottoman Turkish government against its Armenian population, which technically fell outside the jurisdiction of the crimes specified in these talks, as the atrocities were committed not against the population of a belligerent state but, rather, against their own nationals. These discussions played a major part in the development of international criminal law; particularly of the concept of crimes against humanity. The Armenian Memorandum and the list of perpetrators of the Armenian atrocities were also presented to the Commission, which (together with other data and information collected) identified the crimes committed against the Armenian population by the Ottoman authorities, thus defining the concept of crimes against humanity and the acts that fell within its scope. Although post-World War I efforts for justice are generally assessed as a failed effort, crimes against humanity first materialized as a term in international law during this period and its development was based on the Armenian atrocities, which provided a critical basis for the International Military Tribunal's later convictions and contributed to the concept's evolution into its present-day significance.

Toward a Sociology of International Law: John Hagan and Beyond

Socio-legal scholars these days devote themselves routinely to the study of international law. It was not always thus. In the late twentieth century, no more than a handful of law-and-society scholars asked themselves how international law worked. Even fewer ventured into the field. John Hagan was one of those who did and the first sociologist to study empirically—and rigorously—what we now call international criminal law. In this article, I use Hagan’s oeuvre to reflect on the intellectual history of international legal scholarship in the twenty-first century. I argue that Hagan brought three things to the study of international law: criminology, methodology, and ideology. I trace each of these contributions in detail, assess their intellectual import, and relate them to alternative ways of seeing international law. The story I tell is of a pioneering scholar who charted an empirical path toward the sociology of international law, but whose moral compass—acquired during his socialization in the Vietnam era—also occasionally blinded him to the dark sides of virtue.

Legality of Anticipatory Self-Defense in International Criminal Law: Special Case Studies in Focus

On February 24, 2022, a significant international event transpired as Russian military forces crossed into Ukraine, initiating a full-scale conflict under the assertion of Anticipatory Self-defense. This development has sparked renewed discussions and inquiries into the legal and practical dimensions of Anticipatory Self-defense as a pretext for military actions. Notably, Anticipatory Self-defense has been invoked in the past, most notably by the Bush administration during the Iraq War and currently by the Israeli government in various contexts. In a similar vein, President Vladimir Putin employed the doctrine of Anticipatory Self-defense to legitimize and provide a legal basis for the Russian military's actions in Ukraine. This research paper seeks to undertake a thorough and systematic exploration of the essentials and legal aspects of Anticipatory Self-defense as a concept, examining its application and relevance in contemporary international relations. The primary objective is to shed light on the justifiability and legality of utilizing Anticipatory Self-defense as a rationale for military intervention, with a specific focus on the recent events in Ukraine. In addition to an overarching discussion on the principles and nuances of Anticipatory Self-defense, this paper will delve into select case studies from recent history, drawing upon experiences and actions taken by various countries, including the United States and Israel. Through a comprehensive analysis that combines legal, historical, and political perspectives, this research endeavor aims to provide a nuanced understanding of Anticipatory Self-defense, its utilization by different nations, and whether it can serve as a valid legal basis for military actions.Top of FormBottom of Form

A Discussion on the Arrest Warrant on Russian Personals: From the Jurisdiction and Alleged Crime Perspective

This article sorts out the current situation of International Criminal Court investigation of situation in Ukraine, and based on latest developments, it discusses and studies the international criminal law issues involved in arrest warrant issued by Pre-Trial Chamber, mainly including court jurisdiction and its scope, connotation of alleged crime and its application in this case. This study mainly uses the method of literature research and also cites the conference rebroadcast video material on the official account. After the research, the paper summarizes the information about the status quo and makes comments on the decision of the current situation.

Преступление агрессии: соотношение норм международного и национального уголовного права

The article analyzes the international legal norms in force for the Russian Federation prohibiting aggression, and also compares them with the current norms of the Russian criminal legislation. At the same time, the ele-ment-by-element analysis of the corresponding criminal encroachment, traditional for criminal law science, is extrapolated to the international legal matter, which makes it possible to consider the composition of the of-fense not only through the prism of national, but also international law. In addition to the theoretical aspect, the work also presents the practice of the first international tribunal that considered the crime of aggression – the Nuremberg One, whose verdict is also important for understanding and qualifying the crime of aggression. Also, the authors, comparing the provisions of international and national criminal law regarding the criminaliza-tion of aggression, come to the conclusion that in general they coincide, although there are some differences in details.

Norms of international law regarding the prevention of crimes of genocide committed by the Russian Federation in the war against Ukraine

The article examines the norms of international law regarding the prevention of crimes of genocide committed by the Russian Federation in the war against Ukraine. The essence and specifics of ensuring the implementation of current provisions and norms of international criminal law regarding criminal prosecution for the commission of crimes of genocide against Russia as an aggressor state, a sponsor of terrorism, its top political and military leadership and the military, who directly commit these crimes in the beginning of February 24, 2022, were considered. full-scale war against Ukraine. It is established that the crimes of genocide are crimes against the security of humanity committed with the intent to destroy, in whole or in part, any national, ethnic, racial or religious group as such by: a) killing members of such a group; b) causing serious bodily injury or mental disorder to members of such a group; c) deliberate creation of living conditions for such a group, designed to bring it to its complete or partial physical destruction; d) implementation of measures aimed at preventing childbirth within such a group; e) forcible transfer of children of this group to another group. The scientific developments and provisions of the current legal norms of the International Convention on the Prevention of the Crime of Genocide and its Punishment, the Rome Statute of the International Criminal Court, as well as the criminal law of Ukraine were studied with the aim of the need for the immediate ratification by the Parliament of Ukraine of the legal norms of the International Criminal Court and their implementation into the criminal legislation of Ukraine and Law of Ukraine “On the Judiciary and the Status of Judges” in English”.&#x0D; The author formulated reasonable proposals for improving the criminal legislation of Ukraine in accordance with the norms of international criminal law, as well as the criminal prosecution and punishment of the highest political and military leadership and the military of the Russian Federation, who directly commit crimes of genocide in the war against Ukraine.