International Criminal Proceedings Research Articles

The Use of Forensic Evidences in Investigations and Prosecution in International Criminal Proceedings. Case Study of International Criminal Court (ICC)

From 1990s, a rising number of international and hybrid criminal tribunals and since 2002, the International Criminal Court have conducted various investigations on international crimes including crime against humanity, genocide and war crimes in various countries worldwide. These judicial organs have repeatedly relied upon witness’s testimonies, information and assistance from a wide variety of sources including governments, journalists, peacekeepers, human rights researchers and intelligence specialists and few forensic scientists, wherein some of these information and reports were driven by politics. Even though such information were very benefitting “there have also been many mishaps, misunderstandings in terms of differentiating information and evidence and missed opportunities in view of finding out the truth in way that information that could potentially have been of great use to criminal cases was lost or was collected or preserved in a manner that made it unusable at trial.” In today’s era, where there is a remarkable technological development in forensic science, it is time to use forensic methods in investigation of international crimes since a number of scientific and technological advances have improved the ability to document large-scale crimes with efficiency and precision. Yet, only in recent years have international criminal courts and other fact-finding institutions begun to embrace these innovations. There is a need of forensic science in investigating and prosecuting offenders of atrocities than traditional use of testimonies which are not easy to be relied on but still some legal and administrative issues still hinder the successful use of forensic evidences in investigating and prosecuting in international criminal proceedings. The present research focused on the practical use of forensic evidences like; pathology and DNA in exhumation of mass grave for determination of cause, manner and mechanism of death but to locate, excavate and exhume mass graves to produce forensic evidences of atrocities and to returning victims to loved ones and also discussed as tools for justice, humanitarian and documentation.The research also revealed the problems which are not only limited to the legal challenges of insufficiency of forensic evidence admissibility regulations and their maintenance of chain of custody, but also there are administrative issues like, lack of fund to be used during forensic investigation activities including, crime scene examination, collection of evidence and laboratory International Journal of Forensic Sciences 2 Thierry MB and Fred K. The Use of Forensic Evidences in Investigations and Prosecution in International Criminal Proceedings. Case Study of International Criminal Court (ICC). Int J Forens Sci 2024, 9(2): 000380. Copyright© Thierry MB and Fred K. examination of forensic evidence and all these can lead to unnecessary complications and prolongation criminal proceedings in international criminal court hence breach of fair trial principle. Finally, the research proposed reforms by establishing specific regulations related to the admissibility of forensic evidences in international criminal proceedings and chain of custody of forensic evidences as well as harmonizing the standard operating procedure of forensic investigation to regulate scientific investigation activities including, Crime Scene Management, Evidence Collection, Examination of forensic evidences and forensic expert report writing in investigation and prosecution of international criminal proceeding and also detailed mandate to solve administrative issues.

Justice Augmented: Navigating the Ethical and Legal Terrains of AI Integration in International Criminal Proceedings

The intersection of Artificial Intelligence (AI) and International Criminal Law has heralded an era of augmented justice, characterized by enhanced efficiency yet beset by intricate ethical and legal quandaries. The present article seeks to delve into the multifarious impacts of AI integration, dissecting the potential augmentations and the inherent complications within the enigmatic confines of international criminal proceedings. It aims to meticulously juxtapose the promises of technological advancements against the imperatives of ethical justice and legal propriety.The article commences with a nuanced exploration of AI’s role in evidence gathering and analysis, illuminating the potential for expedited and enriched processes. Yet, the core of the discussion gravitates towards the ethical and legal predicaments of AI biases and the consequential implications on the sanctity of fair trials. The article, thus, strives to weave together the threads of accountability, transparency, and the inviolable rights of the accused in a tapestry that reflects the multifaceted challenges posed by AI.Drawing from a rich tableau of international perspectives, including the diverse legal landscapes of Europe, Asia, Africa, and the Americas, an offering of a global vista of prevailing attitudes, policies, and frameworks governing AI in judicial systems is endeavoured. In navigating the future, the article ends with policy proposals and legal frameworks to align AI’s integration with the sacrosanct principles of international human rights and criminal justice.It is ultimately hoped that the article, rooted in rigorous academic discourse yet resonant with broader societal implications, offers an original, refined, and critical perspective on the confluence of AI and international criminal law.

Book Review: The Participation of Victims in International Criminal Proceedings: An Expressivist Justice Model

Book Review: The Participation of Victims in International Criminal Proceedings: An Expressivist Justice Model

The Involvement of Consuls and Consular Officers in Evidence Gathering under Articles 177 § 1b(2), 586 § 1, and Article 177 § 1 in Conjunction with Articles 582 § 1 and 581 § 1 of the Polish Code of Criminal Procedure

Abstract This article explores the involvement of members from both Polish and foreign consular posts in the process of taking evidence in criminal proceedings. Specifically, it examines the participation of Polish consular officers in the interrogation of witnesses and defendants, as outlined in Article 177 § 1b(2) of the Polish Code of Criminal Procedure. Additionally, the article discusses interrogation of these parties by consuls acting on behalf of Polish courts. Governed by both Polish and international law, this process is situated within the realm of international criminal proceedings and consular law. The article also delves into the right to decline to give evidence, a privilege granted to members of consular posts based on their official functions. In this context, we introduce the concept of ‘consular secrecy’, which can be likened to professional secrecy or secrecy associated with the official roles of certain individuals.

Book Review: The Participation of Victims in International Criminal Proceedings: An Expressivist Justice Model

Book Review: The Participation of Victims in International Criminal Proceedings: An Expressivist Justice Model

Legal Aid with regard to Right to Fair Trial in Pakistani and International Law: A Comparative Approach

The key objective of this article is to analyze the concept of legal aid, its significance, challenges, and potential solutions. This article by using the doctrinal research methodology, presents a comparative analysis of legal aid “in the context of international law” and Pakistani law, highlighting “the” similarities and dissimilarities between the two systems. Access to justice and legal representation are fundamental principles in international and national legal frameworks, ensuring that individuals have adequate assistance in navigating the legal system's complexities. This article examines the relevant provisions in international instruments, such as the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights, which underscore the importance of legal aid. Additionally, this article explores the role of international organizations, such as the European Court of Human Rights, in providing legal aid to individuals involved in international criminal proceedings. On the other hand, Pakistani law recognizes the importance of legal aid as well, albeit with its own unique features and challenges. This article examines the constitutional provisions and statutory laws in Pakistan that guarantee the right to legal representation for individuals, particularly those who are economically disadvantaged. By understanding the similarities and dissimilarities between these systems, policymakers, legal practitioners, and scholars can identify potential areas for improvement and enhance access to justice for individuals, irrespective of their economic or social status. This article concludes that international law recognizes legal aid as a universal right and various international treaties make it mandatory for states (i.e., Pakistan) to ensure access to legal aid for those who cannot afford it.

What is Sexual about Sexual Violence?

Abstract Responding to the wider concern with how to understand the connections between sex and violence in the context of conflict-related sexual violence, this article examines how international criminal law constructs what is sexual about sexual violence. The article adopts a narrative expressivist approach to the knowledge generating effects of international criminal proceedings, using a discourse analysis of judgments and trial transcripts to demonstrate how ‘the sexual’ in sexual violence emerges in the judgments of international criminal courts primarily as a social question, in how sexual violence injures the conjugal order of the community to which victims belong. Drawing on the concept of sexual subjectivity, the article nevertheless reveals how some testimonies during the proceedings of international criminal trials go beyond this dominant narrative, offering instead a perspective that captures the specifically sexualized harm inflicted on individuals by sexual violation. The article ultimately exposes how the dominant narrative of sexual violence that emerges through the judgments of international criminal courts tends to overlook the injury to individual sexual subjectivity inflicted by sexual violence and, in doing so, functions to discount victims’ full subjectivity, including in their sexual lives.

The parties as participants in the international criminal proceedings

The article analyzes the historical prerequisites for the development of the concept of the parties as participants in the international criminal process. The analysis of the documents of the Ministry of Internal Affairs, ICTY, ICTR, ICC confirms the thesis that the main parties in the international criminal process are the prosecution and defense. In the model of the international criminal process, the classical approach to the understanding of competition is adopted. There is a structural evolution of the foundations of this approach, the Rome Statute of the ICC defined the rights and obligations of the victims and the third party. The purpose of the study is to consider and resolve problematic aspects of the legal status of the parties in international criminal proceedings. Based on the tasks and goals set, the author has chosen the methodological basis of the study. General scientific methods of cognition are used: analysis, synthesis, analogy, deduction, induction. The author actively applied the formal legal method. The scientific novelty of the study is to reflect the holistic criminal procedural characteristics of the parties to the defense, prosecution, victims, as well as third parties as participants in criminal proceedings in international criminal proceedings. Analyzing the current structural evolution of the model of international criminal procedure, it is possible not only to predict the further expansion of the functionality of the parties, but also to observe the crystallization of the status of a third party. This course of evolution of the international criminal process demonstrates the probable direction of the development of the theory of parties in the science of criminal procedure.

Interactive Digital Platforms, Human Rights Fact Production, and the International Criminal Court

Abstract The International Criminal Court (ICC) initiated criminal proceedings against Ahmad Al Faqi Mahdi in 2016 for the war crime of directing the destruction of religious monuments in Timbuktu, Mali, in the context of a non-international conflict. The monuments included nine mausoleums of Sufi saints that Islamist groups regarded as idolatrous, one mosque, and approximately four thousand ancient manuscripts. The case, which successfully ended in a guilty plea, marks the first time that the ICC charged an individual with a ‘cultural heritage’ crime. The prosecution’s argument during the hearing relied heavily on an interactive digital platform that facilitated the organization, analysis, and presentation of the evidence to the court. SITU, an applied research organization, created the platform in collaboration with the ICC’s Office of the Prosecutor. It combined geospatial information, historic satellite imagery, photographs, open-source videos, and other types of site documentation to help the ICC judges visualize what was no longer physically there. The result was a digital reconstruction featuring structures and their contents lost to explosives, pickaxes, and hammers. The theoretical, methodological, and ethical issues that arose out of the collaboration, the focus of this article, highlights the multiple ways in which such platforms fashion ‘facts’ rather than objectively present them. A close analysis of the design decisions made, visualization techniques employed, and presentation strategies used to support the case against the defendant highlights both the possibilities and limits of such platforms as part of future international criminal proceedings.

The Compensation by the international criminal judiciary

The international community is showing an increasing interest in ensuring that international criminal justice takes into account the interests and rights of victims, and that this concern is not limited to the spectrum of accused only, since the middle of the last century, this interest has spawned the emergence of a new science, known as "victimology", this science has taken a parallel path to traditional criminology, opening a new chapter in the understanding of criminal behavior, as a human phenomenon, it includes a set of complex and multilateral relationships. The interest bore fruit when international conventions began to explicitly provide for ensuring justice for victims, this is what is stated in the fourth principle of the Declaration of Basic Principles of Justice regarding victims of crime and abuse of power, it states: “Victims shall be treated with compassion and respect for their dignity. They shall have the right to access justice mechanisms and to obtain immediate reparation, in accordance with national legislation in relation to the harm they have suffered”. The pursuit of justice does not stop at convicting the accused of international crimes, but also extends to caring for people whose rights have been violated as a result, this is what the International Criminal Court adopted, when its Statute affirmed that the interests of international criminal justice and the interests of victims go hand in hand, the preamble to the Rome Statute states that ensuring justice for victims of humanitarian atrocities is a right that cannot be overlooked. Especially since millions of children and women have fallen during the current century as victims of unimaginable horrors, which have strongly shaken the conscience of humanity. Thus, the International Criminal Court has paid more attention to the rights of victims than the temporary international criminal courts. The Statute of the International Criminal Court committed to balancing the rights of victims and the rights of the accused in international criminal proceedings, It included an important issue at the level of international trials, which is the right of victims and to obtain reparation for the harm they suffered (compensation) as a result of the international crimes committed against them

Bringing to Justice in the Criminal Procedure: Theoretical Aspects

Bringing to trial as one of the key objectives of the Russian criminal justice system is characterised by sufficient dynamism of development. The procedure of criminal proceedings has been subjected to repeated changes and adjustments. Nevertheless, the essence of bringing to trial remained unchanged across the periods, namely to initiate legal proceedings in the case of the accused person. This interpretation was formed during the genesis of the institution of trial and settlement doctrine. Despite the fact that the modern system of criminal justice is at a stage of active improvement, trials remains one of the unresolved issues. The article provides a short historical analysis of the formation of trial institutions in Russia, which, taking into account theoretical developments, makes it possible to clarify the essence of trial and consider the directions of development at the present stage. Additionally, the place of the institution of trial in the system of the current model of international criminal proceedings is revealed.

Presumption of innocence in international criminal proceedings: international and European practice

The article examines the principle of international criminal justice - the presumption of innocence of the defendant. Its content, limits are clarified, the practice of the European Court of Human Rights is analyzed, as well as the practice of international tribunals on the presumption of innocence of the defendant as part of his right to a fair trial.It is established that presumptions of a legal nature on matters of fact and law are admissible in international criminal proceedings only if the defendant is given the opportunity to refute them and prove his innocence.The presumption of innocence is enshrined as a principle and right of the defendant in modern international criminal procedure law, primarily in the Statutes of international courts and tribunals. An analysis of the relevant provisions of these statutes shows that the presumption of innocence means at least that: 1) the burden of proof lies on the prosecution; 2) evidence of guilt must meet a certain standard; 3) in some cases, the presumption may include additional rights, such as the right to bail, as well as additional conditions, such as the condition of a guilty plea only by a lawful court or following a trial in which all rights of defense have been secured, etc. .; 4) the defendant has the right to doubt in his favor; 5) the right of the defendant to remain silent; 6) the right of the defendant to a certain standard of conviction or acquittal; 7) theright of the defendant to compensation in case of acquittal. The formulation of the presumption of innocencein the Covenant and the Convention allows the establishment of the innocence of the defendant by different procedures depending on “what is at stake”, ie depending on the legal consequences arising from the establishment of guilt. If the defendant can be released from criminal liability and punishment, the procedure for rebutting the presumption of his innocence may be different, and the defendant, of course, must be provided with all means of protection against prosecution.

Civil-Resistance Videography as Human Rights Practice: The Non-Survivor Testimony and the Striving for Criminal Jurisdiction in Syria and Beyond

Abstract This paper brings together the legal discourse on user-generated evidence and a media-cultural study focus to explore videography in conflict contexts as human rights practice. Through examples of civilians and activists who have recorded, documented, and shared atrocities and human rights violations during the Syrian conflict with the help of mobile and social media, the conceptional challenges arising from this human rights practice are explored to further the understanding of witnessing and testimony in the presence of mobile and social media. While Syrians engage in the life-threatening endeavour of recording atrocities and human rights violations to bring justice to perpetrators and victims alike, their video clips contain often only little probative value in juridical terms. Still, current human rights initiatives exist that aim to introduce such user-generated evidence into international criminal proceedings with the support of witnessing apps. To understand the material-semiotic practices that underlie such initiatives, civil-resistance videography is introduced as connected to a broader debate on eye-witnessing, testifying, and providing legal evidence of atrocities and human rights violations that links back to the Eichmann trial and the advent of the survivor witness in criminal proceedings. Applying an analytical approach that combines the feminist understanding of diffraction, interference, figuration, and ethnography, the survivor witness is read as a testimonial figure that interferes with the emerging figure of the non-survivor witness in the context of civil-resistance videography. This interference brings forward the figuration of the non-survivor testimony that requires a conceptional rethinking in the legal and socio-political discourse on user-generated evidence.

The Potential and the Challenges of Digital Evidence in International Criminal Proceedings

Abstract Technological achievements such as mobile phones, computers and the World Wide Web have become an integral part of our lives, and societies and are indispensable to many. These new technologies, and information derived from them, have a great potential to support the fact-finding process in the fields of international criminal law and human rights. Therefore, digital information such as satellite imagery, communication data, and user generated content, for example, videos and photography are becoming essential tools for international criminal investigation. This article examines the characteristics of digital and technology derived evidence and the implications these characteristics have on their use in international criminal procedure. It will illustrate the value and the challenges regarding the inclusion of digital evi dence in international criminal procedure.

The Activity of Lawyers in the International Criminal Court: Theoretical and Practical Aspects

In the entire history of mankind, a large number of acts of violence and aggression have been committed. Over the past 50 years alone, there have been more than 400 interstate and intrastate conflicts that have claimed the lives of millions of people. Increasingly, there has been an urgent need to protect the violated rights of individuals. The idea of creating a single international body for the protection of human rights has been discussed more than once. For the first time, the idea of creating an international judicial body was expressed in 1948 by the UN General Assembly after the Nuremberg and Tokyo trials at the end of World War II, which issue has been discussed at the United Nations ever since. However, efforts to create such a mechanism have not been successful, despite the need for a permanent criminal court to prosecute and punish those who commit the most serious crimes. In 1998, this idea was realized. The International Criminal Court (ICC) has sought ways to establish a world order with a fair resolution of conflicts. It has long been recognized, the verdict of the Nuremberg Tribunal noted, that international law imposes duties and obligations on specific individuals as well as on the state. [] Crimes against international law are committed by people, not by abstract categories, and only by punishing individuals who commit such crimes can the provisions of international law be respected. To date, the ICC is successfully coping with the task of punishing those persons or groups of persons who have committed the international crimes listed in the Rome Statute. It would seem that the balance between good and evil has been found. The crime has been committed and the criminal punished. But it is important to note that the procedural issues have not been resolved as well as that of punishing criminals. An urgent matter today is the status of defenders of the accused in international criminal proceedings. This question requires not only a doctrinal, but also a practical understanding.

Towards a New Normal: Digitization of International Criminal Law in the Age of Coronavirus

Traditionally, the legal field has lagged behind others in its innovative uses of technology to serve the interests of justice. In the wake of the coronavirus pandemic, the physical distancing measures adopted to curtail the spread of coronavirus presented challenged conventional resources and practices used in international courts and tribunals. In response, the pandemic forced international courts and tribunals to follow suit, and determine the role that digital resources could play in the realms of court proceedings and evidence collection.This Article observes the adaptations international courts and tribunals, including the ICC, IRMCT, STL, and the ECCC, have adopted since March 2020 to continue their mandate during the pandemic, as well as their increased reliance upon digital tools that emerged prior to the pandemic, with a focus on virtual proceedings and digital evidence. The Article further considers the potential longevity of this increased use of digital resources in the field of international criminal law, and how the development of these tools can serve the interests of transitional justice by offering cost-saving solutions to courts, strengthening investigations and prosecutions, and increasing access to international criminal proceedings.

The Victims’ Court? An Analysis of the Participation of Victims of Sexual Violence in International Criminal Proceedings

The inclusion of a victim participation scheme within the framework of the ICC is revolutionary under the domain of International Criminal Law. The scheme grants unprecedented rights for victims to participate in proceedings outside of witness capacity, as provided for at the ad hoc tribunals. This article aims to critically evaluate the ICC’s victim participation scheme for victims of sexual violence. It will do so by investigating the participation scheme to establish whether it embodies inherent limits, and, if so, to assess the impact of these limitations on victims of sexual violence.
 While the inclusion of a participation scheme for victims is commendable, this paper finds that there is still a long way to go before victims of sexual violence have access to a form of participation that is meaningful, in that it encompasses the participation envisaged in the provisions of the Rome Statute and considers victims’ needs and expectations. This article argues that several institutional and procedural changes are required before victims of sexual violence are adequately served by the participation scheme. Lessons learnt from practice include the need for a harmonised participation procedure, providing victims of sexual violence with an influence on the charges brought against an accused, assigning collective legal representation based on crimes suffered, and encouraging resource allocation into investigating sexual crimes and non-judicial programmes that will benefit victims of sexual violence that are unable to access participatory and reparatory rights.

The Expertise Function of Amicus Curiae in International Criminal Justice

INTRODUCTION. While abroad over the past decades both comprehensive research and publications touching on individual aspects of amicus curiae in international law have been edited, it garnered only very little scholarly attention in Russian scientific literature. The frequency of its use and the nature of its impact on international judicial and quasi-judicial proceedings vary among branches of international law. This article considers one of the functions that an amicus curiae may perform in international criminal proceedings – the function of expertise.MATERIALS AND METHODS. The article is based on the existing volume of scientific knowledge in different branches of international law, such as law of international treaties, international criminal law, law of international organizations, human rights law, international economic law, history of international law and others. The research is based on the conclusions and inferences achieved mainly in the foreign doctrine of international law including publications of this year, due to the low degree of development of the topic in Russian literature. The empirical basis of the research is formed by international legal acts, internal acts of international criminal tribunals, materials of proceedings relating to interstate disputes, international advisory proceedings, practice of international criminal courts. The methodology used is a combination of general scientific methods of cognition (methods of analysis and synthesis, induction and deduction, critical and dialectical) and private scientific methods typical for legal sciences (historical, comparative).RESEARCH RESULTS. International criminal courts actively rely on the amicus curiae mechanism to obtain information, both legal and factual, on issues under consideration in criminal proceedings. The admission of amicus curiae to international criminal proceedings is entirely at the discretion of the judiciary. In practice, amicus curiae applications are submitted by subjects of international law, international non-governmental organizations, natural and legal persons and professional associations.DISCUSSION AND CONCLUSIONS. Too frequent use of amicus curiae mechanism seems to be difficult to reconcile with the iura novit curia maxima. Its current practice provides fertile ground for all kinds of abuse and needs to be reviewed. In particular, the experience of the UN International Court of Justice, the International Tribunal for the Law of the Sea and the UN Commission on International Trade Law could be instructive in this regard.

THE GENESIS AND CRITICS OF THE PROSECUTORS AMICUS CURIAE IN INTERNATIONAL LAW

The article traces in detail the origins of the prosecutor amicus curiae in the practice of the International Criminal Tribunal for the Former Yugoslavia. This mechanism will subsequently be endorsed by all the ad hoc international criminal tribunals. It is noted that their emergence is the result of an unsuccessful experience in prosecuting offences against the administration of justice by the Tribunal under the previous legal framework. It is also stressed that, despite its effectiveness, the prosecutor amicus curiae mechanism cannot constitute the central component of the policy of prosecuting such acts and that, at this stage, it may even be considered an obstacle to its formation, given the occasional nature of the prosecutor amicus curiaes intervention in the international criminal proceedings and lack of continuity. As an alternative, it is proposed to establish a special independent organ - the Prosecutor for the offences against the administration of justice - in the international criminal tribunals, including the International Criminal Court.

Principles of cooperation between Ukraine and the International criminal court

Ukraine’s recognition of the jurisdiction of the International Criminal Court will further require effective cooperation with this international judicial institution. Unfortunately, the current criminal procedure legislation is marked by significant shortcomings that hinder such cooperation. However, the Verkhovna Rada of Ukraine adopted the draft. The Law of Ukraine «On Amendments to Certain Legislative Acts of Ukraine Concerning Cooperation with the International Criminal Court» may radically change the situation. The establishment of the International Criminal Court has been a great achievement for the international community in the fight against the most serious crimes that threaten general peace, security and international cooperation. In exercising jurisdiction under the Rome Statute of 1998, the International Criminal Court may prosecute those responsible for genocide, crimes against humanity, war crimes and the crime of aggression, but certain procedural actions, such as arrest, whereabouts or items, searches, he can not carry out independently. In investigating, prosecuting and enforcing judgments, the International Criminal Court cooperates with States in investigating and gathering evidence, making arrests, transferring defendants and enforcing judgments. In this regard, it can be emphasized that the functioning and activity of such an international judicial body directly depends on the effective cooperation of states with it. In turn, the cooperation of states with the International Criminal Court in the field of international criminal proceedings should be based on legal norms and principles that will ensure the latter’s realization of its goals and objectives. The international community has long sought to establish a permanent international criminal court, but this issue has always been postponed for a long time due to differences. Key words: international judicial institution, International criminal court, grounds for international cooperation, transfer of a person, international agreement.