International Criminal Trials Research Articles

Legacies of Colonial Violence in Contemporary Transitional Justice: Memories of Mau Mau, the ‘Kapenguria Six’ and the ‘Ocampo Six’ in Kenya

ABSTRACT∞ This article assesses the enduring impact of colonial violence in responses to modern conflict by transitional justice mechanisms. It presents an example of how societies continue to be structured by racial and colonial injustice and how this influences contemporary transitional justice. This is done through an analysis of the popular memory of the Mau Mau insurgency from 1952 to 1960 in Kenya, the trial of the six Kenyan nationalists known as the ‘Kapenguria Six’ by the British colonial administration and the trials of six Kenyans alleged to be most responsible for orchestrating the 2007–2008 post-election violence in Kenya, known as the ‘Ocampo Six’ before the International Criminal Court (ICC). In the Kenyan context, the influence of memories of colonial violence enabled the promotion of political agendas and arguably coloured public debate surrounding the two Kenya cases before the ICC. Transitional justice mechanisms such as the ICC do not operate in an ahistorical vacuum and international criminal trials as a form of transitional justice may be contested where there is no genuine accountability, redress or reparations for victims of colonial crimes. However, the juxtaposition of colonial crimes and the ICC prosecutions in Kenya also raises important questions relating to accountability for historical crimes in former colonies, the temporal limitations of transitional justice mechanisms and their unequal application.

Trajectories of spirituality: Producing and assessing cultural evidence at the International Criminal Court

Abstract In this article, we examine the production and assessment of evidence about spirit beliefs in the international criminal trial of Ugandan rebel commander Dominic Ongwen, submitted by the defense to show that their client committed the crimes he is accused of under duress. This duress defense was ultimately rejected by the ICC Judges, based on a binary understanding of ‘believing’ that depicts Ongwen and other LRA commanders as impostors. However, our analysis of how this evidence about Acholi spirituality is entextualized in testimony-taking and recontextualized in the Judgment reveals that this belief-binary is not exclusively the outcome of the Judges’ recontextualization efforts. In fact, the foundations are already established at entextualization stage, in the questioning by the defense. These continuities, we argue, offer a fresh perspective on the notion of text trajectory, redirecting attention to the underlying ‘grammar’ of the legal language game. (International Criminal Court, text trajectory, entextualization, recontextualization, evidence, spirit belief, Dominic Ongwen, Uganda)*

Culture and the Illusion of Self-Evidence: Spiritual Beliefs in the Ongwen Trial

Abstract By definition, criminal trials are set to determine the guilt or innocence of the accused. In this process, judges are tasked with assessing not only evidence that presents itself in quantifiable forms, but also as personal experiences. In the case of Dominic Ongwen, a former child soldier and commander of the Lord’s Resistance Army (lra), the issue of spiritualism played a significant role, particularly in relation to the affirmative defences of mental incapacity and duress. Assessing such culturally charged evidence, inherently interconnected to local beliefs, through the lens of an international criminal law trial raises a number of challenges. In the construction of the legal truth, such immaterial evidence undergoes a process through which only certain elements, which are deemed relevant in light of specific arguments, are ultimately selected, filtered through the legal framework, contested by the parties and ultimately decided upon by the judges. Spiritual beliefs therefore become patterns, and patterns become certainties. Based on an in-depth analysis of 408 trial transcripts, along with main submissions and decisions, this article sheds light into how framing spiritualism according to the criteria laid out in the Rome Statute has played out in the trial of Dominic Ongwen. It maps the way in which cultural concepts related to spirituality have been introduced into the trial, by which parties and for what purpose. It also looks at how the system of spiritual powers guiding the lra and its fighters was assessed by the judges and potentially why.

A Study on the Jurisdiction of the International Criminal Court

The establishment of the International Criminal Court, on the one hand to promote the development of international criminal trial work, on the other hand, also on the serious harm to human crimes to crack down on the world has brought a huge impact, to maintain the peace and security of the international community for the purpose. However, as a new affair, the International Criminal Court also faces a series of development problems that need to be solved urgently. Under this background, this paper starts with the jurisdiction of the International Criminal Court, discusses the emergence of the International Criminal Court, the scope of jurisdiction, the challenges and opportunities it faces in the current development process, and gives corresponding suggestions on its improvement.

Justice in conflict: Principle of complementarity or principle of competition?

The establishment of a permanent international criminal court was a necessity and the fear of it infringing on a state's sovereignty was real and ever present. As a result of this fear the International Criminal Court could not be awarded primary jurisdiction, and a compromise had to be reached in which it would operate under a regime of complementarity. This article focuses on the Simone Gbagbo case, as the first woman to be charged by the Court, with the object of nuancing the principle of complementarity in the various stages of an international criminal trial and the extent to which it portrays the tension of state sovereignty, tracing it from its infant historical or rudimentary practices to the current practice and making the necessary recommendations. All of this will be done by contextualising it all within the Cote d'lvoire situation, particularly as it relates to complementarity. The article makes recommendations that focus on how and why the lCC should avoid seeking to dictate and impose its prosecutorial strategy on the domestic officials so as to avoid a crisis of its legitimacy being questioned, and the state's refusal to cooperate with the Court. lt concludes with the caution that when the practices of the lCC and its Prosecutor make charging decisions for the state and embrace undermining the prosecutorial discretion of the domestic authorities, then the principle of complementarity will have been officially decimated and the principle of complementarity officially birthed.

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.

‘A very sensitive Rwandan woman’: sexual violence, history, and gendered narratives in the trial of Pauline Nyiramasuhuko at the international criminal tribunal for Rwanda, 2001-2011

ABSTRACT In 2011, Pauline Nyiramasuhuko, the former Rwandan Minister of Family and Women’s Development, became the first woman convicted of genocide in an international criminal trial, and the first convicted of rape as a crime against humanity. Nyiramasuhuko’s case complicates portrayals of Rwandan women as peace-loving victims of violence, a representation often used to explain women’s post-genocide socio-political gains. Drawing on archival records from her trial at the International Criminal Tribunal for Rwanda, this article explores how African history and legal-historical perspectives are necessary to understand this landmark trial and judgment, in particular the gendered narratives that permeate the case and its coverage. Situating Nyiramasuhuko’s case within an historical moment when gendered violence was emerging as an object of international concern, and within the Rwandan social, historical, and cultural milieu, it argues that Nyiramasuhuko’s self-presentation, as well as witness testimonies, are suffused with gendered narratives. Nyiramasuhuko rendered herself as a wife and mother, claiming that these roles precluded her participation in sexualised violence. Her detractors, in contrast, emphasised her cruelty and ambition, drawing on historical tropes about powerful women. Historicising the case in local and international perspectives is essential for understanding how gender is mobilised in accounts of genocidal sexual violence.

Stalin’s Creation & Jackson’s Contribution

Interest in the Nuremberg trials is booming once again. Soviet Judgment at Nuremberg—by Francine Hirsch, Vilas Distinguished Achievement Professor of History at the University of Wisconsin-Madison—is about the Soviet role in the International Military Tribunal (IMT) at Nuremberg. The book has acquired new relevance since Russia’s invasion of Ukraine in February 2022 in violation of international law. Strikingly, not only have the Ukrainian government, and some Western politicians and scholars of international law floated the idea of a new Nuremberg Tribunal, Russian Duma members have as well. Writing recently in Time magazine, Hirsch argued that indicting Vladimir Putin and leading Russian politicians for war crimes, crimes against humanity, and the crime of aggression would require the creation of an ad hoc International Criminal Tribunal or Special Tribunal. Such an indictment, however, should not have a political character, Hirsch points out, but such a trial would offer the possibility of creating a “complete historical record.” A “Nuremberg 2.0” organized by the Russian government would be a “dark alternative” in Hirsch’s eyes. She writes in Time magazine: “This would inevitably be a Soviet-style show trial—a kangaroo court that would degrade international law and could taint the meaning of Nuremberg forever.”1 This viewpoint—that the Soviet Union was fixed on political show trials much as the Putin government may be today—is reflected in Hirsch’s book. However, Hirsch also suggests that international criminal trials always have a political character or partisan interest that must be considered ambivalently: in a positive light, because there is a didactic goal in coming to terms with the past through criminal proceedings; and in a negative light, because impartiality is questionable if the crimes of only one warring party are tried.

Comparative analysis of aspects of the defense of the defendants of the Nuremberg and Tokyo Tribunals

The article discusses some aspects of the legal defense of the defendants of the International Military Tribunal for the Trial and Punishment of the Main War Criminals of the European Axis Countries and the International Military Tribunal for the Far East. A comparative analysis of the provisions of the Statutes of international Tribunals concerning the rights of the accused to defense is given. The rights of the defendants are considered in detail, including the right to defend themselves personally, the right to choose a lawyer, and the right to provide evidence. The article is carried out within the framework of the study of the history of international criminal justice and the history of the formation of international criminal law. The analysis of some modern problems in the field of ensuring the rights of defendants to defense in the activities of the International Tribunal for the Former Yugoslavia (ICTY), as well as their origins found in the activities of the ICTY, is carried out. Using the methods of comparative jurisprudence, the analysis of the norms of law established in the statutes of the Tribunals was carried out. The dogmatic method is applied in the interpretation of the norms of law set forth in the statutes. The dogmatic method is applied in the interpretation of the norms of law set forth in the statutes. The author concludes that some modern problems of international criminal justice originate in post-war tribunals. Thus, violations of the rights of the accused by the ICTY had their historical roots in the form of norms laid down in the Statute of the Tokyo Tribunal. A proposal was made on the need to develop basic rules for granting the right of protection to defendants, based on the experience of international criminal trials. It is also concluded that it is necessary to exclude the possibility of pressure from international courts, judges and prosecutors themselves on defenders. For this purpose, it is proposed to provide for the impossibility for judges to arbitrarily ban unwanted lawyers from participating in the process. It is also proposed to introduce a direct ban on the appointment of a lawyer to the defendant against his will and to provide for the possibility of recusal of a lawyer only in the case of a proven crime against the administration of international justice.

Seeking Balance in How the International Criminal Court Communicates Prosecution and Defence Narratives to the Public

Abstract In the aftermath of atrocities, international criminal trials become forums for telling stories about the alleged crimes. These stories are presented by the prosecution and defence, before being distilled into a judicial narrative by the judges. The International Criminal Court (ICC) faces the challenge of communicating this plurality of narratives to the public, who want to know in certain terms what crimes happened, why they happened and who was responsible. The decisive answers to these questions are in the judicial narrative, but this is unavailable until many years into the proceedings. For most of the time, the ICC has to find a coherent way of presenting the conflicting narratives of the prosecution and defence to the outside world. This article argues that neither party can claim to have more accurate narratives than the other, so their accounts should be heard by the public equally. The value of communicating their narratives is not to hold them up as the truth, but to demonstrate how the legal process can accommodate competing versions of events and arrive at the authoritative narrative after hearing both sides and testing their evidence. The public may currently have a distorted impression of this process at the ICC given that the prosecution, as an organ, can amplify its narratives in public using institutional resources not available to the defence. The article recommends providing the defence an equal platform for communication as is offered to the prosecution. While this comes with some risks, such as potentially platforming denialist narratives, these can be mitigated through, for instance, contextualizing the narratives that come from the Court. In any event, the risks are outweighed by the potential benefits, including improving the perception of the Court’s impartiality and legitimacy in communities where the ICC might be lacking it most.

Negative Aesthetic Experiences of Prosecuting the Barely Alive

Abstract Theories of negative aesthetics claim that some aesthetic qualities like disgust, ugliness, and repulsiveness are instrumentally valuable, and can be justified as a necessary means to producing what might be considered an ultimately positive aesthetic experience. In an international criminal trial, the presentation of “ugly” visual and oral evidence may be justified in service of the aims of the trial. But when the “barely alive” are prosecuted, however, a justification for a negative aesthetic experience may not exist. In this paper, I argue that due to their vulnerability and the need to protect their dignity, individuals who have been accused of mass atrocity crimes but who are nearing the end of their lives should generally not be subjected to public trial and punishment. The negative aesthetic experiences generated by displaying someone close to death in that setting cannot be justified by positive aesthetic or moral experiences.

Victims and International Sentencing: An Uncharted Territory?

The sentencing phase plays a crucial role in international criminal trials. However, the role and impact of victim participation during international sentencing have received little attention within international criminal law discourse. This study seeks to understand and explain the rationale behind international sentencing by examining the theories of retributive and restorative justice within the context of the International Criminal Court. In addition, the study also addresses the neglected aspect of victims’ role in sentencing hearings as well as the degree to which victims’ rights and interests are considered at the sentencing phase. Researchers have utilised qualitative interviews in the available scholarship to assess victim participation at the ICC. This article has decided to complement the available scholarship in this area by using a rarely-used and vital data source for evaluating victim participation during sentencing. Namely, case transcripts. In investigating this question, the researcher used the decided case of Prosecutor v Thomas Lubanga case.

Between Fact and Opinion: The Sui Generis Approach to Expert Witness Testimony in International Criminal Trials

Abstract It is a fundamental tenet of the law of evidence, spanning all jurisdictions, that witness testimony should ideally be delivered in open court by the individual who observed the event in question, or by the expert whose technical knowledge is relied upon. A notable exception to this principle has emerged in the field of international criminal justice, where courts and tribunals may allow ‘summarising witnesses’ to present a summation of witness testimony. In the case of Ayyash et al., the Special Tribunal for Lebanon extended the principle, allowing voluminous expert opinion evidence to be presented in factual summation. This article analyses such approaches, utilising doctrinal methods alongside empirical Wigmorean analysis, to assess the probity of these sui generis practices. The results are placed in legal and theoretical perspective, demonstrating that international courts and tribunals are departing from an overarching obligation to integrate international and domestic standards in respect of expert testimony.

Transforming Evidence and Proof in International Criminal Trials

Transforming Evidence and Proof in International Criminal Trials

Towards a Normative Assessment of Probative Value in International Criminal Adjudication

Abstract The trial is an epistemic event. Yet, the manner in which the probative value of legal evidence is calculated remains largely unarticulated. Thus, in the face of an urgent requirement to advance a normative model of evidential reasoning which serves the needs of decision-makers, practitioners, and experts, this article assesses the utility of three dominant approaches, founded upon the exposition of inferences, scenarios, and probabilities. These find expression in Wigmorean, Narrative, and Bayesian network models, and a number of hybrid approaches. Through an analysis and critique of the foregoing models, the article attempts to discern the optimal normative model of evidential reasoning to be applied in international criminal trials, consonant with Twining’s formulation of rational adjudication, and assessed in accordance with a set of rational evaluation criteria drawn from New Evidence scholarship and its historical forbears.

Weaving the threads of international criminal justice: The double dialogicity of law and politics in the ICC al-Mahdi case

In this paper, we examine the international criminal trial of Ahmad al-Faqi al-Mahdi, a Malian Islamist who appeared before the International Criminal Court (ICC) in The Hague, charged with the destruction of Islamic shrines during the 2012 jihadist occupation of Timbuktu. Our objective is to analyze the al-Mahdi case as a dialogical network (the destructions occurred in the context of an asynchronous, translocal, press-mediated exchange between jihadists and the international community) and as an event unfolding at a dialogical site (when the commander responsible for the destructions was referred to the ICC four years later). These two dialogical orders exist largely independent of each other but are at crucial points also partly entangled. We conclude by pointing out the relevance of this ‘doubly dialogical’ approach to the broader field of sociolegal studies of international criminal justice.

App-Generated Evidence: A Promising Tool for International Criminal Justice?

Abstract The present article explores and discusses the increasing use of mobile phone applications (apps) for the purpose of evidence collection in the context of international criminal trials. It sheds light on the numerous initiatives that have surfaced recently and critically addresses their potential, limitations and pitfalls on a normative, factual and epistemological level. We argue that apps could be a useful means, capable of solving some of the recurrent problems in the evidence collection process, provided that the rights of the persons involved are respected, certain safeguards are taken, and that this new development is critically monitored.

COVID-19 and International Crimes Trials in Germany

With the appearance of the COVID-19 virus, the world faces new challenges in almost every area of social life. Social distancing and protection measures provide new challenges in business relations. This also holds true for criminal trials in general, and for international criminal trials, in particular. In Germany, several trials concerning charges of crimes under international law, established by the German Code of Crimes Against International Law (Völkerstrafgesetzbuch), are currently in progress. In particular, the trial against two former Syrian intelligence officers, which is currently taking place before the Higher Regional Court in Koblenz, has received international attention and will possibly be affected by the restrictions imposed.

Between Fact and Opinion: The Sui Generis Approach to Expert Witness Testimony in International Criminal Trials

Between Fact and Opinion: The Sui Generis Approach to Expert Witness Testimony in International Criminal Trials

One confession, multiple chronotopes: The interdiscursive authentication of an apology in an international criminal trial

AbstractThis paper presents an interdiscursive analysis of a public apology made before the International Criminal Court (ICC) by a Malian Islamist accused of the destruction of cultural heritage in Timbuktu. It analyzes (a) how the defendant's apology metapragmatically inserts itself into a multiplicity of chronotopes and (b) how the two defense counsels subsequently reformulate that apology as part of a ‘confessional chronotope’, thereby decoupling it from its immediate trial surroundings. The entextualization of this confessional chronotope, and the modifications of the trial's participation framework it proposes, reveal how ICC trial actors navigate the multiple tensions facing this emergent form of globalized criminal justice.