International Criminal Court Research Articles

The Forcible Transfer of Children from Ukraine as Genocide

Abstract On 17 March 2023, Pre-Trial Chamber ii of the International Criminal Court (icc) issued secret warrants of arrest for President Putin and the Commissioner for Children’s Rights in the Office of the President of the Russian Federation, Ms. Lvova-Belova, for the commission of the war crime of forcible transfer of children. This article argues that there are “reasonable grounds to believe”, as the icc Statute requires for the arrest warrant stage, that both Putin and Lvova-Belova bear individual criminal responsibility for the forcible transfer of Ukrainian children as a crime of genocide; however, two types of considerations – general and particular – prevented the issuing of arrest warrants for genocide crimes. In Section 2, after a short historical-legal review of the formulation of Article 2(e) of the Genocide Convention (gc), the article notes that despite the significant number of cases of children being transferred and removed from their families that have taken place since the gc was adopted, the provision has been dormant and considered anachronistic and was rarely applied by an international or a local court. Section 3 proceeds with a legal analysis of the elements of the crime of the forced transfer of children and the genocidal special intent. Section 4 parses the case study of the forcible transfer of children from Ukraine as a crime of genocide. Section 5 analyses the litigation of the crime of genocide in the icc through the only case of genocide the court has addressed so far: the arrest warrant for Sudan’s former president, Omar al-Bashir. Section 6 concludes with a forecast that despite the sufficient legal basis for issuing arrest warrants for Putin and Lvova-Belova, practical and political considerations would impede the icc from doing so.

Cybercrimes: An Emerging Category of Offenses within the Frame of the International Criminal Court Jurisdiction

In our interconnected society, crime persists, demanding joint efforts by national and international authorities to detect, prevent, and prosecute criminal activities. Jurisprudential evolution mandates lawmakers to possess a comprehensive legal vision, adapting laws to changing social contexts and emerging criminal methods, especially in technology, including computer technology and Artificial Intelligence (AI). This article comments on the escalating vulnerability of sovereign states and their economies to cyber-attacks. The radical evolution of computer systems has led to new modes of aggression, targeting not only traditional legal assets but also individuals familiar with advanced technology. The emergence of "cyberwarfare" prompts inquiries into potential categorizations within international legal frameworks. Recent global conflicts highlight the potential classification of cyber-attacks on critical infrastructure as war crimes or acts of aggression, urging the International Criminal Court (ICC) to consider incorporating cybercrimes into its core interests. While normative references may lack in existing conventions, the Martens Clause emphasizes treating attacks using technology as equivalent to conventional means. Article 51 of the United Nations Charter implies that cyber weapons could be deemed equivalent to conventional weapons under international law. The article stresses the importance of education and advanced training for legal personnel skilled in identifying cybercrime perpetrators, challenging the ICC to recruit or train individuals with the necessary legal and technical expertise for effective cybersecurity responses. The article briefly explores challenges in conceptualizing and categorizing cybercrimes within existing legal frameworks. The intersection of law and technology necessitates harmonious collaboration between legal and technical experts, acknowledging the intricate web of cyberspace and the implications of cyber threats on global stability and security. In conclusion, the article advocates a fundamental shift in the approach to justice, recognizing the ICC's imperative evolution in addressing cybercrimes. Integrating cybercrimes into the ICC's purview aligns with international law principles, emphasizing the equivalence of cyber weapons to conventional arms. Collaboration between legal and technical experts is essential in navigating the complexities of cybercrimes, ensuring accountability, and upholding justice in the digital age. The article concludes by highlighting the proactive role of the ICC in shaping the future of global justice amid emerging cyber threats.

Epistemic Injustice at the ICC?

Abstract This article empirically assesses the role third-party evidence has played in the Office of the Prosecutor’s (OTP) initiation of an investigation into the Afghanistan Situation at the International Criminal Court (ICC). After finding that most of the evidence upon which the OTP relied in its request to initiate an investigation is from third parties, this article classifies and ranks the categories of third party upon which the OTP relied. Critically analysing the OTP’s use of third-party sources, this article uncovers the way potential biases towards dominant languages, affluent locations and prestigious institutions influence the choice of which information to use as evidence, possibly evincing an epistemic injustice at the OTP. Heeding Naz Modirzadeh’s call to use Third World Approaches to International Law (TWAIL) to empower Global South states, this article concludes with recommendations to the OTP and third parties on how they can maximize their collaboration while avoiding capitulation to the politics of exclusion. In addition, the article’s findings reveal opportunities for stakeholders to enhance evidence collection and use by particular third-party categories in Afghanistan and in similar situations.

Not Nuremberg—Histories of Alternative Criminalization Paradigms, 1945–2021: An Introduction

Abstract: The Western myth of Nuremberg has dominated understandings of the evolution of international criminal law. Enshrining the International Military Tribunal as a critical point of origin, this paradigm has developed a narrative of post-war liberal progress, in which a universal model of externally-delivered, individualised criminal justice was interrupted by the exigencies of the Cold War then rediscovered through various international and hybrid tribunals in the 1990s and early 2000s, culminating in the creation of the International Criminal Court in 2002. Often instrumentalised to protect Western interests, the Nuremberg myth marginalises the histories of a wide range of criminalisation and accountability practices that existed, both at the time and since. In this essay, we introduce alternative practices and alliances that challenged both the Nuremberg myth and the specific accountability model it propagates: from the United Nations War Crimes Commission, which contested the colonial erasures of Nuremberg at the time, to the move towards localised forms of post-atrocity justice such as the gacaca courts in Rwanda in the 2000s. The essays in this dossier question the idea that international criminal law hibernated for four decades after Nuremberg and demonstrate how ideas of criminalisation have been shaped by numerous shifting mid- to -late twentieth and early twenty-first century ideologies, such as anti-colonialism, Communism, various iterations of human rights, racial justice, neoliberalism, or, more recently, populist re-imaginings of the global. Shorter Abstract: The Western myth of Nuremberg has dominated understandings of the evolution of international criminal law. This paradigm has developed a narrative of post-war liberal progress, in which a universal model of externally-delivered, individualised criminal justice was interrupted by the Cold War then rediscovered through various international tribunals in the 1990s, culminating in the International Criminal Court in 2002. The essay introduces alternative practices challenging the Nuremberg myth and the accountability model it propagates. The dossier's essays question the supposed 40-year hibernation of international criminal law after Nuremberg and demonstrate how ideas of criminalisation draw on numerous shifting post-war ideologies.

Анатомия кризиса: проблемы субъективной легитимности Международного уголовного суда

The article examines the issues of the subjective legitimacy of the International Criminal Court, which is understood as the perception of the court by States and the professional community, the accused and victims as a institution with the legitimate right to hear criminal cases within its competence. The current practice of the ICC is perceived as an aggravating crisis of its subjective legitimacy, which is expressed in the persistent perception of this court by a significant number of countries and now by almost the entire academic community as an unfair and biased, extremely problematic institution, rapidly dispelling the hopes and illusions that were associated with its creation. An important factor in the current crisis of confidence in the ICC is the court’s inability to assess the impact on its own legitimacy of the inconsistency and inconsistency of its judicial decisions, as well as the abundance of special opinions attached to them. Using the example of the decisions of the ICC Chambers in relation to Afghanistan and Myanmar, it is shown that such ICC practice creates the impression of arbitrary application of law by ICC judges, which undermines confidence in the judicial decisions taken and has a detrimental effect on their non-enforcement.

The United Nations War Crimes Commission 1943–1948: A Forgotten Highway to Postconflict Justice?

Abstract: This article offers a critique of the Nuremberg-inspired paradigm of international criminal justice, which focuses on high-profile, top-down approaches to post-conflict accountability. To this end, it appraises the work of the United Nations War Crimes Commission as a "path not taken." We discuss the very different approach to supporting post-conflict justice adopted by the UNWCC—from its original support base beyond the major geopolitical powers, to the impact of its more deliberative system, to the role of the UNWCC as a hub in which new practices of international law were developed. Such an approach had its achievements: the UNWCC assisted in prosecuting significantly more cases than the International Military Tribunals at Nuremberg and Tokyo, as well as the subsequent Nuremberg Military Tribunals, and its structure lent itself to effective use of national expertise and resources. It also had weaknesses and limitations. The Commission was unable to resist great power politics, which eventually led to its demise. We then discuss the implications of such a model for modern-day international criminal justice. While many of the advances made by the UNWCC have echoes in modern-day processes of "convergent evolution," there is much still to learn from examining this period of institutional innovation. Recent efforts to institute "positive complementarity" and more cooperative, facilitatory, and horizontal criminal justice institutions could benefit from exploring the UNWCC model. While it remains strictly within liberal approaches to international criminal justice, we argue that the UNWCC represents a clear alternative to the "Nuremberg model" and contemporary approaches to international criminal law, including the work of the International Criminal Court. Shorter Abstract: This article offers a critique of the 'Nuremberg model', which focuses on high-profile, top-down approaches to post-conflict accountability, in favour of the model offered by the United Nations War Crimes Commission. We discuss its achievements – especially around peer review, sharing best practice, and participation of states outside Western Europe and the US – as well as its weaknesses and limitations in the face of great power resistance. We then discuss its lessons for "positive complementarity" today, with more cooperative, facilitatory, and horizontal (in terms of state influence) forms of post-conflict justice. It offers several possible paths for future development.

Strengthening the role of local agri-food systems in overcoming the consequences of using food as a weapon in Ukraine

One of the vulnerabilities of Ukraine, which was highlighted by the use of food as a weapon in the Russian war against it, was its excessive raw material export orientation and weak internal rooting of the agri-food system, as well as the insufficient resilience of its local links. The purpose of this study was to substantiate the potential for strengthening local agri-food systems through the fuller involvement of small-scale agricultural producers with a focus on meeting the food needs of all segments of the population. The study employed the following methods: system analysis, grouping and classification, statistical analysis, formalisation, abstract and logical. The study covered the manifestations of Russia’s use of food to achieve political and military goals in Ukraine, as well as the role of small agricultural producers in mitigating their adverse consequences. It was found that the key to strengthening the sustainability of the agri-food system at both the local and national levels is to provide farm enterprises and household farms with diversified access to domestic markets by stimulating demand for their agricultural products. The study substantiated the forms of implementation of this task through the introduction of programmes of linked food subsidies for vulnerable groups of the population, public procurement from small producers for school meals, and promotion of solidarity food security at the community level. The study assessed the need for resources for these programmes and the potential of small farms to produce the necessary products, showing that the introduction of these programmes will facilitate the transition of agriculture to agroecology. The study also covered the possibility of financing measures to overcome the consequences of the use of food as a weapon while supporting small producers through the use of the National Bank’s targeted issue with partial involvement of budgetary funds within the framework of strengthening the national rootedness of the agri-food system, as well as donor support.The practical significance of the findings of this study lies in the possibility of their use in the implementation of food support measures for vulnerable groups and the preparation of a lawsuit to the International Criminal Court regarding the weaponisation of food by the Russian Federation in the war against Ukraine.

Crimes Against Humanity: A Human Rights Perspective

This research article explores the multifaceted concept of crimes against humanity through the lens of international human rights, examining its historical origins, legal framework, and contemporary challenges. Tracing the evolution from the aftermath of World War II to the establishment of the International Criminal Court (ICC), the paper emphasizes the human rights implications of these crimes, elucidating the violation of fundamental rights on a mass scale. By analyzing recent developments and case studies, the article underscores the imperative of a global commitment to justice, accountability, and the protection of human dignity in the face of crimes that transcend national boundaries. The research contributes to the ongoing discourse on the intersection of human rights and crimes against humanity, advocating for a holistic approach that integrates legal principles with universal values.

Backlash and Beyond: Three Perspectives on the Politics of International Justice

Abstract This review essay evaluates three new books on international justice, focusing in particular on cooperation and backlash against the International Criminal Court: Africa and the Backlash Against International Courts by Peter Brett and Line Engbo Gissel, Saving the International Justice Regime by Courtney Hillebrecht, and State Behavior and the International Criminal Court by Franziska Boehme. It provides an overview of the books and explores how each work analyses African state responses to the ICC investigation in Darfur, then assesses the implications of the books for understanding contemporary debates about international justice.

The Prosecution of Atrocity Crimes in the Great Lakes Region of Africa, between Accountability Logic and Political Strategies

Abstract Several efforts have been undertaken to uphold the liability for atrocity crimes in the Great Lakes Region of Africa. Even though the International Criminal Court, the International Criminal Tribunal for Rwanda, and domestic courts opened proceedings against alleged perpetrators of atrocity crimes in the Democratic Republic of Congo, Central Africa Republic, Uganda, Kenya, Sudan, Burundi, and Rwanda, these prosecuting efforts are viewed as pursuing political strategies. Based on documentary analysis and an online research survey, this research paper shows evidence of accountability logic and political strategies. Although the undertaken efforts are in line with the logic of accountability, they remain under the influence of political strategies. The research findings highlight that political strategies have been influencing criminal law codification and its enforcement.

ANALISIS KEWENANGAN INTERNATIONAL CRIMINAL COURT (ICC) PADA PENANGANAN KASUS PALESTINA MENURUT SUDUT PANDANG HUKUM PIDANA INTERNASIONAL

An international criminal court (ICC) is a criminal court that is a permanent within international legal scope, which has competence try individuals on the basis of criminal acts of an international nature. These criminal acts include war crimes, genocide, evil on humanity, and aggression crime. International criminal courts were designed with the goal of mitigating the malaise of national judicial systems. In this context, the ICC will only carry out its functions and authority when the country's national courts are no longer able to invest and prosecute this form of crime. As a court established to handle and resolve international crime problems, ICC have a significant role in maintaining world peace. Therefore, the war conflict which happened in Palestine is one of the jurisdictions of the international criminal court to handle it

The International Criminal Court’s Opportunity to Correct the Erroneous Interpretation of the Mens Rea for Genocide

ABSTRACT: The destruction of a group by a process of forced conversion or assimilation, wherein the identity of a protected group, be it national, ethnic, racial, or religious, is eradicated and replaced with another identity is not covered by the prevailing definition of the mens rea of the crime of genocide, which requires that a perpetrator intend the physical or biological destruction of a protected group. This article argues that genocide has been inaccurately applied by international courts, based on an incorrect interpretation of the Genocide Convention that has dominated international law for twenty years, and discusses what non-physical/biological destruction of a group looks like in practice. The article proposes that events in Ukraine give the International Criminal Court, which has yet to definitively interpret the crime of genocide, an opportunity to correct this legal error and thereby ensure that genocide offers better protection to groups from destruction.

The Post-Ongwen Case Period and the Reconciliation Process in Northern Uganda: Local Communities as a Site of Knowledge

Abstract By providing victims with more space in the Ongwen case, the International Criminal Court (icc) has significantly contributed to the healing of the trauma and community reconciliation in northern Uganda. That said, this court has also raised issues that could affect local efforts to achieve peace, namely the positioning of victims of child soldiers vis-à-vis criminal child soldiers. Drawing on qualitative data collected through focus group discussions with some community members from locations under investigation by the icc, this sociolegal study examines the victims’ narratives about child soldiers and the different ideas of human rights that emerge. Then, it explores how these ideas may shape future transitional justice mechanisms designed in the global sphere. Finally, it discusses the extent to which they may impact the relevance of current justice initiatives. Overall, this paper analyzes the substantive effect of victim participation in the Ongwen case on local peacebuilding initiatives in northern Uganda.

Criminological specificity of war crimes, their difference from crimes against humanity and genocide

At the present day sometimes crime of genocide is practically described as a crime against humanity, and the latter is characterized as war crimes. Although some similarity does exist between these kinds of crimes, they have different peculiarities by their constituent elements. These peculiarities possibly may be linked with warfare, but it wouldn’t be correct to bind them entirely with warfare. This difference can be found even in the charters of international criminal tribunals, particularly in various articles of Statute of the International Criminal Court: crime of genocide in Article 6, crimes against humanity in Article 7, and war crimes in Article 8 respectively. Unlike war crimes, crimes against humanity and crime of genocide can be perpetrated both in times of warfare and peace. It’s always important to distinguish the latter from war crimes.

Анатомия кризиса: проблемы нормативной легитимности Международного уголовного суда

The article examines the issues of the normative legitimacy of the International Criminal Court, which is understood as the conformity of the creation and operation of the court with the norms and principles of international law, as well as with the conditions of consent of States regarding the status of this court, competence and jurisdiction formulated in the Rome Statute as the founding document of the court. The current practice of the ICC and the Prosecutor of the Court in some fundamental issues has clearly departed from the conditions for the exercise of their jurisdiction enshrined in the Rome Statute, which calls into question the normative legitimacy of such actions of the Court and the Prosecutor. States, after two decades of the Court’s activity, have clearly not received the court they expected, developing and agreeing on the provisions of the Rome Statute, which may give States sufficient grounds to stop considering this court as a legitimate source of judicial power

The Challenges of Filling Cases to the International Criminal Court

The International Criminal Court is one of the pillars of the international criminal judicial system that was established according to the Rome Statute with the aim of prosecuting individuals accused of crimes of an international nature according to the jurisdictions that fall under its legal jurisdictional authority. However, the court faces obstacles and problems with regard to submitting and referring cases to the court. The researchers attempt to shed light on some of these problems. The researchers found that the problems are divided into four main categories related to the referrals from signatory states, referrals from non-signatory states, referrals from the United Nations Security Council, and referrals from the Prosecutor of the Court. The researchers presented a number of solutions and suggestions that aim to develop the work of the court and increase its effectiveness to achieve the ultimate goal of achieving justice and protecting victims.

Предъявление обвинения международным уголовным судом заведомо невиновному как международное посягательство и национальное преступление

The article gives a legal assessment of the fact of illegal charges brought by the International Criminal Court against the President of the Russian Federation and the Commissioner for the Rights of the Child under the President of the Russian Federation. The public danger of this fact as an international encroachment is considered from the perspective of possible consequences caused at the international and national level. The article analyzes the legal basis of criminal responsibility for the commission of acts by the International Criminal Court through the signs of the crime: the object, the objective side, the subject and the subjective side. It is concluded that the judges of the International Criminal Court committed a crime provided for by the criminal legislation of the Russian Federation.

Children Born of War: The Recognition of Children Born of War as Victims in the Ongwen Case

Abstract This article explores the challenges associated with recognizing children born of war as victims within the framework of international criminal law. Focusing on the case of Dominic Ongwen, a former child soldier and senior commander of the Lord’s Resistance Army (lra), it analyses how the criteria established in the definition of victim in the Rules of Procedure and Evidence of the International Criminal Court have been applied to children born of war. This analysis brings to the fore conceptual challenges to the recognition of children born of war as victims and highlights the risks that the binary victim-perpetrator that characterises the international criminal narrative presents to a comprehensive understanding of the experiences and needs of these children.

The issue of increasing legal responsibility for environmental damage

Protection of nature, during an armed conflict, should be recognized as an absolute value. The result of the Russian military aggression in Ukraine was the large-scale destruction of the living environment, massive pollution of the land, atmosphere and water environment with the use of methods and means of conducting military operations aimed at causing great and long-term damage. The brutality of the Russian Federation’s military invasion of Ukraine led to dire humanitarian consequences and serious environmental damage. Ukraine will be left with a toxic environmental legacy for future generations. Based on this, our state is obliged to create a sufficiently clear legal field at the national level, which would include responsibility for causing damage to the environment. The imposition of legal responsibility for offenses in the field of environmental protection should be a signal that such behavior is unacceptable.
 The Parliamentary Assembly of the Council of Europe adopted a resolution on the negative impact of war on nature, which defined the crime of “ecocide”. The resolution recognizes the need to amend the Rome Statute of the International Criminal Court by adding a new criminal act. The article analyzes the provisions of the current criminal legislation on ecocide. Taking into account the negative experience of Ukraine during the conduct of military operations, it can be stated that the environment has a direct, primary impact on the life and health of people and all living beings, which are recognized as the highest value. Damage to the environment, as a result, leads to the deterioration of the conditions of existence of all types of flora and fauna. That is why the offense of ecocide needs to be distinguished in international legal acts on a level with such crimes as genocide, crimes against humanity, acts of aggression and war crimes.

The role of non-governmental human rights organizations in ensuring the collection of evidence for the international criminal court in the context of the war in Ukraine

In Ukraine, starting from February 2022, every day servicemen of the Russian army commit crimes that are a direct violation of international humanitarian law, not only on the front line, but also in the depths of the country, in the central and western regions. The author of the article analyzes the procedure for pre-trial investigation of international criminal crimes and the role of non-governmental public human rights organizations in this process. In addition, the new functions assigned to NGOs as separate non-governmental human rights organizations that have been operating on the territory of Ukraine since the beginning of the full-scale invasion were considered. The legal mechanisms for the involvement of NGOs in the collection of evidence on the ground, as well as the possibility of taking into account the collected information by international justice bodies, were studied. Specific examples and initiatives of the public sector, within the scope of the issue being studied, are given, and the functions, competences, and opportunities for increasing the effectiveness of NGO activity in the conditions of war are defined.
 It was concluded that non-governmental organizations, including human rights organizations, during the war in Ukraine discovered new areas of work and expanded the possibility of cooperation with state bodies. In turn, law enforcement agencies have provided access to limited information for the NGOs themselves by internal orders, which together increases the effectiveness of the pre-trial investigation of committed crimes. Thanks to this, feedback has been established. Special attention should be paid to the work of foreign NGOs and volunteers, which contributes to the recording of war crimes and crimes against humanity, which current Ukrainian refugees witnessed or became victims of.
 It was concluded that the main areas of evidence-gathering NGO activity are the following: 1) dissemination of information in the mass media about the condition of refugees who suffered as a result of the crimes of the Russian military, documenting the stories of witnesses of such offenses. In particular, the facts of torture and sexual violence (from the testimonies of refugees from Ukraine) were reported by the mass media in many European countries and beyond; 2) provision of advisory assistance regarding high-quality recording of episodes of criminal acts in order to recognize such evidence as appropriate; 3) peaceful gatherings and protests of public organizations, the active public against Russia’s war crimes in Ukraine, which, of course, is of great importance for the international community to recognize their severity and massiveness.
 It was concluded that the wide international recognition of the war crimes of the Russian Federation creates opportunities for the successful initiation of the International Tribunal or other judicial formats (such as the International Criminal Court, the Extraordinary Chamber) to bring the perpetrators to justice. All international actors collect evidence according to the clear requirements and standards of the International Criminal Court, and subsequently either transfer it to it or accumulate it in the prosecutor’s offices of certain countries for further referral to a designated responsible judicial body.