Permanent International Criminal Court Research Articles

Yurisdiksi Mahkamah Pidana Internasional Terhadap Penegakan Hukum Bagi Pelaku Kejahatan Perang Yang Bukan Negara Pihak Statuta Roma 1998

Introduction: The establishment of a permanent International Criminal Court (ICC) has opened a new history in law enforcement crimes of genocide, humanity, war, aggression. The Roma Statute of 1998 became the constitutional basis for International Criminal Court.Purposes of the Research: To find out the jurisdiction of the International Criminal Court to enforce the law for perpetrators of war crimes war that is not a state party to the Roma Statute of 1998.Methods of the Research: The method used in this study is normative juridical with an approach to international legal regulations and concepts. The sources of legal materials used in this study are primary legal materials, secondary legal materials and tertiary legal materials.Results of the Research: The results of the discussion are that in the ICC efforts to enforce the law based on the provisions of article 12 concerning the requirements for exercising jurisdiction related to the ICC issuing an arrest warrant for Vladimir Putin is contrary to the provisions of article 12 paragraph (1) which confirms that the country that is a party to this statute, thus accepting the jurisdiction of the court with regard to the crimes referred to in article 5. This is because both Rusia and Ukraina are countries that are not parties to the Roma Statute 1998, so that the arrest warrant against Vladimir Putin is null and void. However , there is an exception in article 13 paragraph (3) of the statute which state that if a state which is not a state party declares that it accepts this statute and ratifies this statute, then the ICC can exercise its jurisdiction over the state which has accepted the jurisdiction of the ICC. So that the attempt to arrest Vladimir Putin can be carried out constitutionally under the statute.

Krivično delo prinudnog zaključenja braka u međunarodnom krivičnom pravu

During armed conflicts in some countries, it became a common practice for fighters to force women to serve as wives. Although there is usually no official conclusion of marriage, in this way a relationship is created that is in many ways similar to a conjugal relationship. In a forced marriage, "wives" were expected to maintain regular sexual relations with their "husbands", but also to perform housework, get pregnant, take care of born children and their "husbands". Having this practice in mind, the Prosecutor before the Special Court for Sierra Leone determined this behavior as forced marriage and qualified it as other inhuman acts within the framework of crimes against humanity. This opened the door for a lot of legal problems related to the "new" crime. Namely, the question arose as to what the criminal act of forced marriage entails, i.e. what is the actus reus of this criminal act. Then, what is the difference between forced marriage and some other acts of crimes against humanity that are similar to it, such as, for example, sexual slavery. And finally, is forced marriage an act that is similar in its character to other acts of crime against humanity, so that it could be classified as other inhumane acts. The paper analyzes the etiological-phenomenological dimension of forced marriages in Cambodia, Sierra Leone and Uganda. After that, decisions of Extraordinary Chambers in the Courts of Cambodia, Special Court for Sierra Leone and permanent International Criminal Court are analyzed regarding all disputed issues related to forced marriage: the status of this act in international criminal law, the relationship with other similar international criminal offenses and the concept of forced marriage. Finally, proposals de lege ferenda are presented regarding the definition of forced marriage and its explicit prescription in international criminal law.

Justice Swapped for Peace : Understanding Justice

One of the main themes in the analysis of the politics of international criminal justice has been the "Peace versus justice" debate. Though it could also help peace processes, the permanent International Criminal Court's position is sometimes regarded as a barrier to them. This study aims to provide a more sophisticated way to accurately evaluate the impact of the ICC by contrasting sometimes opposing viewpoints. In actuality, the Court may not fulfill either function solely.States and international organizations must uphold the obligation to prosecute when it is applicable in order to avoid sending the wrong message about the significance of the treaties that give birth to this duty, which could endanger their own populations and undermine the rule of law more broadly.

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.

The Development of International Criminal Justice: Expectations and Reality

The article deals with the efficiency of international criminal justice. It is proved that the development of the system of international criminal justice took place rather in waves, and the permanent International Criminal Court can hardly be called an effective judicial institution. All international criminal courts encountered the same problems and were effective if there was adequate cooperation between the states. Attention is drawn to the existing armed conflict in Ukraine and the prospects of prosecution of persons who committed international crimes.

THE FUNCTION OF THE INTERNATIONAL CRIMINAL COURT IN DEFENDING HUMAN RIGHTS AGAINST CRIMES

Humankind had to wait for the shock of the dramatic events and gross violations of human rights in the former Yugoslavia and Rwanda for the international community to accept the idea of establishing a permanent international criminal court, which was established after the obstacles and criticisms leveled at the international military tribunals of Nuremberg 1945 AD and Tokyo 1946 AD, and the Special International Criminal Courts for the former Yugoslavia 1993 AD and Rwanda in 1994; Which centered its foundation around its submission to the logic of control, power and inequality. On this basis, the international community intensified efforts to reach the endorsement of the Statute of the International Criminal Court, In addition to punishing the perpetrators of human rights violations and preventing crimes in the future, the court sets principles with regard to reparation for the damages suffered by the victims or in relation to them, including restitution, compensation and rehabilitation, by establishing a trust fund for the benefit of the victims in the crimes that fall within the jurisdiction of the court and for the benefit of the families the victims. The study adopted the historical approach, the comparative analytical approach, and the descriptive approach in order to stand on the historical development of the efforts of the International Criminal Court in protecting and promoting human rights, as well as tracking the efforts and studies that accelerated the achievement of this goal, as well as analyzing and scrutinizing opinions and positions in the light of the rules of international law and decisions of international legitimacy

New court, same division: The Bemba case as an illustration of the continued confusion regarding the command responsibility doctrine

AbstractProsecutor v. Jean-Pierre Bemba Gombo was the International Criminal Court’s first case directly addressing the command responsibility doctrine. As the first permanent international criminal court who can exercise jurisdiction over a majority of the world’s nation states, its interpretation of the doctrine was potentially an important development in international criminal law and an opportunity to affirm the legal responsibility of commanders for their subordinates’ crimes. However, rather than providing a clear articulation of the doctrine and its scope, the Appeals Chamber was split. By a 3–2 majority, it reversed the Trial Chamber’s decision and the Appeals Chamber’s judges were sufficiently divided in their reasoning that they felt compelled to deliver separate opinions.A key disagreement within the doctrine is whether command responsibility is a mode of liability or a separate offence of dereliction of duty. This disagreement feeds into further contestation about the doctrine’s core elements, including the standard of fault necessary under its actus reus or mens rea elements. This article examines the judges’ reasoning in Bemba to illustrate that, despite decades of jurisprudence and academic debate, there is still confusion on these foundational elements. Instead of being ‘settled law’, the debate on command responsibility is still live. The article maintains that the current law supports a mode of liability interpretation but proposes that reclassifying the doctrine as a separate offence could resolve many of its tensions while observing the culpability principle, satisfying its justifications, and facilitating an adequately wide scope of accountability.

Advancing the Rule of Law and Human Rights Protection through United Nations Mandated Mechanisms

Over the past fifteen years, the international community has increasingly relied upon United Nations mandated mechanisms comprising commissions of inquiry, fact- finding missions, and investigations to help address gross violations of human rights and the often blatant disregard for the rule of law during periods of civil unrest, conflict, and post-conflict contexts. The primary reason for why this approach has been preferred centres upon the fact that achieving accountability through internationally mandated tribunals and prosecutions is not only difficult to realize but further complicated due to realpolitik permeating among relevant international decision- making structures. For example, to activate meaningful judicial accountability at the international level, agreement amongst the highest echelons of the United Nations vis- a- vis a Security Council resolution is required to mandate an accountability mechanism. Indeed, even a referral to the permanent International Criminal Court underpinned by the Rome Statute requires a Security Council referral for non- State parties. The complexity of activating these measures, however, has served to ensure the continuation of numerous protracted armed conflicts – characterized by the perpetration of atrocity crimes, violations of international humanitarian law, and violations and abuses of human rights – to the detriment of millions of civilians worldwide. This contribution finds that the Commissions of Inquiry on Syria and Libya have been able to advance the rule of law and the protection of human rights by investigating and reporting publicly on findings by all parties to these respective conflicts, in particular on atrocity crimes, violations of international humanitarian law, and violations and abuses of human rights perpetrated by non- State actors. Both Commissions have taken similar positions on the application of human rights to non- State actors, in that non- State actors that cannot formally become parties to international human rights treaties must nevertheless respect the fundamental human rights of persons in areas where such actors exercise de facto control. The contribution continues by exploring the roles of the Commissions of Inquiry for Syria and Libya in the general quest for prevention: i.e., can the establishment of these mechanisms deter belligerents from perpetrating abuses of human rights and disregarding the rule of law? The article argues that if UN- mandated mechanisms – including commissions of inquiry, fact- finding missions, and investigations – are well supported, especially when concerned States grant such bodies protected access on the ground, they can significantly act as a deterrent and contribute to the respect for human rights and the rule of law. This may be achieved particularly through their cooperation and sharing with accountability bodies and the documentation and preservation of evidence collected.

The Genesis of the International Criminal Court

Abstract This work analyzes the practice of the International Criminal Court (ICC) as the most ambitious project aimed at combating and preventing mass violations of human rights in inter-and intrastate conflicts. Sure thing, such an institution has not emerged from anywhere, but it is the culmination in the progress of international criminal law evolution. That is why the progress that was made over the centuries and historical conditions forcing its establishment cannot be ignored. This article studies the formation of the International Criminal Court through the prism of the history of previous models of judicial bodies bringing to justice war criminals. Moreover, it analyses the historical conditions and international debates around the establishment of a permanent international criminal court. Conclusions focus on the problems that arose during the establishment of the ICC, and the ways in which they affect ICC activities nowadays.

PERDAGANGAN PEREMPUAN DAN ANAK SEBAGAI KEJAHATAN TRANSNASIONAL

Organized crime in the transnational trafficking of women and children is a serious and farreaching crime and can even be classified as crimes against humanity as stated in the Rome Statute (1998) which regulates the permanent international criminal court. The objective of the provisions in protocol II is the criminal organization behind the trafficking of women and children, namely by punishing the perpetrators and protecting their victims, namely women and children. In the Palermo Convention2000) it is emphasized that the main objective is to enhance and strengthen cooperation between states parties in preventing and eradicating the five types of crimes which are the jurisdiction of the convention. This paper is the result of a research useing normative juridical approach by reviewing, and examining secondary data in the form of legislation, legal principles, and cases relating to the problem regarding to the trafficking of women and children.

Extraterritorial Justice: Can Swedish Trials Provide Remedies to Victims of Atrocity Crimes?

ABSTRACT Accountability for serious human rights violations and atrocity crimes has established itself at the top of the international community’s legal agenda, not least to serve justice to the victims of the crimes. Efforts to refer the atrocities in Syria to the permanent International Criminal Court have been in vain, highlighting the need for third states exercising extra-territorial jurisdiction. Sweden has answered the call to investigate the crimes, and the strong position afforded to victims of crime in the Swedish criminal justice system suggests that it is well-suited to provide them the justice they are entitled to. This article draws on the experiences gained in the seven trials to date in which victims have participated, to assess the extent to which international legal obligations towards the victims are implemented and were accessible to the victims. Through analysis of legal documents and interviews, the author demonstrates that, while the Swedish system has been fulfilling a wide range of international legal obligations towards victims of crime, the remoteness in time and place, the large number of victims involved and other specifics of the investigations and trials, challenge several central aspects of the Swedish system, such as the right to information, support and reparation.

Sharon Weill, Kim Thuy Seelinger, and Kerstin Bree Carlson (editors), The President on Trial: Prosecuting Hissène Habré

For a time, the creation of international criminal justice institutions seemed to follow a predictable and linear path. Following a long period of inactivity after the post-World War II trials, there was a burst of creation starting in 1993 with the establishment of the International Criminal Tribunal for the former Yugoslavia (ICTY), followed by the establishment of a series of ad hoc international or hybrid tribunals for Rwanda, Sierra Leone, and Cambodia.1 The culmination of this creative period was the International Criminal Court (ICC), the first permanent international criminal court, established by the Rome Statute in 1998 and ratified by the required 60 states that would allow the court to come into existence by 2002. The ICC seemed to offer a simple and comprehensive solution to the expensive and impractical problem of trying to establish an ad hoc tribunal following each new atrocity. It obligated states to investigate and...

Genocide Never Sleeps. Living Law at the International Criminal Tribunal for Rwanda

International tribunals come and go. By the 2020s, it became clear that the international community had less appetite for international justice than in the early 1990s. Against the background of the permanent International Criminal Court (ICC), the United Nations’ (UN) International Criminal Tribunal for Rwanda (ICTR) — one of the only ever two fully powered UN tribunals — was a unique past phenomenon. Its unfinished business lives on in the UN’s International Residual Mechanism for Criminal Tribunals (IRMCT). Following the arrest, in mid-2020, of the ICTR’s main fugitive, Felicien Kabuga, its Arusha branch will convene the last major international trial. While awaiting the proceedings, and to get a taste of what the ICTR was about, one ought to read Nigel Eltringham’s latest book, with the eye-catching and distressing title Genocide Never Sleeps. It stems from a lawyer who joked, at 1 O’clock in the night over drinks at the ICTR’s popular hangout Via Via, ‘genocide never sleeps and neither should we’.1 It alludes to both what has become a trope for the mass murder of Rwandan Tutsi – proverbially carried out when ‘God was sleeping in Rwanda’ — and to sleepless nights working on complex and haunting cases. No matter how provocative, unsettling and confusing, this utterance illustrates how some lawyers were ‘living the law’.

ابعاد التطهير العرقي ضمن توصيفات النظام الدولي الجنائي للجريمة الدولية

اجتاز تجريم الانتهاكات الخطيرة التي تلحق بالإنسان مراحل مهمة من تاريخ البشرية ابرزها كانت في القرن العشرين , خاصة بعد محاكمات نورمبرغ 1945 وطوكيو 1946,مرورا بمحاكمات يوغسلافيا السابقة 1993 ومحاكمات رواندا 1994 انتهاء بوضع النظام الاساسي للمحكمة الجنائية الدولية الدائمة 1998 ,حيث تم وضع الحجر الاساس لبدايات قانون دولي جنائي لملاحقة الاشخاص الذين يرتكبون جرائم على مستوى التصنيف الذي اعتمده في الوقت الحاضر ,متمثلة في جريمة الإبادة الجماعية ,والجرائم ضد الإنسانية ,وجرائم الحرب ,محددا معنى واركان هذه الجرائم , والتي يمكن وصفها بالجرائم المعيارية لها محددات معينة تطورت من خلال اجتهادات المحاكم الجنائية الدولية على اختلافها مع ما كان منصوصا عليه في الاتفاقيات والاعراف الدولية ,تستقر على قاعدة الشرعية الجنائية التي لا يمكن للقانون الجنائي الدولي ان يخرج عنها وان اتسمت بمرونة نوعية عن تلك السائدة في القوانين الوطنية. لكن للأسف لم تكن هذه الجرائم هي وحدها التي تتسم بالوحشية والخطورة على الانسان والمجتمع ككل بل رافقتها في كل حين جريمة شغلت اهتمام المجتمع الدولي , وهي التطهير العرقي سلط الضوء عليها بدايات التسعينيات من القرن العشرين والتي كانت محور لإشكالية مهمة في القانون الدولي الجنائي بانها لم تندرج بصيغة صريحة أو مكتوبة أو عرفية فيه. مما فتح مجال تكييفها ضمن الجرائم الدولية الثلاث المعيارية ما اثار جدلا بين موافق ورافض .

The role of international criminal justice in protecting victims of torture

The international criminal judiciary exercises its jurisdiction over the most serious international crimes, including the crime of torture, which is considered one of the gross violations of human rights. In addition to the Permanent International Criminal Court, which played a prominent role in expanding the acts that constitute the crime of torture and stipulating the punishment of its perpetrators and the compensation of its victims.

International Law and American Criminology: Lessons of Racist Torture and Reparations from Geneva to Chicago

This paper considers the development of international criminal law and as a field of study in American criminology. Despite the important U.S. role in establishing the International Military Tribunal and war crimes trials at Nuremberg following World War II, American politicians and criminologists did little to advance the further development of international criminal law or courts. Post-war Cold War tensions between the Soviet Union and the U.S., and domestic research preoccupations of American criminologists, discouraged further contributions. Finally, following the collapse of the Soviet Union and the outbreak of atrocities and war crimes in the Balkans, the United States took renewed interest and helped to create an ad hoc International Tribunal for the Former Yugoslavia [ICTY]. However, when the U.N. established a permanent International Criminal Court [ICC] to handle the prosecution of war crimes, American enthusiasm and support waned, and it ceased during the Trump Administration. Yet there were other signs international criminal law could still be significant. When the U.S. was revealed to be torturing detainees in Iraq, and a police detective was found to be operating a torture squad in Chicago, the U.N. High Commission on Human Rights [UNHCHR] used its procedures to pressure the U.S. and the city of Chicago to investigate. Later, the same procedures were used to pressure Chicago to support a reparations program for victims and families of police torture. International criminal law was more resilient and relevant than is commonly believed.

EXECUTION OF IMPRISONMENT SENTENCED BY JUDGMENT OF THE INTERNATIONAL CRIMINAL COURT

One of the current issues of criminal law, in general, is the issue of execution of a criminal judgment sentenced by the international criminal court (ad hoc or permanent international criminal court). The issue is ongoing because international criminal courts do not have their institutions for the enforcement of criminal sanctions they impose, but are, in that regard, instructed to cooperate with states that express readiness to execute criminal sanctions - imprisonment sentences imposed by an international criminal court in their prison facilities. Among the numerous issues related to this issue, the paper analyzes only those related to the legal basis for standardization, conditions, and manner of execution of a prison sentence imposed by an international criminal court.

The Enigmatic Principle of Complementarity: A Negotiated Machinery for Implementing International Criminal Law

The International Criminal Court (ICC) is the first court of its kind—a permanent international criminal tribunal. It has introduced a new kind of jurisdictional principle, namely the principle of complementarity. However, the idea of a forum exercising jurisdiction over transgressors of rules of international criminal law did not emerge with the ICC and can be traced back to the Nuremberg Tribunal. When the idea to establish a permanent international criminal court came about, it was apparent that the doctrine of state sovereignty and the territoriality principle would be the biggest hurdles that would have to be overcome. Complementarity would prove to be the solution that was agreed upon.

TRIBUNALES ESPECIALES O HÍBRIDOS Y MECANISMOS RESIDUALES EN EL SISTEMA DE JUSTICIA PENAL INTERNACIONAL

La lucha contra la impunidad de las graves violaciones a los derechos humanos y elestablecimiento de un tribunal penal internacional permanente han sido una constante a partirde la Segunda Guerra Mundial. A fines del siglo XX e inicios del Siglo XXI, nuevasjurisdicciones penales internacionales fueron establecidas además de una corte penalinternacional permanente: los tribunales Especiales para no dejar impunes graves violacionesa los derechos humanos ocurridas durante la guerra fría y los Mecanismos Residuales, comoparte de una estrategia para finalizar toda actividad jurisdiccional penal internacional temporalestablecida post Guerra Fría. Ambas jurisdicciones, si bien temporales, reconocen laimportancia de la justicia nacional y se dirigen a fortalecer el sistema de justicia penalinternacional permanente.

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.