Rome Statute Research Articles

Why does the International Criminal Court Fail to End Impunity: An Analysis of ICC’s Operative and Structural Flaws

The International Criminal Court was established to end impunity while sentencing some of the worst criminals committing brutal mass murders. Facing doubts from critics regarding its effectiveness, it is only a matter of time before this court meets its end. Past research usually offers suggestions with a third party’s involvement, while this research focuses on empowering the court itself and its root causes: legal and operational flaws. Methods such as data analysis of the ICC’s financial report and past cases are utlized. These findings are later used to propose recommendations that ensure more effective communication between ASP and the ICC and amend the Rome Statute to grant the ICC more authority. The specific areas of flaws tested in this research can become valuable information for future research, while the ICC can consider the legal recommendations from this research as guidance for future actions.

“Bogus claim of jurisdiction” - Congressional opposition to the ICC in the 2000s

Despite helping develop the Rome Statute, when it came to signing the International Criminal Court (ICC), America stepped out. They argued that their forces were a major power in peacekeeping, and claimed to fear the indictment of their own servicemen. But was this really the case? By analyzing a meeting record between the Congress of Foreign Relations, this paper seeks to find the congressional opinion as to why they didn’t sign the ICC. In taking into account both conservative and democratic views, the meeting records reveal that America refused to sign the ICC because they believed the Court was unreliable and lacked civil rights, as opposed to fear of indictment.

Witness Preparation at the International Criminal Court

Abstract The case law on witness preparation at the International Criminal Court (ICC) does not provide a coherent answer to whether it is admissible. Similarly, scholars have examined this practice from different perspectives, but they have not come to a consensus, and no academic study focuses on the link between witness preparation and witnesses’ well-being. This article analyses ICC case law on this issue and identifies three different approaches to witness preparation. It suggests that witness preparation corresponds to a legal obligation under Article 68 of the Rome Statute to protect witnesses’ well-being. Additionally, Article 68 imposes an obligation to ensure witnesses are adequately prepared upon the entire ICC and not only its judges. This article recommends that the ICC should hold a broad consultation on witness preparation with different actors. Finally, given that the practice has the potential to be abused, this article provides some suggestions on how to balance witness preparation with the right to a fair trial and witnesses’ rights.

The role of the International Criminal Court in criminalizing Israeli attacks on the Palestinian people

The International Criminal Court, which is governed by the Rome Statute, is the first permanent court established on the basis of a treaty established to hold accountable the perpetrators of the most serious crimes at the global level, such as war crimes, crimes against humanity, and genocide. On July 17, 1998, the work of the Diplomatic Conference on the Establishment of an International Criminal Court concluded with the approval of the adoption of the Statute of the Court. The International Criminal Court is a permanent and independent institution and is not considered one of the sections of the United Nations. The Statute clarifies that the main task of prosecuting and punishing the perpetrators of crimes lies with States parties, and the Court complements those efforts. The Court is considered the focal point for the application of the international criminal justice system, to include national courts, international courts and courts that include national and international elements. The increase in the intensity of international conflicts and wars in many parts of the world has had an impact on the increase in the commission of war crimes against civilians and the high rates of human rights violations, in the absence of an appropriate mechanism adopted by the international community to reduce these violations and punish and prosecute those who are behind them, whether they are individuals, states, organizations or governments.

Queering the Rome Statute: Searching for the International Criminal Court’s Potential to Do Justice to Queer People

ABSTRACT The Rome Statute of the International Criminal Court (ICC) is tasked with holding individuals accountable for the perpetration of the most heinous international crimes. However, the Rome Statute does not provide express grounds for protecting queer people. This article examines to what extent the ICC can protect queer people, by adding a queer reading to doctrinal interpretations to trouble and problematise uncritical legal protection. The crime of genocide and the crime against humanity of persecution serve as the main sources of study, in addition to international human rights law due to its connection with the Rome Statute. The queer reading demonstrates that despite the ICC’s ability to protect queer people in some ways, the interpretations of the Rome Statute are limited in their potential to do justice to queer people. As such, this article ventures out into a discussion on the possibility for the ICC to ever provide justice for queer people by navigating queer abolitionist critiques. It argues for an approach that de-centres the ICC, thereby creating space for legal transformation to resist queer erasure, whilst simultaneously looking for alternative (re)imaginings that queer abolitionism creates.

Gender Persecution and the Sarah O. Case: Strengthening the Rome Statute through Domestic Trials

Abstract The crime of gender persecution holds great potential for the adequate prosecution of gender-based violence in international criminal law. Codified in Article 7(1)(h) of the Rome Statute as a crime against humanity, it provides an opportunity to condemn gender-specific violence beyond sexual acts. However, the icc has so far only made limited use of this possibility and has yet to convict a defendant under Article 7(1)(h) on the basis of gender. In contrast, the Düsseldorf Higher Regional Court recently became the first court or tribunal to explicitly convict a person for gender persecution. The Sarah O. case has the potential to set an important precedent for the prosecution of this crime. Importantly, it may help to highlight the challenges of prosecuting gender persecution and to address them at the national and international level.

Reconceptualizing Corruption as an International Crime: A Review of International Law

The discourse surrounding corruption as an international crime is increasingly urgent, as it transcends national borders and contributes to economic crises, conflicts, and various crimes that threaten global security. Scholars such as Christensen (2017), Peters (2018), Davis (2018), and Rothe (2010) have linked corruption to human rights violations, revealing that states often struggle to address it effectively. This research seeks to explore how corruption can be redefined as an international crime and what legal accountability mechanisms exist for perpetrators within international law, while also examining the opportunities for the international community to recognize corruption as an international crime. The findings suggest that corruption crimes impacting security, human rights, and environmental integrity, particularly in contexts where states are unable or unwilling to act, should be classified as international crimes, necessitating a global commitment to amend the United Nations Convention Against Corruption (UNCAC) accordingly. Furthermore, the potential for universal jurisdiction over corruption is explored, whether through amending the 1998 Rome Statute or establishing an ad hoc international tribunal, although significant obstacles remain due to states’ commitments to their sovereignty and criminal jurisdiction.

Genosida Sebagai Pelanggaran Hak Asasi Manusia (HAM) Yang Berat

Deprivation of Human Rights using various criminal methods has been happening for a long time. Since then, many international regulations have set limits and prohibitions regarding war crimes up to genocide, including judicial bodies that are given responsibility for crimes that have been committed. By knowing the actions and bodies authorized to prosecute serious human rights violations, we can understand current changes in the existence of the crime of genocide. The aim of realizing international legal instruments is to fulfill the human rights of victims, the world community and perpetrators. The research method used is normative juridical. The research approach is through a statute approach, which examines problems using statutory regulations by analyzing relevant laws to be used as a legal basis, such as the Convention on the Prevention and Punishment of the Crime of Genocide in 1948, the Statute of the International Criminal Court in 1998 and the Law on Law Number 25 of 2000 concerning Human Rights Courts. The research results concluded that the crime of genocide is one of four serious human rights violations within the jurisdiction of the International Criminal Court. Genocide always involves two things, namely: objectively it refers to the act of extermination and subjectively the target of the action is a certain group. The International Criminal Court, in accordance with Article 34 of the 1998 Rome Statute, consists of four parts: The Presidency, the Chambers, the Offices of the Prosecutors and the Registry in carrying out its duties. The International Criminal Court will only carry out its functions if the National Court cannot carry out its functions properly, in this case the meaning is if the National Court does not want to try the perpetrator of the crime and unable.

Recognition of the Jurisdiction of the International Criminal Court as a Measure to Ensure the Application of International Humanitarian Law: Example of Armenia

This paper reviews the definition of international humanitarian law, as well as the application of international humanitarian law by the International Criminal Court. The powers and activities of the International Criminal Court are examined. The scope of possible application of the principles and provisions of international humanitarian law by the International Criminal Court, as well as the modalities of such application, is revealed. The article analyses changes in Armenian legislation after the ratification of the Rome Statute and focuses on the fact that after the ratification of the Rome Statute, which is a significant step forward for the security of Armenia, Armenia (Centre for Truth and Justice) requested the International Criminal Court Prosecutor to initiate a preliminary examination of the ongoing genocide committed by Azerbaijan’s Armed Forces against the ethnic Armenians within the territory of Armenia. Besides this, the analysis of the procedural position of the International Criminal Court Prosecutor in the system of international justice is carried out. The main tasks and fundamental role of the Prosecutor's office in the investigation or prosecution of international crimes are investigated. Keywords: International Criminal Court; International Humanitarian Law; Rome Statute; ratification; preliminary examination.

Impunity for International Law Violations in the Russia-Ukraine Conflict: Implications for Global Stability

The protracted conflict between Russia and Ukraine, initiated in 2014 and intensified by Russia's comprehensive military incursion in 2022, has elicited profound apprehensions regarding breaches of international legal standards. This article analyzes the ramifications of the conflict on global legal structures, with particular emphasis on violations of the United Nations Charter, the Rome Statute, and International Humanitarian Law (IHL). The examination underscores that the actions undertaken by Russia in Ukraine contravene essential tenets of international law, notably the ban on the use of force against the sovereignty of states and the imperative to safeguard civilians amidst armed conflict. The article contends that the military actions undertaken by Russia in its invasion constitute violations of the principles of state sovereignty and territorial integrity as outlined in the UN Charter, contravene the definitions of war crimes and aggression established by the Rome Statute, and fail to adhere to the mandates for civilian protection set forth by International Humanitarian Law. This article examines the complexities associated with prosecuting these violations, highlighting the constraints faced by international institutions such as the International Criminal Court (ICC) and the UN Security Council. The analysis highlights the necessity of accountability in maintaining the integrity of international law and averting future transgressions, stressing the wider consequences for global stability and the rule of law.

Pertanggungjawaban Pidana Pemimpin Negara Akibat Kejahatan HAM Berat dan Yurisdiksi International Criminal Court

The aim of this research is to understand the concept of handling carried out by the International Criminal Court, especially through the establishment of a Hybrid Court for serious human rights crimes committed by state leaders and also to understand the concept of accountability for state leaders who have immunity related to serious human rights crimes within the jurisdiction of the International Criminal Court. This research uses a normative juridical method where in the process it examines research from literature study materials and legal provisions, in this case the Rome Statute. Criminal liability of state leaders is a form of international legal instrument used to enforce accountability for international crimes committed by state leaders. International crime is something that has been happening for a long time. Various international crimes committed by state leaders have been in the spotlight of history because of the atrocities committed by the leaders of a state. This research will examine the responsibility of state leaders for serious human rights crimes committed by Liberian President Charles Taylor based on the jurisdiction of the International Criminal Court through the establishment of a hybrid court.

Іnternational and foreign practice of compensation for war crimes

The scientific article is dedicated to the study of international and foreign practices of compensation for war crimes. The article analyzes legal mechanisms and tools used for compensating victims of war crimes in various countries of Europe and the world. The main focus is on the practice of international courts, such as the International Criminal Court (ICC), as well as national judicial institutions that handle war crime cases. Specific cases and decisions that have influenced the development of law enforcement practices in this area are examined. One of the key aspects of the work is the analysis of international treaties and conventions that regulate compensation issues, including the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity, as well as the Rome Statute of the ICC. Various compensation models are considered, including monetary compensation, rehabilitation, and other forms of reparation. The article also explores the role of non-governmental organizations and international funds in the process of compensating war crime victims. The effectiveness of different approaches and mechanisms used to ensure justice and restore the rights of victims is analyzed. The work pays attention to the problems and challenges faced by law enforcement agencies when handling war crime cases, as well as the prospects for improving the international legal mechanism for protecting the rights of victims. The research is based on the analysis of specific cases, court decisions, and legal acts, allowing conclusions to be drawn about the current state and possible ways of developing the compensation system for war crimes. Thus, the article contributes to the scientific discussion on improving the mechanisms of legal protection for victims of war crimes and ensuring justice in international law.

Gender-based sexual violence during the international armed conflict on the territory of Ukraine: problem statement

The article highlights the problem of gender-based sexual violence during the international armed conflict on the territory of Ukraine. Based on the analysis of international documents, customary international law, and scientific sources, it is shown that sexual violence and gender-based violence are distinct concepts. However, in the context of Ukrainian judicial practice under Article 438 “Violation of the Laws and Customs of War” of the Criminal Code of Ukraine, gender-based violence is exclusively sexual in nature and is expressed mainly in the form of gender-based rape. The doctrinal approach is supported, according to which the signs of sexual and gender-based violence are: 1) an act (an actual act), 2) coercion (an act committed against the person’s will), 3) a cause (determined by gender), 4) consequences (causing one or more types of harm or suffering to a person). The author identifies the signs of rape related to armed conflict arising from the Rome Statute of the International Criminal Court, the Elements of Crimes of the International Criminal Court, and customary international law. The actus reus of rape is that the perpetrator has assaulted the body of a person by committing an act that resulted in penetration, even minor, of any part of the victim’s or perpetrator’s body with a sexual organ, or penetration of the victim’s anus or vagina with any object or any part of the body; the fact that rape is a component of war crimes is determined by the presence of a specific situation (coercion by military personnel). The mens rea of rape is the need to establish the perpetrator’s awareness of the encroachment on the human body by committing an act that resulted in penetration; the perpetrator’s awareness of the circumstances of the act (use of force or threat of force, use of coercion, use of a coercive environment, inability of the person to give consent expressing his or her true will), including the absence of the victim’s consent.

The Rome Statute Impact: Challenge of Upholding Human Rights in Indonesia’s Human Rights Court

This article examines the effect of enforcing gross human rights violations and the implications of Indonesia as a state that did not ratify the Rome Statute. This study is done by studying the legal basis of human rights courts in Indonesia. A doctrinal approach is used. The main legal materials used are the Human Right Court Law (2000) and human rights court decisions. The research findings indicate that the process of enforcing gross human rights violations requires integration between National Human Rights Commission as an investigator and the Attorney General's Office as an investigator. The substance of enforcing gross human rights violations is a formality because Indonesia, as a sovereign state, has the right to determine the model of enforcing gross human rights. However, in fact, there are still many gross human rights violations that cannot be resolved due to differences in perceptions of sufficient preliminary evidence. For this reason, reformulation of the Human Right Court Law (2000) is needed.

Protecting victims of international crimes: A reflection on the functional interpretation of the Statute of the International Criminal Court

This study identified essential factors concerning the safeguarding of victims of international crimes within the context of the functional interpretation of the Rome Statute. The study examined the principal worldwide legal frameworks governing the protection of victims of these crimes. The study employed hermeneutic, system-structural analysis, comparative legal, and other methods. The analysis results indicated that the legislation of Kazakhstan lacks clearly defined norms that relate to the responsibility of the state to victims, as well as their right to adequate reparation, including compensation and rehabilitation, as mandated by the UN Convention against Torture. Kazakhstan and China have not ratified the Rome Statute, largely due to political considerations. Kazakhstanʼs accession to the Rome Statute could lead to the harmonisation of national standards with international demands concerning the rule of law and the protection of human rights, as well as strengthen global efforts to counteract the evils that threaten peace and security. It was also found that the lack of clarity in the normative terminology and methods of interpretation of the Rome Statute, as well as conflicts between different objectives, led to the use of a functionalist approach by the court in interpreting the Statute. This weakens its basic function of protecting peopleʼs rights, violates the competences of the participating states and interferes with the principle of national sovereignty. The study addressed the need for victimological prevention of victims of international crimes, which should include improving the practice of treating victims, revising legislation, and developing new structures and services. It is also essential to provide information about the methods of abuse and the diversity of victims through various media formats

Environmental and legal aspects of the armed aggression of the Russian Federation against Ukraine

The article examines the environmental and legal aspects of the armed aggression of the Russian Federation against Ukraine. The problems of bringing the aggressor state to responsibility for ecocide are analyzed. Having found a legislative enshrinement in the national criminal law (Article 441 of the Criminal Code of Ukraine), ecocide has not been enshrined in international criminal law. It is not recognized as a crime either in the Rome Statute of the International Criminal Court or in any other international legal act. As of today, Russian crimes against the environment can be investigated by the International Criminal Court as war crimes. The author of the article supports the proposal regarding the need to include the crime of ecocide in the Rome Statute. The ecological and legal aspect of the formation of an international compensation mechanism is studied, the components of which are: 1) an international register of damages; 2) compensation commission (which will consider individual applications for compensation by the Russian Federation for losses from citizens, companies and the state); 3) compensation fund (which will accumulate funds to pay commission decisions, including at the expense of confiscated Russian assets). The mechanism of compensation for environmental damage caused as a result of the armed aggression of the Russian Federation against Ukraine is analyzed, and ways of its optimization are proposed. The future compensation mechanism should be based on the «ecosystem services approach», which will significantly increase the amount of environmental damage that the Russian Federation will pay to Ukraine. The international practice of compensation for environmental damage caused by the aggressor as a result of military actions and temporary occupation was studied and analyzed. The author emphasized the need to reform the state environmental monitoring system. Without reliable monitoring data, it is difficult to prove a causal relationship between the illegal actions of the aggressor state and the damage caused to the environment.

International and National Mechanisms Combating Ecosystems’ Damage and Environmental Crimes to Foster Sustainable Development

This article examines international and national mechanisms for combating crime against the environment. Arguments are presented to add the crime of ecocide into the Rome Statute of the International Criminal Court, as well as to create a special international human rights tribunal that can potentially hear cases related to ecocide. A number of bodies, programs, international networks, and transnational non-governmental non-profit organizations should be promoted to directly or indirectly aim at combating crime against the environment. At the same time, the necessity of adopting a comprehensive approach to the international cooperation among these institutions and law enforcement agencies is warranted, given contemporary challenges and threats, in particular with Interpol, a robust institutional framework to combating environmental crime. The importance of establishing universal national and interstate mechanisms for the restoring and preserving ecosystems to combat environmental crimes effectively is underscored. These international regulations should be recognized through relevant resolutions of the UN General Assembly and other international documents. A conceptual inference drawn is the imperative for comprehensive national measures to combat ecocide, including the development of cohesive state policies, the establishment of an effective environmental monitoring system, and the documentation of incurred damages.

Italy and International Criminal Justice: Mapping the Present and Charting the Path Ahead

Abstract The present article investigates Italy’s posture on international criminal justice and identifies gaps and obstacles whose overcoming is essential to make the country effectively contribute to its efficient functioning. To this end, firstly, the Italian Government’s attitude towards international criminal justice institutions is surveyed. Secondly, domestic legislation and case law on international crimes are carefully analysed. Thirdly, the public perception of international crimes in Italy is critically assessed. The author finds that a major legislative reform is urgently needed and cannot be postponed any longer, so as to remove any ambiguity about the Italian Government’s commitment to ensuring accountability for all international crimes listed in the Rome Statute of the International Criminal Court. She also advises that such reform should be complemented with the assumption of additional international obligations bringing Italy at the forefront of the supporters of the Rome Statute system.

Giving Meaning to Consent at the International Criminal Court and Beyond: A (Qualified) Defence of Consent

ABSTRACT This article examines the concept of consent in the context of rape and sexual violence within the framework of the International Criminal Court (ICC). Lack of consent is not required to be proven in relation to charges of rape in the Rome Statute, an aspect praised by feminist legal scholar Catharine MacKinnon. A significant and contested feature of MacKinnon’s theorisation of rape is her argument that such a standard should also serve as a model for domestic laws. However, it is not clear that the ICC’s current framework regarding consent and the means to address sexual violence is as robust as MacKinnon suggests. Importantly, our analysis of the international experience takes place against a backdrop where in many domestic jurisdictions consent remains firmly entrenched in law reform efforts to address the ubiquity of sexual violence. Drawing primarily on recent law reform examples from Australia, where the trend has been toward affirmative models of consent, we consider how consent is positioned within them. We argue that consent still has a place in measures in both domestic and international jurisdictions aimed at addressing the structural inequalities and power dynamics underpinning sexual violence, MacKinnon’s privileging of the measures in the international jurisdiction notwithstanding.

Withdrawal from the Rome Statute

Abstract This article examines the implications of a state party’s withdrawal from the Rome Statute, with a particular focus on its impact on the continuity of International Criminal Court (ICC) proceedings in an ongoing situation, especially during the preliminary examination phase. It begins by scrutinizing three distinct ways of addressing the implications of a state party withdrawal employed by the ICC, drawing insights from key decisions in the Burundi and Philippines situations, as well as scholarly viewpoints on the issue. It then analyses the legal consequences of withdrawal on ICC proceedings, both in situations where the investigation is initiated by the Office of the Prosecutor and those triggered by state party referral. This article argues that the authorization of an investigation in the Philippines situation may have exceeded the bounds set by the Rome Statute.