Rome Statute Research Articles

To the issue of qualification of sexual violence in the conditions of international armed conflict

The article examines the peculiarities of the qualification of sexual violence as war crimes, using the norms of international and national law. The author states that the study of sexual violence, its consequences for society, as well as taking measures toprevent it through criminal legal means remains relevant for almost all countries of the world. The issues of qualification acquire special importance during investigation of sexual violence acts took place in the context of an armed conflict.It is proved that the issues of qualification of sexual violence committed during an armed conflict should be investigated taking with the provisions of the Rome Statute and Article 438 of the Criminal Code of Ukraine. Such an approach will provide thepotential possibility for blaming guilty persons to international criminal responsibility.The lion’s share of this article is devoted to the defining the common and mandatory signs of composition for all crimes related to sexual violence: the objective elements (actus reus) and mental elements (mens rea). The author takes into account thegeneral rules of qualification of crimes and clarifies the peculiarities of the qualification algorithm for the combatants who committed sexual violence against the civilian population during the armed conflict.The author comes to the conclusion that sexual violence committed by a combatant in the conditions of an armed conflict is covered by the concept of “other violations of the laws and customs of war, which are provided for by international treaties, thebinding consent of which was given by the Verkhovna Rada of Ukraine”. Such actions must be qualified under Part 1 and/or Part 2 of Art. 438 of the Criminal Code of Ukraine and norms of international humanitarian law according to the general qualificationrules of criminal offenses.

Starvation at the International Criminal Court: Reflections on the Available Options for the Prosecution of the Crime of Starvation

Abstract This article investigates whether crimes of starvation not committed as a method of warfare could be prosecuted by the International Criminal Court. It assesses whether it is possible to use crimes already typified in the articles of the Rome Statute to prosecute all those cases of starvation that cannot be prosecuted as war crimes because they were committed neither during an armed conflict nor in association with an armed conflict. More specifically, it addresses the question of whether nowadays peacetime starvation could be prosecuted by the International Criminal Court as an act of genocide, an act of persecution, an act of extermination or as an “inhumane act”.

Zbrojna napaść Rosji na Ukrainę a kwestia odpowiedzialności karnej jednostki

Zbrojna napaść Rosji na Ukrainę zapoczątkowała dyskusję o możliwości postawienia w stan oskarżenia osób odpowiedzialnych za popełnienie zbrodni międzynarodowych w tym konflikcie. Celem artykułu jest analiza przepisów Rzymskiego Statutu MTK pod kątem ewentualnego ich oskarżenia. W rozważaniach udzielono odpowiedzi na pytanie, jakie czyny mogłyby zostać przypisane żołnierzom rosyjskim biorącym udział w inwazji na Ukrainę. Przedstawiono także możliwość pociągnięcia do odpowiedzialności karnej prezydenta Federacji Rosyjskiej i zwrócono uwagę, że pełnienie funkcji głowy państwa nie wyłącza jego indywidualnej odpowiedzialności. Zauważono też, że działania wojsk rosyjskich w Ukrainie są bardzo zbliżone do metod, jakimi posługiwali się serbscy żołnierze w czasie wojny w Bośni i Hercegowinie.

The Compensation by the international criminal judiciary

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

Accessory After the Fact at the International Criminal Court?

Abstract It has generally been understood that international criminal law recognizes ex post facto aiding and abetting as a mode of liability but not the standalone offence commonly known, in many states, as accessory after the fact. However, as this article reveals, the authentic Spanish text of Article 25(3)(c) of the Rome Statute of the International Criminal Court (‘ICC Statute’) includes the word ‘encubridor’ which — as a comparative analysis of the Criminal Codes of Spanish-speaking countries confirms — is the Spanish language legal equivalent of a person that is an accessory after the fact. Yet, nothing in the authentic English text of Article 25(3)(c) — the version that most of the international criminal law scholarship and the International Criminal Court (‘ICC’) have focused on — alludes to this. To resolve this substantive discrepancy, Article 25(3)(c) is considered across all authentic languages (Arabic, Chinese, English, French, Russian, and Spanish) and in light of Articles 31–33 of the 1969 Vienna Convention on the Law of Treaties in a manner consistent with the rights of the accused. This article concludes that the mentioned discrepancy is unique to Article 25(3)(c) in the authentic Spanish language, most likely the result of an error, and that the concept of ‘accessory after the fact’ should not be applied at the ICC. That Article 25(3), a provision that has featured in so many ICC decisions and judgments and spawned so much academic writing, has contained such a glaring and seemingly undetected error for over 24 years ought to compel commentators, academics, and practitioners to look beyond the working languages of the ICC — English and French — when analysing, interpreting, and applying the ICC Statute.

Benjamin Ferencz and the Treatment of Victims in International Criminal Law: Mapping Out Lex Lata and Lex Ferenda (Ferencza?) in an Emerging Field

Abstract This piece examines a hitherto underexplored legal history chapter in international criminal law pioneer Benjamin Ferencz’s career, and, based on that, offers fixes for problems in current atrocity victim law. Known primarily for his Nuremberg prosecutorial exploits, Ferencz actually spent most of his career innovatively seeking reparations for Holocaust survivors and then later, with the benefit of such experience, sought to ensure coverage of victims in the International Criminal Court’s Rome Statute. After examining this history, the article maps Ferencz’s trailblazing practices onto the atrocity victim lex lata. It then considers that law’s deficits, including front-end and back-end problems (i.e., at the investigation and early release application phases), International Criminal Court retributive versus reparative mission dissonance, inadequate funding, hindrances to proactive victim participation and victim exclusion in prosecuting aggression. For each problem, Ferencz’s history offers viable solutions, such as victim-oriented investigations, bifurcated retribution/restitution processes, bilateral treaty funding, transnational victim networking, and charging illegal use of force as crimes against humanity. As a result, perhaps such proposed modifications of the framework should not be called lex ferenda, but rather ‘lex ferencza.’

International Criminal Court Jurisdiction Against Human Rights Violations by Philippine President After Withdrawal from Rome Statute

Rodrigo Duterte who has ordered the police to execute drug addicts who do not want to be arrested. However, the assailant was still shot despite surrendering to arrest, the police on behalf of the anti-drug unit went to people's homes and did so because of the policy of "who gets killed, the police get paid". The crime that has been committed by Rodrigo Duterte under ICC jurisdiction is giving orders. to the police and the public to carry out extrajudicial killings of individuals involved in narcotics and to protect those who carry out their orders, so that Rodrigo Duterte is judged guilty and responsible in accordance with Article 25 paragraph 3 (b), (c), (d) the Rome Statute Crimes against humanity are among the criminal jurisdictions of the ICC. Although the Philippines withdrew from the Rome Statute, it did not prevent the International Criminal Court (ICC) from reviewing the case involving Philippine President Rodrigo Duterte. The Rome Statute provides for withdrawals, in particular article 127 , paragraphs (1) and (2) of the 1998 Rome Statute.

Deepening apartheid: The political geography of colonizing Israel/Palestine

The paper analyzes the regime in Israel/Palestine using a political geographical perspective. It demonstrates how a combination of colonial, national, capitalist and liberal forces have put in train a process of “deepening apartheid” in the entire territory controlled by Israel—between River and Sea. This undeclared regime has been established to guard the 'achievements' of settler colonial Judaization of the land and the domination of the Jewish minority. As described by the Rome Statute, it has become an institutionalized regime of systematic oppression and domination by one group over others, with the intention of maintaining that regime. Hence the political geographical analysis shows clearly that the wide description in academic and international circles of Israel as “Jewish and democratic,” is based on a denial of the clear racialized hierarchy of civil statuses. This setting enhances Jewish supremacy (using different methods) it in all regions, while Palestinians are fragmented into lower rungs on the ethnic hierarchy—de facto and de jure—thereby contradicting the tenets of democratic civil equality. Theoretically, the paper draws on the links between settler colonial expansion, the rise of ethnocracy, partial liberalization under global capitalism, and the making of apartheid. It shows that historically Jewish colonization of Palestine—the underlying logic of the regime—has advanced in six main historical-geographical stages, encountering persistent, and at times violent, Palestinian resistance. The paper then analyzes in more detail the emergence of one regime between River and Sea, in which the state uses military, spatial, economic, and legal powers, as well as geopolitical maneuvering (particularly US support) to oppress Palestinians, while promoting democratic rights and economic development among Jews. This has enabled Israel to integrate and “whiten” Mizrahi and other Jewish groups into mainstream Zionism. Rivaling Palestinian political projects have been fragmented, ghettoized, attacked violently, and severely weakened. The paper shows how Jewish colonization, on both sides of the Green Line (which has also included some tactical withdrawals), has led to the establishment of four hierarchical types of citizenship, governed as “separate and unequal”. The relations between the groups resemble the racialized categories used in Apartheid South Africa and include (a) “White”—Jewish Israelis—with full citizenship rights; (b) “Colored”—Palestinian Arabs with Israeli citizenship with partial rights; (c) “Black”—Palestinians under occupation lacking citizenship or political rights; (d) “Gray”—an emerging group, consisting of non-citizen migrants and asylum seekers.

Medical apartheid in Palestine

ABSTRACT The International Convention on the Suppression and Punishment of the Crime of Apartheid (1974) and Article 7 of the Rome Statute of the International Criminal Court (1998) recognise apartheid as a crime against humanity, characterised by a practice of systematic oppression and violations of human rights with the intent of one racial group to maintain domination over another. The term ‘medical apartheid’, although without a formal definition in international human rights law, has been used similarly to refer to situations of pervasive segregation and discrimination in health care, based upon race, and characterised by stark inequality in health care accessibility, availability, acceptability, and quality. This paper, using a combination of literature review; data on attacks on Palestinian health facilities, workers, and transport; and information from Palestinian and Israeli government authorities on referrals to specialised health care services, examines the ways in which Israeli policies and practices can be understood to constitute a form of ‘medical apartheid’ that deprives Arab residents of the Palestinian territories the full realisation of their right to health.

The International Criminal Court at 25

On July 17, 2023, the International Criminal Court (ICC) will mark the 25th anniversary of the adoption of the Rome Statute, its founding treaty. The Statute constituted a remarkable transfer of authority from sovereign states to an international institution: The ICC is the first permanent court charged with prosecuting individuals, including senior political and military leaders, for atrocity crimes. Per the Statute, the ICC was designed with the goals of ending impunity for these crimes, contributing to their prevention, and delivering justice to victims. To what extent has the ICC achieved these and other goals in the Rome Statute? The ICC’s upcoming anniversary provides an opportune moment to examine this question and take stock of the Court’s performance. This special issue of the Journal of Human Rights addresses this question from an empirical perspective, focusing on two themes: (1) the ICC’s relations with states, which critically condition its operations and impact, (2) the Court’s effectiveness in achieving the goals outlined in the Rome Statute, specifically ending impunity and mitigating violence.

International Environmental Protection through International Criminal Law – Ecocide as a Crime in the Rome Statute

International Environmental Protection through International Criminal Law – Ecocide as a Crime in the Rome Statute

The Possible Restraint Imposed on the Activities of the International Criminal Court by Article 98 Agreements, Extradition Treaties, and Status of Forces Agreements (SOFAs): An Analysis of their Consistency with the Rome Statute and the Related Issues of the Law of Treaties (III)

The Possible Restraint Imposed on the Activities of the International Criminal Court by Article 98 Agreements, Extradition Treaties, and Status of Forces Agreements (SOFAs): An Analysis of their Consistency with the Rome Statute and the Related Issues of the Law of Treaties (III)

The Nexus between Justice and Victim Involvement: A Comprehensive Analysis of the ICC’s Approach

This paper examines the concept of Victim Participation in the International Criminal Court (ICC) and its impact on international justice. Victim Participation, enshrined in the Rome Statute, grants victims a role in ICC proceedings, departing from earlier international tribunals. The paper discusses the rise of Victim Rights globally and its challenges, including a growing number of participation applications. It addresses concerns about balancing victim claims, accused's fair trial rights, and evidence protection. While emphasizing the importance of Victim Participation, the paper underscores the vital role of Victim Participation in the ICC, providing a platform for victims' voices to be heard and contributing to the Court's credibility and success and for a more systematic approach to ensure fairness and maintain the ICC's credibility

Relentless Atrocities: the Persecution of Hazaras

As one of the main ethnic groups in Afghanistan, Hazaras are Farsi-speaking and mostly Shi’a Muslims in a predominantly Sunni Muslim country. They are also distinguishable by their Asiatic appearance. Throughout Afghanistan’s history, Hazaras have suffered considerably under different regimes, enduring recurring massacres, enslavement, and forced displacement. Despite Afghanistan’s accession to the Rome Statute in 2003, the plight of Hazaras has not improved. Indeed, the assaults on Hazaras have only intensified in recent years, impacting virtually every aspect of their lives. This article argues that the recent and ongoing attacks against Hazaras constitute a crime against humanity. In particular, I show, element by element, that there is a reasonable basis to believe that the assaults on Hazaras amount to persecution based on ethnic and religious grounds pursuant to article 7(1)(h) of the Rome Statute. Accordingly, the International Criminal Court and the global community must take urgent actions to investigate the relentless atrocities against Hazaras and to hold the perpetrators accountable. Failure to do so, as warned by the U.S. Holocaust Memorial Museum, may lead to a full-blown genocide.

Ecocide, the Anthropocene, and the International Criminal Court

AbstractThe recent proposal by the Independent Expert Panel of the Stop Ecocide initiative to include the crime of ecocide in the International Criminal Court's Rome Statute has raised expectations for preventing and remedying severe environmental harm through international prosecution. As alluring as this image is, we argue that ecocide prosecutions may be the most difficult, perhaps even impossible, in precisely the cases that the ICC would need to be concerned with; namely, the gravest global incidents of environmental harm, including those associated with planetary climate change. We explore a series of questions about the panel's formulation of ecocide that resonate with longer debates around criminalizing environmental harm but take on new dimensions amid the Anthropocene and after twenty years of ICC trials. Ecocide must contend with the hard lessons learned concerning the ICC's limitations in realizing justice in a fraught international political context and also with fundamental challenges to knowledge and legitimacy arising from the uncertainty and dynamic socioenvironmental context of the Anthropocene. The proposed amendment, if adopted, risks ineffective prosecutions or even perverse outcomes for the environment itself. This risk, however, may characterize any effort to prosecute ecocide internationally in the Anthropocene unless the terms of international criminal law are fundamentally rethought.

Environmental Harm as a Crime under the Rome Statute

Environmental Harm as a Crime under the Rome Statute

The Possible Restraint Imposed on the Activities of the International Criminal Court by Article 98 Agreements, Extradition Treaties, and Status of Forces Agreements (SOFAs): An Analysis of their Consistency with the Rome Statute and the Related Issues of the Law of Treaties (II)

The Possible Restraint Imposed on the Activities of the International Criminal Court by Article 98 Agreements, Extradition Treaties, and Status of Forces Agreements (SOFAs): An Analysis of their Consistency with the Rome Statute and the Related Issues of the Law of Treaties (II)

The Possible Restraint Imposed on the Activities of the International Criminal Court by Article 98 Agreements, Extradition Treaties, and Status of Forces Agreements (SOFAs): An Analysis of their Consistency with the Rome Statute and the Related Issues of the Law of Treaties (I)

The Possible Restraint Imposed on the Activities of the International Criminal Court by Article 98 Agreements, Extradition Treaties, and Status of Forces Agreements (SOFAs): An Analysis of their Consistency with the Rome Statute and the Related Issues of the Law of Treaties (I)

A Study on Nomenclature Debate on the ‘Use of Force,’ ‘Armed Attack’ and ‘Aggression’ as the Right to Self Defence

International Law on Armed Conflict lays down specific guidelines on the conduct of the States, the parties who are signatories and conform to the international comity. The paper highlights the implications of the preamble of the United Nations Charter, which was introduced by the comity of international players in the Second world war to mitigate any possibility of another war. The state signatories to the charter not only aspired to restore peace but also to bring about standard norms of the conduct of civilized states through this Charter. The present paper discusses the juxtaposition of specific terminologies, which are considered one of the most important provisions of the UN Charter. The paper attempts to study Article 2(4), which prohibits the use of force by the member states. However, the juxtaposition of Article 51 along with Chapter VIII of the Chapter is also discussed, giving regard to the peculiarity of the expression ‘armed attack and ‘aggression’ in light of states’ right to self-defence. The paper throws light upon the negotiating history of these Articles along with other important documents like UN General Assembly Resolution 3314 and the Statute of Rome of the International Criminal Court, which has defined and illustratively underlined the meaning and context of the term ‘aggression.’ The jurisprudential evolution is also brought astute by the pronouncement of the International Court of Justice. The paper deliberates upon the interpretational journey of the text and the context of the provisions of the Charter and other documents and attempts to read between the lines of these terminologies to understand the present-day relevance and meaning of these provisions akin to the ongoing international armed conflicts in the world.

Nothing changed after Rome: Continuity in state support for the International Criminal Court

Despite significant structural and domestic changes, states’ attitudes toward the International Criminal Court (ICC) have not fundamentally changed since 1998. In her 2021 article, García Iommi identified four levels of support for the adoption of the Rome Statute—Entrepreneurs, Supporters, Accepting States, and Detractors—and argued that a combination of identity and interests explained what category states fell into. Building on this argument, and using a combination of statistical methods and case studies, this article establishes that the aforementioned categories of support constitute a good predictor of support for the ICC today and explains that the reason is that the underlying conditions have not changed. Accordingly, it is unsurprising that countries that endorsed the adoption of the Rome Statute but never championed it (Accepting States) display lower levels of support for the Court than Entrepreneurs and Supporters. This suggests that the difficulties the ICC has faced in Africa, where almost a third of Accepting States are located, could also take place in other regions with Accepting States.