Substantive International Criminal Law Research Articles

The Problem of ‘Uncertainty’ in International Criminal Law and the Common Law ‘Method’

Abstract International criminal law has evolved from abstract ideas of an international criminal jurisdiction in the early twentieth century to encompass a comprehensive set of tribunals, rules, and methods. This article explores the contribution of the common law to the development of international criminal law, drawing on two key historical episodes – the Nuremberg and Tokyo tribunals, and the ad hoc International Criminal Tribunal for the former Yugoslavia (ICTY) and International Criminal Tribunal for Rwanda (ICTR) – to consider the common law’s historic influence over, and relationship to, uncertainty within the system of international criminal law. First, the article highlights how British jurists framed the normative uncertainty vis-à-vis the idea of international criminal justice in their contributions to this Yearbook. Second, it examines the characteristics shared between common law and international criminal law, with a view to appraising the potential relationship of both ‘systems’. Finally, it interrogates the differing treatments of the common law throughout the development of substantive international criminal law over time, considering how judges utilized the common law as they navigated the complex dialectic between ‘statutory’ and ‘judge-made’ law.

Law Development by the International Criminal Court as a Way to Enhance the Protection of Minorities - The Case for Intersectional Consideration of Mass Atrocities

Mass atrocities almost invariably involve the targeting of racial, ethnic, religious and/or political groups. Other groups, such as homosexuals, have also been vulnerable to targeted destruction. Both experience and international case law demonstrate that atrocity crimes have mostly been inflicted on minorities within minorities. With individuals being targeted on several personal grounds or due to overlapping identities (for example, women and girls belonging to ethnic or religious minorities) there is a strong case for both scholarship and international criminal judiciary to develop an expertise on intersectional discrimination in the context of international crimes that implicate discriminatory intent of a perpetrator. Yet, the International Criminal Court (ICC or Court) has tended to consider atrocities motivated by discrimination on isolated discriminatory grounds and independently from each other. As a prescriptive contribution, the present article challenges this trend by arguing that in more complex criminal cases the protected characteristics need to be considered together with, and not separately from, one another, in order to capture the multi-faceted experiences of mass abuses. Underlying the treatment of the subject matter are thus two basic questions: first, given a full respect for the principle of legality (nullum crimen sine lege), what are the possible avenues for international criminal adjudication to recognize intersectionality so as to overcome conceptual flaws and limitations of single-issue analysis of discrimination in cases involving core international crimes against minorities? For example, can Article 21(3) of the Rome Statute on the interpretation and application of substantive international criminal law in light of international human rights standards serve as a viable tool for the Court to evolve its jurisprudence on this particular issue? Second, how and to what extent should the Court take intersectionality into consideration in the formulation of charges; identification and interpretation of applicable law; determination of criminal sentence; ordering adequate remedies (reparations) for victims; and in considering such aspects as the gravity assessment, or the contextualisation of crimes? Answering these questions, the article shows that by applying, interpreting and, when need be, developing international criminal law in a way that utilizes intersectionality the ICC can make in these areas important jurisprudential contributions with far-reaching socio-legal implications.

Law Development by the International Criminal Court as a Way to Enhance the Protection of Minorities—the Case for Intersectional Consideration of Mass Atrocities

Abstract Mass atrocities almost invariably involve the targeting of racial, ethnic, religious and/or political groups. Other groups, such as homosexuals, have also been vulnerable to targeted destruction. Both experience and international case law demonstrate that atrocity crimes have mostly been inflicted on minorities within minorities. With individuals being targeted on several personal grounds or due to overlapping identities (for example, women and girls belonging to ethnic or religious minorities) there is a strong case for both scholarship and international criminal judiciary to develop an expertise on intersectional discrimination in the context of international crimes that implicate discriminatory intent of a perpetrator. Yet, the International Criminal Court (ICC or Court) has tended to consider atrocities motivated by discrimination on isolated discriminatory grounds and independently from each other. As a prescriptive contribution, the present article challenges this trend by arguing that in more complex criminal cases the protected characteristics need to be considered together with, and not separately from, one another, in order to capture the multi-faceted experiences of mass abuses. Underlying the treatment of the subject matter are thus two basic questions: first, given a full respect for the principle of legality (nullum crimen sine lege), what are the possible avenues for international criminal adjudication to recognize intersectionality so as to overcome conceptual flaws and limitations of single-issue analysis of discrimination in cases involving core international crimes against minorities? For example, can Article 21(3) of the Rome Statute on the interpretation and application of substantive international criminal law in light of international human rights standards serve as a viable tool for the Court to evolve its jurisprudence on this particular issue? Second, how and to what extent should the Court take intersectionality into consideration in the formulation of charges; identification and interpretation of applicable law; determination of criminal sentence; ordering adequate remedies (reparations) for victims; and in considering such aspects as the gravity assessment, or the contextualisation of crimes? Answering these questions, the article shows that by applying, interpreting and, when need be, developing international criminal law in a way that utilizes intersectionality the ICC can make in these areas important jurisprudential contributions with far-reaching socio-legal implications.

Targeted Groups, Rape, and Dolus Eventualis: Assessing the ECCC’s Contributions to Substantive International Criminal Law

This article discusses a number of substantive law developments at the Extraordinary Chambers in the Courts of Cambodia (ECCC) after the issuance of the trial judgment in Case 002/02 against Nuon Chea and Khieu Samphan. It focuses on three themes emblematic of the Khmer Rouge era’s unique set of facts: the identification of targeted groups, male victims of rape in the context of forced marriage, and the mens rea standard of indirect intent or dolus eventualis. These themes are distilled from the most pertinent jurisprudential developments regarding a number of specific crimes and a mode of liability: persecution on political grounds, genocide, other inhumane acts through conduct characterised as rape in the context of forced marriage, extermination, and joint criminal enterprise. This article posits that these substantive law developments have an important place in international criminal law’s corpus as a rare steppingstone between the post-World War II trials and the modern-day international criminal courts and tribunals.

Sexual and Gender-based Violence in International Criminal Law: A Feminist Assessment of the Bemba Case

In March 2016, the International Criminal Court (icc) rendered a guilty verdict against Jean-Pierre Bemba, ex-president of the Democratic Republic of Congo, for his involvement in operations in the Central African Republic from 2002 to 2004. He was found guilty in his capacity as military commander of crimes against humanity and war crimes. The decision is the first by the icc to address sexual violence as a weapon of war and in the context of command responsibility. This article assesses the Bemba decision from a feminist perspective. Key normative developments have occurred in the substantive international criminal law surrounding sexual violence, and the guilty verdict against Jean-Pierre Bemba represents an effective implementation of international criminal law. However, in light of major feminist concerns that arise in international law on sexual violence, the encouraging developments in the judgement occur mostly at the implementation level, leaving much to be done in terms of gender conceptualization and norm-setting.

The Tribunals and the Renaissance of International Criminal Law: Three Themes

We are delighted to participate in this symposium on the legacy of the International Criminal Tribunals for the Former Yugoslavia and for Rwanda (Tribunals; respectively, ICTY and ICTR). We have been asked to offer reflections on the Tribunals’ impact on substantive international criminal law (ICL)—in particular, the definitions of crimes and the modes of liability. Given the enormity of the topic, we can offer only a cursory and impressionist sketch of the terrain, and draw attention to a few intriguing features along the way. We will not attempt to survey the Tribunals’ jurisprudence or the related academic literature. Instead, our aim is simply to highlight three themes underlying the Tribunals’ elaboration of substantive legal standards. For the nonspecialist, this sketch may provide a helpful overview of the evolution of ICL. For the specialist, this sketch may bring into slightly sharper relief some underlying patterns in the Tribunals’ work. We will also offer some broader thoughts about the Tribunals in the overall arc of ICL, and how their structure and priorities have left a lasting, distinctive imprimatur on ICL.

Christoph Safferling, in cooperation with Lars Bungener, Hilde Farthofer and Alena Hartwig, International Criminal Procedure

While substantive international criminal law has experienced steady early development, the study of international criminal procedure has been slower to emerge. Christoph Safferling has been one of the forerunners in the field. His first book, Towards an International Criminal Procedure,1 was one of the earliest contributions to analysing the rules of procedure in international criminal trials. Safferling’s new volume, International Criminal Procedure, aims to examine ‘how international criminal law has been executed’.2 At over 600 pages, this is a welcome addition to the libraries of students, scholars and practitioners. International Criminal Procedure focuses on the International Criminal Court’s procedural regime, backed by an examination of procedure at the ad hoc courts and tribunals. This book is in 10 sections. Preliminary chapters address the theoretical background, before moving into the practical realities of an international criminal trial. Safferling and his contributors address issues including the participants and all the stages of the trial process, as well as a chapter on contempt of court processes ‘as a specific safeguard for the fairness of the proceedings’.3

Tangling Human Rights and International Criminal Law: The Practice of International Tribunals and the Call for Rationalized Legal Pluralism

International criminal tribunals have often resorted to human rights law in order to ground their rulings. Acknowledging that international criminal law results from the combination of human rights law, international humanitarian law and national criminal laws, this article reviews selected case-law and argues that an emotionally driven application of human rights law has been deployed in respect of domains exclusively pertaining to criminal law. While a comprehensive approach to law is to be praised, it is submitted that international criminal law has undergone controversial developments due to resorting to human rights law in a somewhat erratic manner which overlooks the differences, and sometimes the opposition, between the telos of both legal areas, often imperilling the principles of legality and individual culpability as unique foundational rationales of international criminal law. Challenging the methodology adopted by international tribunals and its consequences on substantive international criminal law, the article attempts to set forth the theoretical framework that should underpin the appeal to human rights law in international criminal judgments. It further proposes “analogy” and “complementarity” as analytical devices able to guide an interaction between international criminal law and human rights law that assists international criminal law in moving towards rationalized hybridity as opposed to “wild” fragmentation, political manipulation, selectivity and the discreditation of international criminal justice. Concluding, the practice of the International Criminal Court (ICC) will be briefly assessed through the lens of the theoretical framework proposed.

The Impact of Complementarity on National Implementation of Substantive International Criminal Law

The Impact of Complementarity on National Implementation of Substantive International Criminal Law

The Impact of Complementarity on National Implementation of Substantive International Criminal Law

The Impact of Complementarity on National Implementation of Substantive International Criminal Law