International Criminal Justice System Research Articles

Is International Criminal Law Ready to Accommodate Online Harm?

Abstract New technologies have the potential to both advance accountability for international crimes and to aid in their perpetration. Most of the existing literature to date focuses on the former, such as how digital evidence can be used in international criminal law (ICL) proceedings, or in the case of the latter, has taken a mainly rights-based approach (such as how technology can infringe upon rights to privacy or freedom of expression). This article answers the understudied question of how technology can serve as the vehicle by which certain international crimes are committed or lead to new offences, and how current ICL frameworks may be able to accommodate these ‘online harms’ to ensure that the law recognizes the full scope of harms caused to victims, who currently may not be able to access redress through the international criminal justice system. It identifies three examples of online harm that have a foreseeable nexus to the perpetration of international crimes, including hate speech and disinformation, sharing footage of crimes to the internet, and online sexual violence. The article evaluates the online harms alongside similar harms that have been encompassed by core ICL crimes, including genocide, crimes against humanity, and war crimes, to assess how online harms might fit into ICL frameworks (e.g. as an aggravating factor at sentencing, a new mode of commission of an existing crime, or a new crime). It concludes that some types of online harm may be more feasible to account for than others, and identifies where the existing ICL architecture falls short, which is important for providing a basis for future research as to how to best include novel online harms under ICL. Finally, the article emphasizes that as technology will only continue to develop and serve as a vehicle for an increasing array of harms, finding ways to account for online harm and bring redress to victims should be an issue at the forefront of ICL.

Prinudna trudnoća u međunarodnom krivičnom pravu

The main purpose of this paper is to examine the crime of forced pregnancy within the framework of the International Criminal Law (ICL). The author notes that acts of sexual violence, including forced pregnancy, have long been neglected in the system of international criminal justice. The crime of forced pregnancy has particularly been one of the most controversial issues during the negotiations regarding the text of the Rome Statute of the International Criminal Court (ICC). Delegations from several states that prohibit abortion were concerned that the adoption of the crime will expose their nationals to the criminal prosecution for forced pregnancy. A solution was a compromise which moved the crime of forced pregnancy away from the original concept of its proponents - an emphasis of the crime, as it stands in the Rome Statute, is not on the denial of the abortion for women which have been forcibly made pregnant, but rather on the (physical) confinement of such women. Also, the result is a definition that is too complex to be of significant practical value, a demonstration of which is the fact that the ICC has just recently made its first judgement regarding the crime of forced pregnancy, even though this crime has been in the Rome Statute for more than twenty years. Having that in mind, the author argues that the crime of forced pregnancy is a classic example of the "overextension" of the ICL. Namely, the ICC should be responsible for prosecuting only the most serious international crimes which are of concern for the international community. Clearly, as it has been demonstrated in the Rome Conference, various states have very different opinions on this issue. Besides these topics, the author has also pointed out that the crime of forced pregnancy, within a framework of crimes against humanity and war crimes, is a distinct crime in relation to the crime of genocide. The main difference between those two crimes is in their material element.

The Complementarity Principle: Balancing State Sovereignty and the Prosecution of International Crimes in Africa

This article poses a question as to whether the complementarity principle provided under Article 17 of the Rome Statute provides appropriate tools to balance the rights of state sovereignty with their commitment to an independent international criminal justice system. In all eight situations that the ICC is currently investigating, questions have arisen about whether the quest for justice and accountability for the most heinous crimes of international concern should potentially limit states sovereignty. The purpose of this article is to evaluate the balance between state sovereignty and the International Criminal Court as far as the application of the complementarity principle is concerned, as well as to expound on the position of international law and domestic laws on the immunity of the heads of state in Africa. However, given that, under the Rome Statute, states have the latitude to try these same offences, it may be necessary to investigate crimes in a way that they could do so without necessarily compromising international criminal justice processes. This paper makes a critical discussion on whether the complementarity regime has catered for regional bodies motivated by the AU’s recent anti-ICC declarations and the subsequent establishment of the Africa Criminal Court to complement the national courts of its Member States in prosecuting crimes under the jurisdiction of the ICC. The research aims to critically reflect on the balance between the ICC and the sovereign state. The article has revealed that the implementation of the principle of complementarity poses challenges in implementation and interpretation and thus remains a less effective means of putting an end to international crimes. Furthermore, this paper urges the need for the principle of complementarity to be rethought in terms of clarifying its content and scope.

Special International Tribunal on the investigation of the russian aggression against Ukraine: legal analysis, international jurisdiction and challenges

The article is one of the first attempts to provide a comprehensive study of the theoretical and practical foundations for the scientific idea of establishing a Special International Tribunal on investigation of the russian aggression against Ukraine and determining its place in the system of international criminal justice.
 The problematic issues of establishing a Special International Tribunal to investigate the russian aggression against Ukraine have been studied. The organisational and legal efforts of the Council of Europe, NATO, OSCE and the EU in creating an international mechanism to bring the top political and military leadership of russia to justice for its aggression against Ukraine have been revealed. The attention is focused on the international legal analysis of the models for the future special tribunal, as well as its jurisdiction. The main challenges for the international community in establishing a special international tribunal to investigate the russian aggression against Ukraine are identified.
 It has been noted that the establishment of a Special International Tribunal to investigate the crime of russian aggression against Ukraine should become an effective mechanism for investigating and documenting violations of International Human Rights Law and International Humanitarian Law committed by russia on the territory of Ukraine with the identification of those responsible; compensation for victims and restoration of justice for the Ukrainian people from russia's full-scale armed attack; deterrence of aggressive and destabilising actions of the russian federation, which violates the sovereignty and territorial integrity of Ukraine. At the same time, the establishment of a Special Tribunal will have an impact on preventing the recurrence of such crimes, impunity and setting a precedent for similar situations in the future; it will also play an important role in strengthening international law and norms, especially in the context of armed conflicts and aggression between states; as well as it will contribute to the restoration of confidence and stability in the region and around the world, and demonstrate the solidarity of the international community with Ukraine in its struggle to restore its sovereignty and territorial integrity.

Prospects of the Coordinate Jurisdiction of the International Criminal Court (ICC) and the African Court of Justice and Human Rights (ACJHR)

The intended coordinate jurisdiction with the International Criminal Court (ICC) and African Court of Justice and Human Rights (ACJHR) adopted by the Malabo Protocol 2014, and which called on all African Union (A.U) State parties to sign and ratify same, inarguably, raised questions concerning its prospects and challenges to the development of international criminal justice system. This study, therefore, argues that this development may undermine the universality of the Protocol of the International Criminal Court (ICC) and encumbered extradition processes in Africa if the coordinate jurisdiction to entertain cases relating to the contravention of the provisions of the international humanitarian laws, especially those that are related to violations of peoples’ rights which is a commonplace in the continent of Africa is sustained. It also argues that if properly managed it may also enhance the implementation of international extradition processes in Africa. To achieve its specific objectives, this study adopted historical research design relying mainly on secondary source of data. The study suggests among others that both courts should harmonise the jurisdictional mandates granted them by the protocols that established them and collaborate in cases involving individuals and regime leaders and officials in order to continue to indict and prosecute those who have contravened the provisions of international humanitarian laws, particularly in Africa that has recorded more grievous human rights violations during civil unrests, conflicts and civil wars.

Sentencing and the over-representation of people with cognitive disability in the Australian criminal justice system

ABSTRACT People with Cognitive Disability (PWCD) are over-represented in Australian and International Criminal Justice Systems (CJS). Research has focused on the disadvantages experienced by PWCD which bring them into earlier and more continuous contact with the CJS than the general population. There has been little empirical analysis of how sentencing might contribute to over-representation. This article reports on a project which investigated: (1) the characteristics of PWCD who appeared before Queensland courts to be sentenced; and (2) the factors that judges considered during the sentencing of PWCD. An inductive thematic analysis of 34 sentencing remarks transcripts from Queensland’s Supreme and District Courts provided a descriptive overview to address the first component. Themes addressing the second component included: difficulties and disadvantages; capabilities; and the subjectivities of defendants. Interpreted using critical sociological perspectives on punishment, these themes demonstrated how judges navigated a tension between responding to defendants’ needs and protecting the community from a ‘dangerous other’. The community was often prioritised, contributing to the enmeshment of PWCD in the CJS. This adds to over-representation and raises the dilemma of how to respond to community safety concerns while meeting the potentially complex needs of PWCD without drawing them more deeply into the CJS.

Transformation of International Criminal Justice Principle into Indonesia National Criminal Justice System: How Domestic Law Adopt Global Values?

Indonesia is one of the countries that adhere to a legal system in it. As a rule of law, of course, it has become a natural thing when all the activities and activities of each individual and the state have been regulated under the rule of law. To create law, specifically a better criminal law. So it is necessary for law enforcement, the rule of law, the legal process, and all aspects of the law to be better. All of these aspects have been regulated in the criminal justice system. The criminal justice system requires synchronization, where the contents of this synchronization will regulate aspects of substance, structural aspects, and cultural aspects in it. Where all of these aspects must be able to synchronize with each other to integrate with a substantial aspect. The role of international criminal law as one of the guidelines in the national criminal justice system is very closely related. The author wants to examine what is the National and International Criminal Justice Systems? and What is the relationship between the Indonesian criminal justice system and international criminal law?International Criminal Law; National; Criminal Justice System.

"Prosecutorial Discretion: An Imperative for Effective Prosecution in the Punjab Criminal Prosecution Service"

In a welfare state, the necessity for a certain level of discretion is widely acknowledged. Discretion plays a crucial role in law enforcement practices and is essential for the effective administration of justice. Within international Criminal Justice Systems, prosecutors have a pivotal responsibility in upholding the rule of law. Given their position within the executive branch, prosecutorial discretion becomes imperative. It is vital to observe that discretion itself is not inherently damaging; however, unchecked and absolute discretion can lead to adverse outcomes. The goal should not be the elimination of discretion, but rather its structured implementation. Within the realm of the criminal justice system, where both the law enforcement agencies and the court possess considerable discretion in pursuit of justice, it follows that the prosecution should also possess a degree of discretion. Without equipping the prosecution with essential discretionary tools, the Punjab Criminal Prosecution Service would be unable to effectively fulfill its role in criminal justice system. Consequently, the time has come to empower the prosecution with the necessary discretion it requires, especially the discretion to decide whether to prosecute or not which stands as a vital prerogative that prosecutors must possess to uphold the justice.

Prosecution for the most serious international crimes committed in Ukraine during the full-scale military invasion of the aggressor country: jurisdictional aspects

The conceptual issues, related to the construction of the system of international criminal justice, ratification of the Rome Statute of the International Criminal Court and features of cooperation of Ukraine with the International Criminal Court, are examined in the article.
 The main reasons for the delay in Ukraine's ratification of the Rome Statute of the International Criminal Court are analyzed, and attention is drawn to the inconsistent and contradictory position of Ukraine, which does not use the mechanisms of criminal prosecution for the crime of genocide, crimes against humanity, war crimes and the crime of aggression provided for by the Rome Statute of the International Criminal Court. Ukraine has signed the Rome Statute of the International Criminal Court and invites the latter to investigate crimes committed by the aggressor country in Ukraine, but does not fulfill its obligations, does not ratify the Rome Statute of the International Criminal Court and does not recognize its jurisdiction (except for special jurisdiction).
 The need to harmonize substantive and procedural law of Ukraine to the provisions of the Rome Statute of the International Criminal Court is emphasized. The prospects, negative and legal consequences of Ukraine's ratification of the Rome Statute of the International Criminal Court in the context of a full-scale military invasion of Ukraine by an aggressor country, as well as European integration processes and the requirements of the Association Agreement between Ukraine and the European Union are studied. The thesis is proved that Ukraine's non-ratification of the Rome Statute of the International Criminal Court may affect the possibility of bringing the aggressor country to justice, despite the fact that Ukraine used a special procedure of recognizing the jurisdiction of the International Criminal Court.
 The main aspects of the activity and jurisdiction of the International Criminal Court were considered. Attention is drawn to the fact that Ukraine's relations with the International Criminal Court are based on the principle of complementarity of jurisdictions. The essence, significance and advantages of Ukraine's cooperation with the International Criminal Court, as well as the possibility of bringing the aggressor country to justice for the crime of genocide, crimes against humanity, war crimes and the crime of aggression, have been studied. Based on the results of such a study, it was concluded that the recognition of the jurisdiction of the ICC (not only the special jurisdiction due to Clause 3 of Article 12 of the Rome Statute) for Ukraine is a priority and indispensable component of its European path of development and a real opportunity at the international level to prosecute top officials of the aggressor country for crimes committed in Ukraine.
 The ratification of the Rome Statute of the International Criminal Court provides additional opportunities for the national judiciary, will lead to the strengthening of the rule of law and, thanks to access to the International Criminal Court, will allow the aggressor country to be held accountable for crimes committed during a full-scale military invasion of Ukraine.

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.

Terminal Illness and Compassionate Release

Abstract International prisoners can apply for early release. However, terminally ill prisoners seeking release in the international criminal justice system face significant legal and practical obstacles. This is particularly the case for prisoners convicted by the International Criminal Court (ICC): there is currently no framework for granting compassionate release prior to serving the statutory required amount of a sentence. To build a foundation for recommendations for the creation of a system of compassionate release at the ICC, this article critically examines the systems used to grant early release to terminally ill persons in international (International Residual Mechanism for Criminal Tribunals) and national criminal law, with a particular focus on how these systems operate for prisoners that have served less than the typical eligibility requirement for release. This article sets out a normative basis for creating a novel and distinct form of release at the ICC: a compassionate system based, not on penological justifications, but on the impossibility of continued detention on human rights grounds. It concludes with recommendations for essential substantial and procedural elements for this system and means of incorporating it into the current legal framework.

The Nuremberg verdict is relevant today, more than ever

The Nuremberg verdict gave a criminal-legal assessment of the crimes of the Nazi leadership of Germany and was a kind of legal outcome of the Second World War. The verdict has become a kind of basis for the formation of the system of International Criminal Justice. Obviously, this event has always attracted and will continue to attract the attention of foreign and domestic researchers. A clear evidence of the relevance of such interest is the work of A.N. Savenkov considered by us. It should also be noted the following circumstance, which emphasizes the importance of the monograph we are considering in terms of a multilateral vision of the features of criminal military justice. The author highlights those sections of his research, which allows him to make an unambiguous conclusion that the Soviet justice, following in the wake of international cooperation, at the same time actively formed its own approach to the problem of punishment for war crimes. Noteworthy are the author's conclusions about the significance of the work of the Tribunal. The fact that Nuremberg became the basis for a completely different understanding and perception of the principles of the world order is highlighted. Nuremberg passed the Judgment in the name of peace, and it was based on the observance of all procedural principles and procedures for the administration of justice adopted in various countries.

International Criminal Justice

Abstract Some critics contend that the International Criminal Court (ICC) is selective in its approach to international criminal justice. Thus, they called for withdrawal from the Rome Statute. This call is reflective of Third World Approaches to International Law (TWAIL) to the extent that it constitutes a protest against unequal treatment of the Third World. But what is somewhat overlooked is that the ICC is a court of last resort and that state parties to the Rome Statute are required to prosecute unless they are unwilling or unable. This is called the principle of complementarity. This study therefore examines TWAIL and the Rome Statute complementarity principle within the context of international criminal justice. It finds that the ICC is too eager to intervene and that in the process the Third World is being used as a guinea pig even though selectivity cannot be unequivocally established. It argues that this is hegemonic. To obviate this situation, it is argued that Third World states can prosecute for one another through direct transfer of criminal jurisdiction or through an international organization to prosecute on their behalf. Whenever the ICC wants to intervene in respect of any crime that the state party concerned is required to prosecute, the state party will indicate that another state or an international organization to which it has transferred its jurisdiction is acting as its agent and that it is the one doing the prosecution as the principal. With this, the internal situation of Third World states would have changed as envisaged in the third objective of TWAIL and they will be able to operate within international criminal justice system without being at its receiving end.

Potential international crimes in Ukraine: should atrocities in Bucha be classified as genocide, war crimes, or crimes against humanity?

The dilemma between the root of the word Genocide and its legal meaning is affecting the international criminal justice system. The proof is that Presidents Volodymyr Zelenskyy of Ukraine and Joe Biden of the USA called the atrocity crimes observed in Ukraine “Genocide”. The purpose of this study is to examine whether the atrocities that recently occurred in Bucha could be qualified as a crime of genocide. This article substantially analyzed the meaning of the terms composing the word genocide in the context of the nature of those atrocity crimes. In this regard, it was found that there is etymologically a gap between the legal meaning of genocide and the nature of the crime in question which shields its alleged perpetrators from impunity. Thus, this paper attempted to demonstrate that the alleged atrocity crimes observed in Bucha could not be classified as genocide and then, exposed the potential international crimes committed in Ukraine.

International Prosecutors Acting before National Courts?: The Rome Statute System and the Ultimate Approach to Positive Complementarity

Abstract The paper discusses whether it is possible to install an international prosecutor before domestic courts to prosecute international crimes. As the “future of international law is domestic” the paper analyzes the question of possible development of the international criminal justice system, suggesting the ultimate approach to positive complementarity which includes international prosecutors acting before national courts. It begins with analyzing the concept of positive complementarity and its possible interpretations, arguing that there are no compelling policy reasons against reinterpreting the idea in order to allow an international prosecutor to act before national courts. Subsequently it briefly presents the first installments of such institutions and focuses on the challenges connected with providing such a scenario in a future.

LAJPCIŠKI PROCESI – PRILOG PROUČAVANJU ISTORIJE MEĐUNARODNOG KRIVIČNOG PRAVA

The historical development of International Criminal Law in the period leading up to the First World War was of negliable value, especially when compared to the post-war period from 1918 to 1939. In Versailles Europe matured an idea, whose roots stemmed from much earlier, an idea of establishing an International Criminal Court which would protect basic human values, shared by all states no matter the form of government or political affiliations. Having noticed the link between world conflict and the development of International Criminal Law comes the conclusion that this idea first came to life after the Great War in 1918. This is how for the first time in history an institute of responsibility was formed for the rulers and military commanders concerning the war crimes committed by the state - these first examples being the trial of German Kaiser Vilhelm II and the individual Leipzig trials involving officers of the German army. Although the Kaisers trial was a failed attempt, and the Leipzig trials are considered failures due to material and formal deficiencies, especially concerning their outcomes, these parts represented an experimental phase of a historical process crucial to the forming of the international criminal justice system. Europe was aware that the modus operandi taken in this direction didn’t pass the test, and that the state and economy matters would always come first in the Versailles world. However, the repetition of this scenario wasn’t allowed during the Second World War and we can confidently say that the Nuremberg trials found their foundations stemming from Leipzig’s lessons. In the European law legacy Leipzig created the first written documents which would serve as waypoints in the further codification of International Criminal Law. Lastly, it can be said that in the period from 1918 to 1939 the European policy was introduced to the problem of realising that all further processes leading to the constitution of a uniform and legitimate international criminal justice system would undeniably lead to the redefining of two fundamental dogmas of international order: the principle of (absolute) state sovereignty and the (non)existence of international law subjectivity (and therefore the responsibility) of an individual.

Final Report Independent Expert Review as a Form of Supervision over the Activities of the International Criminal Court

This article is devoted to the analysis of the "Final Report of the independent expert Examination", from the point of view of the issues of supervision of the activities of the International Criminal Court. The subject of this study is an overview of the "Final Report of an Independent Expert Examination" as a form of supervision of the activities of the International Criminal Court (hereinafter the ICC). In the course of the study, the method of system analysis was used, which made it possible to analyze the provisions of the report under consideration, in relation to the activities of the ICC. General scientific research methods were also applied: dialectical method, deductive method, comparative method, in which the general provisions of the report under consideration were analyzed first, and then comparison with other international organizations was carried out. The author consistently analyzes the problems that the experts highlighted in the report, as well as the recommendations that were given to improve the activities of the international judicial organization. Particular attention is paid to the analysis of recommendations related to the management model of the International Criminal Court, conflict of interest, as well as to improving the reporting system. The paper concludes that the changes proposed by experts are important for the entire international criminal justice system. The scientific novelty of the work is as follows: system proposals that can improve the activities of the ICC, as well as the work of the entire system of international criminal courts and tribunals, are considered and analyzed.

Strategic Litigation in International Criminal Justice

Abstract This article inquires into strategic litigation in international criminal justice. Drawing on the findings of an empirical study, it sheds light on the practice and self-perception of Strategic Litigation NGOs (so-called SLiNGOs) who employ international criminal law not only as an advocacy tool but use litigation to target perpetrators of international crimes as part of a larger juridical–political strategy transcending the individual case. Following a brief reflection on the role and significance of NGOs in international criminal justice in general and an examination of the basic idea of strategic litigation, the article delves into an analysis of the concept of strategic litigation as employed by SLiNGOs as well as the various functions of strategic litigation specifically in the international criminal justice context. Relying on interviews with SLiNGO representatives, the authors examine whether SLiNGOs — in their self-perception — serve merely as ‘assistant prosecutors’ or rather as kickstarters, pacemakers and watchdogs of the enforcement of international criminal law. They further explore the counter-hegemonic potential of strategic litigation and SLiNGO’s attitudes towards international criminal justice as such. Analysing potential pitfalls and critiques directed at strategic litigation and the responses of SLiNGOs to such criticisms, the authors conclude that strategic litigation can indeed fill a gap in the current state-based system of international criminal justice and suggest an agenda for further research.

Optics, Aged Witnesses and Aged Defendants: Habré at the Extraordinary African Chambers

Abstract The prosecution of international crimes in domestic and international criminal justice systems may involve aged defendants. Such prosecutions often implicate aged witnesses as well. There is a dearth of literature not only on the expressive value and optics of punishing aged defendants but also on the role of aged witnesses in the trial process. The need to interrogate these optics and perceptions—be it from an empirical or a theoretical perspective—is not only necessary, it is also timely. This article assesses the prosecution of Chadian dictator Hissène Habré in 2015–2016 at the Extraordinary African Chambers. This trial not only concerned an aged defendant, but also over 90 witnesses, the majority of whom was aged. This article explores the dialectics between the optics of punishing aged defendants and the optics of aged witnesses at the Habré trial.

Special Tribunal for Lebanon and progressive development of international criminal law

The subject. The article analyses the practice of the Special Tribunal for Lebanon and its Judgement of 18 August 2020, rendered against those found guilty of a terrorist act and the impact on the progressive development of international criminal law.The purpose. This article seeks to define what goal the international community pursued in establishing the Special Tribunal for Lebanon from the perspective of international security law, international criminal justice, and counter-terrorism cooperation. The legal nature of the terrorist attack of 14 October 2005 is essential in this regard: is the crime is comparable in its gravity and consequences to the crimes of genocide or war crimes in the territory of the former Yugoslavia or Rwanda, which predetermined the subsequent establishment of ad hoc international criminal tribunals? Further, was the establishment of the Special Tribunal for Lebanon an attempt to make the crimes of terrorism an international crime in practice? Finally, was the establishment of the Tribunal an attempt to lay the groundwork for a new type of international judicial bodies with jurisdiction over crimes of terrorism? The methodology. The authors use such general theoretical and specific scientific methods as comparative analysis, generalization, interpretation and classification as well as systemic analysis and formal logical methods.The main results. The legal qualification and analysis of the circumstances of the terrorist attack do not enable the conclusion that the bomb explosion in Beirut was comparable in danger and consequences to any international crimes or was a threat to international peace and security. In its turn, the involvement of the Security Council in the establishment of the Tribunal does not unequivocally evidence its alleged attempt to create a purely international criminal structure.The choice of applicable law granted to Lebanon and the fact that the crime committed solely affected the interests of that State would qualify the Tribunal as an internationalized judicial body, whose work would focus on defining the crime of terrorism through a broader lens of interpreting national legislation. In other words, the impetus for development has been given not to international but national criminal law.The Tribunal was created neither to progressively develop international criminal law with regard to defining terrorism as an international crime nor to advance the international criminal justice system. Rather, it was an attempt to address Lebanon’s specific political and legal challenges.Conclusions. The outcome of the Tribunal’s work could have a rather negative impact on the development of international criminal law, discrediting the very idea of enabling “peace through justice” and uniform, consistent application and interpretation of international criminal law.