Violations Of International Criminal Law Research Articles

Human Rights and Military Health: A Review of Violations of International Criminal Law in Armed Conflict

Human Rights (HAM) are rights inherent in every individual, including in the context of military health in the midst of armed conflict. This article reviews violations of International Criminal Law (HPI) that occur in conflict situations, such as murder, torture and forced labor. Protection of human rights in the midst of armed conflict is important, especially regarding access to adequate health services and freedom from treatment that violates human rights. Serious efforts are needed to ensure that military health does not violate human rights principles, so that the world community can maintain their dignity and human rights, even in the midst of conflict-ridden situations

In the Absence of a Tribunal, Can UN Investigative Mechanisms Ensure Justice for Victims of Rape as a Weapon of War?

Abstract This article explores the evolution of UN fact-finding mechanisms as a method of pursuing legal accountability for violations of international criminal and human rights law, specifically sexual and gender-based violence and violations of sexual and reproductive health rights in conflict situations. The article argues that, in order to effectively contribute to the task of securing individual accountability for violations of international criminal law, while also pursuing political accountability for mass abuse of human rights, the UN system of fact-finding mechanisms must be reformed. The mandates of Commissions of Inquiry must be stripped back to their core function of investigating human rights abuse, while Novel Investigative Mechanisms take over the individual criminal responsibility mandate. Until both these functions are given separate and adequate attention by properly resourced fact-finding mechanisms, victims of abuse such as sexual and gender-based violence and violation of sexual and reproductive health rights in countries without recourse to international courts will be denied justice and recognition through UN channels.

Rola prokuratora w postępowaniu przygotowawczym przed międzynarodowymi trybunałami karnymi

In the process of creation of international criminal tribunals not only criminal procedure sui generis was designed but also for the first time detailed powers of prosecutor had to be adapted to specificity of their functioning. Procedure of international criminal tribunals creates new foundations to the position of prosecutor. The role that is played by this organ in international justice system depends mainly on the position of the tribunal itself. The creators of international tribunals applied legal instruments from several legal systems choosing solutions that seemed most appropriate for organs of international justice. In the consequence such procedure constitutes an amalgamate of common law institutions and solutions used in continental legal systems. In the negotiations during creation of the International Criminal Court for many years the best solutions were discussed and designed. Several questions regarding the shape of procedure had to be answered. The answers influenced not only the powers of prosecutor but also the role of tribunal. The place of prosecutor as an organ of the tribunal was the first issue of fundamental importance. International military tribunals in Nuremberg and Tokyo did not create prosecutor as an independent organ. Prosecutors acted only in the name of the victorious governments. It was only with creation of ad hoc tribunals – International Criminal Tribunal for former Yugoslavia and International Criminal Tribunal for Rwanda – that prosecutor became an independent organ, equipped with his own powers. At the time being, in the procedure before the International Criminal Court independence of prosecutor is the fundamental element of his status and is protected equally to independence of judges. Secondly, the choice between opportunity and legality of prosecution had to be made. It was agreed that prosecutor should take actions only in the most severe situations regarding most serious violations of international criminal law when specific circumstances indicate that they are in the interest of an international organ of justice. Perpetrators of international crimes are usually too numerous to be brought to justice before an international organ. In such situation it is accepted that prosecutor should initiate criminal proceedings only when he sees the procedure to be in interests of international justice. The issue of initiation of procedure was equally crucial. Each tribunal offers to prosecutor such powers, although in the ICC it was one of the most disputed solutions. In the consequence prosecutor plays an important role in the functioning of international justice. Not only he can initiate procedure proprio motu but also chooses situations and perpetrators that should be brought to justice before international tribunals. The shape of pre-trial stage constitutes an amalgamate of different criminal justice systems – both elements of common law and continental legal systems have been employed in order to create procedure most fitted to the specificity of situations that have to be dealt with by international tribunals. Such institutions as disclosure of charges and documents come from common law. Continental legal systems provided solutions of confirmation of indictment and active role of Pre-Trial Chamber in the pre-trial stage. In the consequence system of checks and balances was created – prosecutor conducts the pre-trial stage but most important decisions have to be confirmed by a judicial organ. This article presents powers of prosecutors of international criminal tribunals during the pre-trial stage of proceedings. It focuses on such institutions as power to initiate of proceedings and its limitations, preliminary examination of a case, authorization of investigation, conditions of such authorization and powers of prosecutor to act on a territory of states. Many procedural issues concerning the role of prosecutor have been explained during the judicial activities of ad hoc tribunals. It can be expected that in the jurisprudence of the ICC problems concerning the role of prosecutor of international tribunal will be further developed.

Intersectionality: Explaining SGBV Interlinked with Terrorism and Other International Crimes

Sexual and gender-based violence (SGBV) is often intertwined with and nested within other violations of international criminal law (ICL) as part of a broader attack against a group. However, ICL is not giving enough visibility to this nexus of crimes rooted in the intersection of identities and discrimination that underpins SGBV during conflict. Intersectionality is a concept originated in feminism and progressively recognized by international human rights law (IHRL). It posits that SGBV is caused by gender 'inextricably linked' with other identities and factors that result in compounded discrimination and unique aggravated harms. Based on case studies, this paper argues that ICL should integrate an intersectional approach based on identity and discrimination to address the nexus between SGBV and broader international crimes. Intersectionality enables a better understanding of the causes, harms, and gravity of SGBV, and it provides consistency with an IHRL interpretation. The article begins setting out the foundations of intersectionality in feminism and IHRL, and its applicability to ICL. It then applies intersectionality to two case studies that demonstrate the interlink of SGBV with broader violations of ICL: The Revolutionary United Front Case (RUF) trial judgment of the Special Court for Sierra Leone (SCSL) concerning SGBV and the war crime committing acts of terrorism, and Al Hassan, prosecuted at the International Criminal Court (ICC), concerning SGBV and the crime against humanity of persecution. It concludes with final remarks on why and how ICL would benefit from integrating an intersectional approach to SGBV.

The Power of Culture and Judicial Decision-Making at the International Criminal Court

This chapter examines the influence of culture - as one among many extra-legal factors - on the International Criminal Court’s judicial decision-making. Specifically, it considers whether admitting social science evidence, such as testimonies and opinions of cultural experts (for example, anthropologists or sociologists), can be seen as an adequate means to overcome the challenge of international judges’ remoteness from local cultures and to fill in cultural knowledge gap on their part when finding facts and making decisions. Starting from a broad and dynamic definition of culture, the chapter first introduces the vexed question of cultural relativism in international criminal law, looking at how the ICC judges are supposed to deal with it in culture-related judicial decision-making. While arguing that the ICC judges should reject arguments that culturalise violations of international criminal law and instead aim for universal application of joint criminal law standards and principles, it portrays ways how cultural understanding and sensitivity is meaningful to the Court’s judicial practices. It then goes on by highlighting an additional value that, in the right circumstances, the use of cultural expertise could bring to judicial deliberations and decision-making at the ICC. Having considered the role and contribution of cultural experts, the chapter turns to briefly discuss possible ways to increase overall cultural sensitivity of the ICC judges and ensure that their decisions are made independently of their cultural assumptions. The final part of the chapter finds that cultural understanding and sensitiveness of the international criminal judge is indeed an important factor in ensuring fair trials and rendering just decisions. It concludes with some recommendations on the appropriate engagement of cultural experts in international criminal trials.

Grand Corruption and the International Criminal Court in the ‘Venezuela Situation’

Abstract Venezuela’s ongoing crisis has resulted in the first-ever joint request from states parties to the International Criminal Court (ICC) to open a preliminary examination. The evidence presented until now of crimes against humanity focuses on attacks on political opposition and demonstrators. We contend that the situation in Venezuela is not fully comprehensible, and the referral falls short, without the use of the lens of grand corruption. We describe what we mean by ‘grand corruption’, how it has corroded Venezuela, and why grand corruption and the atrocities are connected. We explain how every step of the preliminary examination process is better understood if a corruption-infused analysis is brought to bear upon it. We then turn to some caveats and limiting considerations. Finally, we draw some implications for other, increasingly common, situations where grave violations of international criminal law take place because of, and are maintained by, systems of kleptocracy.

Venezuela, Grand Corruption, and the International Criminal Court

Venezuela’s ongoing crisis has resulted in the first-ever joint request from States Parties to the ICC to open a preliminary examination. The evidence presented until now of crimes against humanity focuses on attacks on political opposition and demonstrators. We contend that the situation in Venezuela is not fully comprehensible, and the referral falls short, without looking through the lens of grand corruption. We describe what we mean by grand corruption and how it has corroded Venezuela. We explain how applying a corruption lens to every step of the preliminary examination process – the existence of crimes against humanity, the unwillingness of local justice systems to operate, the gravity of the harm even with a relatively small number of killings, and the interests of justice – is better understood if a corruption-infused analysis is brought to bear. We then turn to some caveats and limiting considerations. Finally, we draw some implications for other, increasingly common, situations where grave violations of international criminal law take place because of, and maintained by, systems of kleptocracy.

Corporate Criminal Responsibility for Human Rights Violations: Jurisdiction and Reparations

Modern prosecutions at international criminal courts and tribunals have demonstrated that the resources available for reparations and restitution from individuals convicted of core international crimes is grossly insufficient to meet even basic restitutionary needs. Most of the wealth that might exist as a result of international crimes is likely to be in the hands of corporations or other artificial persons who have gained property and income through human rights violations. None of the international criminal courts and tribunals (ICCTs) has adjudicative jurisdiction over artificial persons of any sort, so that any progress on restitution and restorative justice must come through national tribunals. This applies to both core international crimes and the broader category of human rights treaty crimes which are outside the authority of ICCTs. Many obstacles to reparations for human rights violations related to business activities arise from the international and national laws of jurisdiction. Rules of prescriptive, adjudicative, and enforcement jurisdiction combine with substantive rules of criminal law to make adequate reparations for human rights related business crimes difficult to achieve. The Guiding Principles on Business and Human Rights (the “Ruggie Principles”), adopted by the United Nations Human Rights Council, address prevention, monitoring, and remediation of business participation in human rights abuses of all kinds. Application of several of the Principles can help states provide a jurisdictional framework for reparations for business-related human rights violations. There are some signs of progress in recent decades. More states are now willing to exercise criminal jurisdiction over corporations in the past. New human rights treaties require states to hold artificial persons liable for violations, criminally or otherwise. Objective territorial jurisdiction (sometimes called “effects” jurisdiction) is ever more clearly permissible when outside activity directly causes criminal results in states. Finally, the rule against enforcing criminal law judgments across borders is beginning to decline, making the shielding of assets from claims for restitution and restorative justice through criminal proceedings much more difficult. Nonetheless, many obstacles to transnational enforcement of criminal judgments remain. Given trends in the international law of jurisdiction, it may turn out that civil judgments of restitution and reparation will be easier to obtain and enforce than criminal judgments. This is a Report for “Prosecuting Corporations for Violations of International Criminal Law: Jurisdictional Issues,” Section 4 of the XXth Association Internationale de Droit Penal/International Association of Penal Law Congress.

The Meaning of Gravity at the International Criminal Court: A Survey of Attitudes About the Seriousness of Mass Atrocities

Gravity is an extremely important concept at the International Criminal Court (ICC). It is crucial to decisions about which situations to investigate, which cases to bring to trial, and what sentences to impose on those who are found guilty. Gravity may also be very important for the long-term success of the court. The Rome Statute states that the ICC will exercise jurisdiction over “the most serious crimes” and that the prosecution of these “grave crimes” will “contribute to [their] prevention.” And it may well be true that if the court is perceived as investigating and prosecuting the most grave crimes that this will contribute to the prevention of such crimes. But the court must not only claim to be prosecuting the most serious offenses, it must be seen to be prosecuting the most serious offenses. This dynamic places a great deal of weight on the meaning of gravity within the Statute. If the ICC’s gravity definition does not accord with most people’s expectations, then they are less likely to perceive the court as prosecuting the most grave offenses. If people do not perceive the court to be focusing on crimes of the greatest gravity, they are less likely to believe the ICC is legitimate, and less likely to conform to its norms. As a result, it is very important that the court’s gravity decisions match people’s expectations about those decisions. Unfortunately, there is very little scholarship on how the population as a whole views the gravity of mass atrocities. This Article aims to fills that void by surveying people about their understanding of crime gravity. The survey asked participants to rate the seriousness of different mass atrocities. The participants’ scores were then used to determine which factors increase the perceived gravity of crimes. The results indicate that there are some areas where there is relatively broad agreement as well as some areas where there is less agreement. Overall, the results are good news for the ICC because they suggest that it is possible for the ICC to create a gravity definition that most people will view as legitimate. Ultimately, having a definition of gravity that most people can agree with will help the Court accomplish its long-term goal of preventing violations of international criminal law.

The Invisible Hand

The relationship between crime and commerce remains largely unexamined within the realm of international criminal justice. While corporations continue to be immune from prosecution at the international level for violations of international criminal law, individuals, acting on behalf of corporations, have largely evaded liability as well. In this spirit, the author explores the International Criminal Court’s (ICC) ability to prosecute business leaders that profit from, enable and facilitate the act of forced population transfer, and hones in on the more challenging aspects of conducting such prosecutions. This article begins by examining the legal requirements for establishing guilt based upon the accessorial mode of liability of aiding and abetting. It then considers the extent to which pursuing these kinds of prosecutions will require a rethinking of the concept of who bears the greatest degree of responsibility. The systematic policies of forced population transfer employed by Israel in the occupied Palestinian territory, in which businesses play an important role, will be used as a framework through which to assess the feasibility of such prosecutions. The author concludes that although there is no theoretical barrier to the ICC asserting jurisdiction over such leaders, successful prosecutions of this nature may prove challenging.

The ICC and the Security Council: How Much Support is There for Ending Impunity?

Kenyan government’s refusal to cooperate had made it too difficult to obtain evidence against him. This led Professor Kontorovich to argue that the ICC’s goal of ending impunity for serious violations of international criminal law is a utopian dream that cannot be achieved given the current state of the world. The dismissal of the case against Kenyatta does, indeed, raise serious questions, but Professor Dutton addresses the ramifications of the Kenyatta case in more detail.

Classifying Cultural and Physical Destruction: Are Modern Historical and Current Human Rights Violations in China Violations of International Criminal Law?

Modern (Communist) China has a chequered history with regard to the commission of and accountability for mass violence and human rights violations. Campaigns by the Communist Party have resulted in horrific mass crimes such as killings, starvation, torture, beatings, and persecution. While such conduct undoubtedly amount to violations of human rights, there are many examples from China’s recent past and in China today where situations of mass human rights violations, as well as mass atrocities, could also constitute violations of international criminal law (war crimes, crimes against humanity or genocide). This paper will assess three examples in modern China’s history and present to determine whether they amount to international crimes: the Cultural Revolution, the 1989 Tiananmen Square Massacre, and human trafficking (including the consequential crimes of forced marriage and forced prostitution); and offer a brief overview of what accountability steps China should take with regard to these crimes.

The Complexity of International Criminal Trials Is Necessary

There is a widespread belief among both academics and policymakers that international criminal trials are too complex, and tribunals have come under enormous pressure to reduce the complexity of their trials. So far, however, changes to the procedure have not meaningfully affected trial complexity. This Article explains why these changes have failed and argues that the complexity of international criminal trials is necessary for them to fulfill their purposes. Using a multiple regression model of the factors driving trial complexity at the International Criminal Tribunal for the former Yugoslavia (ICTY), this Article shows that the largest drivers of complexity are two factors that courts cannot control: the accused’s seniority within the political or military hierarchy and whether the accused is a direct perpetrator. The complexity of international criminal trials appears to be driven by the need to attribute responsibility for serious violations of international criminal law to accused who are often both organizationally and geographically distant from the crimes they are alleged to be responsible for. Attribution of responsibility is a necessary feature of most international criminal trials, and complexity associated with this process cannot be easily eliminated. The Article considers some ways that complexity could be significantly reduced – for example by making international criminal law violations strict liability offenses – but they all come with serious drawbacks that would probably undermine the purposes of international criminal justice. Ultimately, it appears that international criminal trials must be complex if they are to achieve the goals that we have set for them.

Justice vs. Propaganda: Are Trials at the International Criminal Tribunal for the Former Yugoslavia Legal or Political? An Empirical Analysis of the Indictments

The recent acquittals of Ante Gotovina and Ramush Haradinaj at the International Criminal Tribunal for the Former Yugoslavia (ICTY) have once again raised questions about the nature of the ICTY’s trials: are they predominantly legal or political? This Article attempts to answer that question through a first-of-its-kind empirical study of the ICTY’s indictments. It tests whether the ICTY’s trials are structural show trials by looking for statistically significant correlations between the components of the indictment and conviction/acquittal or sentence length. It also explores whether the indictments comply with the requirements of international criminal law, are internally consistent, and match what we understand about how serious violations of international criminal law are committed. Finally, it compares charging practices at the ICTY to charging practices in a number of domestic criminal justice systems that are broadly viewed as fair and finds that the ICTY’s charging practices fall within the range of those domestic practices. The results of this analysis suggest that the ICTY’s trials are not show trials, that they are fundamentally fair, and therefore predominantly legal in nature.However, there is evidence that the Prosecutor has been affected by political considerations when deciding who to investigate and charge. For example, political pressure appears to partly explain the Prosecutor’s decision not to seriously investigate allegations that NATO militaries committed violations of international criminal law during NATO’s 1999 intervention in Kosovo. Similarly, there is evidence that political considerations led the Prosecutor to bring weak claims against non-Serbs partly to respond to criticisms that the ICTY was only prosecuting ethnic Serbs. These cases have failed at a disproportionately high rate, which suggests that it may not have been appropriate to proceed with them in the first place.

The Nature of International Criminal Law and Implications for Investigations

Violations of international criminal law are rarely committed in isolation. Frequently they are perpetrated in the context of a broader project or a massive upheaval consisting of numerous such violations. The context and scale of these events can create numerous logistical difficulties in conducting investigations. Overcoming such difficulties can consume massive amounts of human, temporal, and material resources. However, in addition to these practical difficulties, other difficulties stem from the law to be applied in such cases. All of these evidentiary challenges are in addition to those inherent in any criminal investigation, and they are magnified by the physical environments in which the crimes take place. Notwithstanding the difficulties encountered by the investigators of World War II atrocities, their task was simplified by the fact that the allies had police power throughout Germany after the war ended. This is not the case for today’s international criminal courts. For several years after the establishment of the Yugoslav Tribunal, investigators and prosecutors had little or no access to the crime scenes due to ongoing hostilities or lack of cooperation from local authorities. As this chapter is being written, prosecutors and investigators at the International Criminal Court have been unable to gain access to Darfur more than 18 months after the UN Security Council referred the situation there to the Court.Any international criminal investigation must take into account this combination of legal, political, and logistical factors. A thorough understanding of international criminal law assists in the appreciation of their interaction.

Collective Responsibility and Post-Conflict Justice

How best to secure justice in the aftermath of mass atrocity? International criminal tribunals – and courtrooms and jailhouses generally – have emerged as influential accountability mechanisms. Yet the justice pursued by international criminal tribunals, although tangible, also is strikingly under-inclusive. These limitations suggest that adequately redressing collective violence might contemplate a discursive shift to inclusively incorporating other accountability mechanisms, including collective forms of responsibility. Collective responsibility implies non-criminal sanctions that attach to groups whose misfeasance or nonfeasance is supportive of, acquiescent in, causally connected to, or necessary for serious violations of international criminal law to occur. This paper examines what collective responsibility mechanisms might look like; what ends they might serve; what dangers they pose; and how they might contribute to a more robust instantiation of post-conflict justice.

The Ability of the International Criminal Court to Deter Violations of International Criminal Law: ATheoretical Assessment

Many actors within the field of international criminal justice, including those who work for the Court itself, have heralded the deterrent power of the court and its ability to remove impunity for violations of international criminal law. Practitioners and scholars routinely assume a probability at best, to an assumption of sureness, of a powerful deterrent effect. Given the ongoing crimes against humanity that have occurred in the Twenty-First Century, such claims can only be seen as hopeful proclamations. This article examines the potential inhibitory effects that the Court may have on violations of international criminal law, especially international humanitarian law, grounded in criminological insights and explanatory power. To do so, we lay out the current state of thinking in deterrence theory and critically explore how it can, or fails to, generate the effects which so many international public actors, including the court itself, claim.

Book Review: Mullins, C. W., & Rothe, D. L. (2008). Blood, Power, and Bedlam: Violations of International Criminal Law in Post-Colonial Africa. New York: Peter Lang. 230 pp

Book Review: Mullins, C. W., & Rothe, D. L. (2008). Blood, Power, and Bedlam: Violations of International Criminal Law in Post-Colonial Africa. New York: Peter Lang. 230 pp

Is the Failure to Respond Appropriately to a Natural Disaster a Crime Against Humanity? The Responsibility to Protect and Individual Criminal Responsibility in the Aftermath of Cyclone Nargis

On 2 and 3 May 2008, Cyclone Nargis struck Myanmar, devastating large portions of the Irawaddy Delta and creating the potential for a massive humanitarian crisis. Yet, the government of Myanmar rejected aid from some countries, limited the amount of aid entering the country to a fraction of what was needed and strictly controlled how that aid was distributed. The United Nations and many governments criticized Myanmar’s response to the cyclone as inadequate and inhumane, and senior politicians from a number of countries discussed whether the situation justified invoking the “responsibility to protect.” This paper explores several questions, including: 1) can an inadequate response to a natural disaster constitute an ongoing crime against humanity and thus act as the trigger for the responsibility to protect?; 2) should the responsibility to protect have been invoked by the international community in response to Cyclone Nargis?; and 3) what would countries have been obligated to do if it was invoked? In particular, assuming that the invocation of the responsibility to protect would have been based on a finding that crimes against humanity were being committed by the government of Myanmar, would the international community be obligated to investigate and potentially prosecute the underlying violations of international criminal law? If so, what venues exist for the investigation and prosecution of these potential crimes? Finally, the paper attempts to assess the successes and failures of the responsibility to protect since its acceptance by the member states of the UN at the 2005 World Summit.

Toward a Criminology of International Criminal Law: An Integrated Theory of International Criminal Violations

Violations of international criminal law (i.e., genocide, crimes against humanity, and war crimes) are a common occurrence around the globe. One need only to read international news, visit intra‐governmental (e.g., United Nations or the International Committee Red Cross), or nongovernmental organizations (e.g., Human Rights Watch or Amnesty International) to be exposed to the vast numbers of crimes of states, paramilitaries, and/or militias. Nonetheless, there has been relatively little attention paid to these types of offenses by criminologists. While there have been developments in creating typologies (Smeulers, 2008) and predictive models for genocide (Harf, 2005), due to the complexities and various forms of these types of crimes, there has been little to no development of a criminological theoretical model that can aid in the analysis of such crimes. Our goal is to firmly place international crimes on the criminological agenda by creating additional awareness of and interest in the most massive, systematic, and gruesome types of crime‐genocide, crimes against humanity, war crimes, and crimes of aggression‐and to introduce an integrated theory that can provide a frame for a systematic analysis and understanding of the etiologi‐ cal factors at play.