Denying the Right of Return as a Crime Against Humanity

2021 ◽  
pp. 1-31
Author(s):  
Tomer Levinger
Keyword(s):  
International Criminal Court ◽  
International Criminal ◽  
Trial Chamber ◽  
Criminal Court ◽  
Crimes Against Humanity ◽  
Need To Belong ◽  
Doctrinal Development ◽  
Right Of Return ◽  
Human Need ◽  
The Right

This article argues that there are firm grounds upon which to regard the act of denying a person's right of return to their country as a crime against humanity. To make its case, the article builds upon two justifications for the right of return: its grounding based on the human need to belong, and its purpose as a means of preventing rightlessness. The human interests underlying these justifications, the article contends, are similarly those reflected by the image of humanness ingrained within the law of crimes against humanity. Therefore, when the right of return is denied, it is also an assault against humanness as such – a crime against humanity. Recently, proceedings before the International Criminal Court (ICC), with regard to the situation in Bangladesh/Myanmar, have made this question highly relevant. Both the Court's Pre-Trial Chamber and Prosecutor have raised arguments in support of regarding the denial of the right of the Rohingya peoples to return to Myanmar a crime against humanity of other inhumane acts. Consequently, this article attempts to offer support for what might turn out to be an important doctrinal development in ICC jurisprudence.

The Denial of the Right of Return as a Rome Statute Crime

2020 ◽  
Author(s):  
Micheal G Kearney
Keyword(s):  
International Law ◽  
International Criminal Court ◽  
Rome Statute ◽  
Final Section ◽  
International Criminal ◽  
Trial Chamber ◽  
Criminal Court ◽  
Central Importance ◽  
Right Of Return ◽  
The Right

Abstract In 2018, Pre-Trial Chamber I of the International Criminal Court (ICC) held that conduct preventing the return of members of the Rohingya people to Myanmar could fall within Article 7(1)(k) of the Statute, on the grounds that denial of the right of return constitutes a crime against humanity. No international tribunal has prosecuted this conduct as a discrete violation, but given the significance of the right of return to Palestinians, it can be expected that such an offence would be of central importance should the ICC investigate the situation in Palestine. This comment will review the recognition of this crime against humanity during the process prompted by the Prosecutor’s 2018 Request for a ruling as to the Court’s jurisdiction over trans-boundary crimes in Bangladesh/Myanmar. It will consider the basis for the right of return in general international law, with a specific focus on the Palestinian right of return. The final section will review the elements of the denial of right of return as a crime against humanity, as proposed by the Office of the Prosecutor in its 2019 Request for Authorization of an investigation in Bangladesh/Myanmar.

Better Late than Never: Reparations for Sexual Violence in the Ntaganda case before the International Criminal Court

2021 ◽  
Vol 2 (1) ◽  
pp. 27-47
Author(s):  
Sunneva Gilmore
Keyword(s):  
Sexual Violence ◽  
International Criminal Court ◽  
International Criminal ◽  
Child Soldiers ◽  
Trial Chamber ◽  
Criminal Court ◽  
Crimes Against Humanity ◽  
Medical Background ◽  
Modest Contribution ◽  
First Time

The Prosecutor v Bosco Ntaganda case at the International Criminal Court (ICC) represents the long awaited first reparation order for sexual violence at the court. This will hopefully see the implementation of reparations for the war crimes and crimes against humanity of rape and sexual slavery among civilians and former child soldiers, after previous cases such as against Jean-Pierre Bembe and Laurent Gbagbo were acquitted of rape. This article drawing from the author's role as a reparation expert in the case, is a reflection on the challenges of designing and providing reparations at the ICC against convicted individuals, as well as amidst insecurity and the COVID-19 infectious disease pandemic. It begins by discussing how the Ntaganda reparation order expanded reparation principles for the first time since the Lubanga case, in particular for crimes of a sexual nature. This is followed by an outline of some of the harms as a result of sexual violence from the perspective of an expert with a medical background. The analysis then turns to the appropriate reparations in this case and the details contained within the chamber's reparation order. Final conclusions consider how the procedural and substantive elements of reparations in this case will be instructive to future cases that address sexual violence. Ultimately, key insights are offered on the modest contribution an appointed reparation expert can do in assisting a trial chamber in the reparation process.

scholarly journals Managing Frozen Assets at the International Criminal Court

2020 ◽  
Vol 18 (3) ◽  
pp. 765-790
Author(s):  
Daley J Birkett
Keyword(s):  
International Criminal Court ◽  
International Criminal ◽  
War Crimes ◽  
Legal Framework ◽  
Trial Chamber ◽  
Criminal Court ◽  
Crimes Against Humanity ◽  
The Hague

Abstract On 8 June 2018, more than 10 years after his arrest, the Appeals Chamber of the International Criminal Court (ICC) reversed Jean-Pierre Bemba Gombo’s conviction by the Trial Chamber for crimes against humanity and war crimes, acquitting him of all charges. Soon after the start of his time in detention in The Hague, assets belonging to Bemba were frozen by states across a number of jurisdictions at the request of the ICC. Many of these assets remain frozen, more than 18 months after his acquittal. This article examines the consequences of prolonged asset freezes by the ICC through the lens of the Bemba case, demonstrating the existence of gaps in the legal framework applicable to the management of frozen assets under the ICC Statute system and suggesting possible responses thereto at the domestic and international levels.

International Centre for Settlement of Investment Disputes (ICSID):Azurix Corporation V. the Argentine Republic

2004 ◽  
Vol 43 (2) ◽  
pp. 262-285
Keyword(s):  
International Criminal Court ◽  
International Criminal ◽  
Trial Chamber ◽  
Criminal Court ◽  
Concentration Camp ◽  
Former Yugoslavia ◽  
Crimes Against Humanity ◽  
Argentine Republic ◽  
Common Purpose

On 25 June 2001, Milorad Kmojelac, a Bosnian Serb, was indicted by the Prosecutor of the International Criminal Court for the Former Yugoslavia (ICTY) on twelve counts of crimes against humanity and violations of the laws and customs of war. He had served as the commander of the Foca Kazneno-Popravni Dom (“KP Dom”) concentration camp in Bosnia-Herzegovina from April 1992 to August 1993. The charges against Kmojelac were based upon his acting in “common purpose” (as defined by Articles 7(1) and 7(3) of the ICTY Statute) with the KP Dom guards in persecuting Muslim and other non-Serb civilian detainees through torture, beatings, and murder. The Trial Chamber convicted Kmojelac of several of the charged offenses and sentenced him to a total of 7 Vi years imprisonment. He was acquitted of counts of torture, murder, imprisonment, and other inhumane acts. Both the defense and the prosecution appealed on various grounds. The Appeals Chamber dismissed all defense appeals and found for the prosecution on several grounds, increasing Krnolejac's sentence to 15 years.

The International Criminal Court and the Warrant of Arrest for Sudan's President Al-Bashir: A Crucial Step Towards Challenging Impunity or a Political Decision?

2009 ◽  
Vol 78 (3) ◽  
pp. 397-431 ◽  
Author(s):  
Manisuli Ssenyonjo
Keyword(s):  
International Criminal Court ◽  
International Criminal ◽  
Charles Taylor ◽  
Trial Chamber ◽  
Criminal Court ◽  
United Nations Security Council ◽  
Crimes Against Humanity ◽  
Political Decision ◽  
Head Of State ◽  
International Court

AbstractOn 4 March 2009 the Pre-Trial Chamber I of the International Criminal Court (ICC) held that it was satisfied that there were reasonable grounds to believe that Omar Hassan Ahmad Al Bashir, the president of Sudan, is criminally responsible under Article 25(3)(a) of the Rome Statute as an indirect (co)perpetrator for war crimes and crimes against humanity (but not for genocide). The Chamber issued a warrant for the arrest of Al Bashir making him the third sitting head of state to be charged by an international court following Liberia's Charles Taylor and Yugoslavia's Slobodan Milošević. Since then the ICC has been accused of making a "political decision" and that it is "part of a new mechanism of neo-colonialism". This article examines the ICC's decision against the background of the situation in Darfur. The article concludes that although the ICC decision and warrant cannot be considered political and neo-colonial in nature, the decision and warrant can be criticised as selective. It calls on the ICC to broaden its scope of investigations and for the international community to affirm its support for the ICC and insist that Sudan and other states cooperate fully as required by the United Nations Security Council.

scholarly journals PROSECUTING PRESIDENT AL BASHIR, AND THE SHORT ARM OF JUSTICE

2013 ◽  
Vol 25 (1) ◽  
pp. 197-209
Author(s):  
Suzanne Bullock
Keyword(s):  
International Criminal Court ◽  
International Criminal ◽  
Legal Reasoning ◽  
War Crimes ◽  
Trial Chamber ◽  
Criminal Court ◽  
Crimes Against Humanity ◽  
Head Of State ◽  
International Court ◽  
Heads Of State

Prosecutor v Omar Hassan Ahmad Al BashirIn this decision the Pre-Trial Chamber of the International Criminal Court (ICC) condemned Malawi, as a member state of the ICC, for the failure to comply with the request to arrest and surrender the President of Sudan, Omar Al Bashir. Significantly, the Chamber determined that the traditionally sacrosanct concept of immunity of Heads of State no longer applied before an international court or tribunal. Whilst the intention to create universal jurisdiction over perpetrators of war crimes and crimes against humanity is extremely laudable, the legal reasoning by the Chamber is regrettably unsound. If the decision remains unchallenged, the implication is that no Head of State, whether or not they are a signatory to the ICC, is immune from prosecution on the mere basis of the ICC’s status as an international court.

scholarly journals The Right to a Fair Trial and Judicial Economy at the International Criminal Court

2016 ◽  
Vol 5 (1) ◽  
pp. 86-118
Author(s):  
Patricia Hobbs
Keyword(s):  
International Criminal Court ◽  
International Criminal ◽  
Trial Chamber ◽  
Criminal Court ◽  
Final Decision ◽  
Civil Unrest ◽  
Rights Discourse ◽  
The Right ◽  
Human Rights Discourse ◽  
Judicial Economy

Following the civil unrest in Kenya in 2008 and Kenya’s inability to prosecute the perpetrators of those crimes, the International Criminal Court (icc) prosecutor initiated proceedings proprio motu against Mr Uhuru Kenyatta and Mr William Ruto. Despite the impending prosecutions, Mr Kenyatta and Mr Ruto were elected as President and Deputy President of Kenya in 2013. Due to their prominent status, they both applied (separately) to be excused from continuous attendance at their trial proceedings. Mr Ruto’s argument was heard first, and Trial Chamber (A) granted the excusal request. In the course of Mr Kenyatta’s hearing by Trial Chamber (B), but before the Appeals Chamber reversed Mr Ruto’s Trial Chamber (A) decision, the issue of judicial economy was raised by the prosecution. Their contention was that Trial Chamber (B) should in fact wait for the Appeals Chamber’s final decision, but the Chamber dismissed the argument and proceeded with the decision at hand. This article contends that the Court missed a real opportunity to place judicial economy within the human rights discourse, particularly in the light of Article 21(3) of the Rome Statute of the International Criminal Court.

The Prosecutor’s Request Concerning the Rohingya Deportation to Bangladesh: Certain Procedural Questions

2018 ◽  
Vol 31 (4) ◽  
pp. 981-1002 ◽  
Author(s):  
MICHAIL VAGIAS
Keyword(s):  
International Criminal Court ◽  
International Criminal ◽  
Trial Chamber ◽  
Criminal Court ◽  
Territorial Jurisdiction ◽  
The Right ◽  
First Time

AbstractOn 9 April 2018, the Prosecutor of the International Criminal Court filed a request seeking the composition of a Pre-Trial Chamber, in order to decide whether the Court has territorial jurisdiction over the Rohingya deportation from Myanmar to Bangladesh as a crime against humanity. This filing is a first for the Court on at least two fronts; it is the first time the Prosecutor has asked the Court to interpret Article 12(2)(a) and apply qualified territoriality; it is also the first time the Prosecutor has asked for a ruling on jurisdiction under Article 19(3).This study explores certain procedural questions emerging from this request, such as the Court’s authority to decide while its jurisdiction is ‘dormant’; the function of Article 19(3) within the Rome Statute’s overall system concerning jurisdictional determinations; issuing a decision on jurisdiction, while avoiding prejudice to subsequent proceedings and without rendering meaningless the right to challenge jurisdiction under Article 19(2) of the Statute. The article accepts that the request is a step in the right direction, as it signals the Prosecutor’s determination to investigate the Rohingya crisis. However, the manner and timing of its presentation give rise to plausible claims of incompatibility with the Court’s procedural framework. Arguably, the Court may well instruct the Prosecutor to assume the risk of wasting precious resources and proceed with further investigations, pending the final determination of the jurisdictional question at a later stage.

Prosecutor v. Callixte Mbarushimana: Judgment on the Appeal of the Prosecutor Against the Decision of Pre-Trial Chamber I of 16 December 2011 Entitled “Decision on the Confirmation of Charges” (Int'l Crim. Ct.)

2013 ◽  
Vol 52 (2) ◽  
pp. 417-439 ◽  
Author(s):  
Ruth Frolich
Keyword(s):  
International Criminal Court ◽  
Rome Statute ◽  
International Criminal ◽  
Democratic Republic ◽  
War Crimes ◽  
Trial Chamber ◽  
Criminal Court ◽  
Crimes Against Humanity ◽  
Republic Of The Congo

On May 30, 2012, the Appeals Chamber (Chamber) of the International Criminal Court (ICC) voted unanimously to dismiss the appeal of the Prosecution against the decision of the Pre-Trial Chamber not to confirm the charges against the alleged Congolese warlord Callixte Mbarushimana. The Prosecution had alleged Mbarushimana was criminally responsible under Article 25(3)(d) of the Rome Statute (Statute) for crimes against humanity and war crimes committed by members of the Forces Démocratiques de Libération du Rwanda (FDLR) in the Kivu provinces of the Democratic Republic of the Congo. The Prosecution had appealed the Pre-Trial Chamber’s decision on three separate issues, all of which were rejected.

The International Criminal Court Appeals Chamber: Prosecutor V. Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali

2012 ◽  
Vol 51 (1) ◽  
pp. 17-43 ◽  
Author(s):  
Elizabeth Stubbins Bates
Keyword(s):  
International Criminal Court ◽  
International Criminal ◽  
Trial Chamber ◽  
Criminal Court ◽  
Crimes Against Humanity ◽  
The Government ◽  
Election Violence

On August 30, 2011, a majority of the Appeals Chamber of the International Criminal Court (‘‘ICC’’) rejected the appeal of the Government of Kenya to the earlier admissibility decision of Pre-Trial Chamber II in the case of Prosecutor v. Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali, one of two cases arising from the ICC’s investigations into crimes against humanity committed during the 2007 post-election violence in Kenya.

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