scholarly journals Case Admissibility at the International Criminal Court

2015 ◽  
Vol 14 (2) ◽  
pp. 305-317 ◽  
Author(s):  
Tomas Hamilton
Keyword(s):  
International Criminal Court ◽  
Rome Statute ◽  
International Criminal ◽  
Criminal Court ◽  
Step Test ◽  
Legal Certainty ◽  
The Core ◽  
Future Challenges

The existing jurisprudence of the icc establishes a two-step test for determining challenges to the admissibility of a case under Article 17 of the Rome Statute, now further solidified by an Appeals Chamber judgment in Simone Gbagbo. Notably, this is an area of the jurisprudence that does not suffer from excessive fragmentation. The Court has consistently required “substantially the same conduct” for a finding of parity between its own case and the case under investigation or prosecution by domestic authorities. Different outcomes in Al-Senussi and Gaddafi are attributable to factual differences, leaving intact the fundamental approach of the Court to the “inability” and “unwillingness” aspects of complementarity. Although novel fact patterns may pose future challenges to the coherence of this approach, the core principles of case admissibility are now well established, increasing legal certainty for States and individuals who seek to challenge the admissibility of cases before the Court.

scholarly journals Violations of the laws or customs of war under military law: comparative analysis of international and internal legislation of Ukraine

2021 ◽  
pp. 8-18
Author(s):  
Oksana Cherviakova ◽  
Vladyslav Mekheda
Keyword(s):  
Comparative Analysis ◽  
International Criminal Court ◽  
Rome Statute ◽  
International Criminal ◽  
War Crimes ◽  
Criminal Court ◽  
Legal Order ◽  
The Core ◽  
International Legal Order ◽  
Military Law

This paper addresses the question of the criminalization of war crimes, which are compared at the international and internal legislative level under military law. Considering current threats to the international legal order and security system, justice and defence sector actors, military lawyers and research fellows in military law are faced with the problems of the concept of responsibility for the most serious crimes in the world. The adoption of the Rome Statute of the International Criminal Court in 1998 raises the question of the internal legislation validity. The states Parties to International Criminal Court should revise the established conceptual approaches of responsibility for war crimes. The comparative analysis was made of the core and international military law.

L’élément politique des crimes contre l’humanité: État des lieux de la jurisprudence de la Cour pénale internationale

2015 ◽  
Vol 52 ◽  
pp. 223-259
Author(s):  
YVES HAMULI KABUMBA
Keyword(s):  
International Criminal Court ◽  
Rome Statute ◽  
International Criminal ◽  
Case Law ◽  
Criminal Court ◽  
Organizational Policy ◽  
The Core ◽  
Legal Literature ◽  
Legal Texts ◽  
Preparatory Work

AbstractTo be characterized as a crime against humanity under Article 7 of the Rome Statute of the International Criminal Court (ICC), the acts listed must have been committed as part of a systematic or widespread attack in furtherance of a State or organizational policy. Both variants of the attack, that is to say its “systematic” or “generalized” nature are alternative requirements. However, some of the legal literature since the preparatory work to draft the Rome Statute of the International Criminal Court in 1998 considers that the requirement of a policy makes both variants cumulative, hence creating a conflict between Article 7(1) and Article 7(2) of the Rome Statute. The controversy over the content and the legal scope of the concept of policy is worsened by the absence of definitions of the notions of policy and systematic attack in the core legal texts of the ICC. What definition have Chambers of the ICC given to the notion of policy? What sources have Chambers relied on? Does ICC case law provide tools to avoid possible conflict between Article 7(1) and Article 7(2) of the Rome Statute? These are the issues this study attempts to examine.

A Brand New Definition for the Crime of Aggression: The Kampala Outcome

2012 ◽  
Vol 81 (2) ◽  
pp. 227-248 ◽  
Author(s):  
Marina Mancini
Keyword(s):  
International Law ◽  
International Criminal Court ◽  
Rome Statute ◽  
International Criminal ◽  
Case Law ◽  
Criminal Court ◽  
Customary International Law ◽  
The Core ◽  
Definition Of

At the first Review Conference of the Rome Statute of the International Criminal Court, which was held in Kampala in 2010, the negotiations on the crime of aggression resulted in a complex package, at the core of which are the definition of the crime and the conditions for the exercise of the Court’s jurisdiction over it. This article examines the definition of the crime of aggression, as enshrined in the new Article 8 bis, considering the various parts of that package as well as the existing practice and case law. On the basis of this analysis, it evaluates the relevance of the Kampala definition to the evolution of customary international law.

Part 3 General Principles of Criminal Law: Principes Généraux Du Droit Pénal, Art.33 Superior orders and prescription of law/Ordre hiérarchique et ordre de la loi

2016 ◽  
Author(s):  
Schabas William A
Keyword(s):  
Criminal Law ◽  
International Criminal Court ◽  
Rome Statute ◽  
International Criminal ◽  
Criminal Court ◽  
Legal Obligation ◽  
The Core ◽  
International Criminal Tribunals ◽  
Administration Of Justice ◽  
Article 5

This chapter comments on Article 33 of the Rome Statute of the International Criminal Court. Prior to the adoption of article 33 of the Rome Statute, those who established international criminal tribunals contented themselves with a blanket prohibition on the defence of superior orders. However, article 33 declared that superior orders is a defence when three conditions are met: the accused must be under a legal obligation to obey orders of a government or superior; the accused must not know that the order was unlawful; and the order must not be manifestly unlawful. To date, the defence of superior orders appears to have been invoked in proceedings at the International Criminal Court only once, in a case involving charges under article 70 relating to the administration of justice and not to one of the core crimes listed in article 5 of the Statute.

The Katanga Complementarity Decisions: Sound Law but Flawed Policy

2010 ◽  
Vol 23 (2) ◽  
pp. 363-374 ◽  
Author(s):  
SUSANA SÁCOUTO ◽  
KATHERINE CLEARY
Keyword(s):  
International Criminal Court ◽  
Rome Statute ◽  
International Criminal ◽  
Criminal Court ◽  
The State ◽  
Selection Strategy ◽  
National System ◽  
The Core ◽  
Case Selection ◽  
The Subject

AbstractOn 25 September 2009, the Appeals Chamber of the International Criminal Court (ICC) issued a seminal decision on the subject of complementarity in the case Prosecutor v. Germain Katanga. The outcome of the Chamber's decision is that, even if a state has initiated an investigation or prosecution against an individual, the ICC may prosecute that individual for the same crimes or even a more selective range of crimes, so long as the state is willing to close the ongoing investigation or prosecution at the request of the ICC Prosecutor. While this decision is defensible under the language of the Rome Statute, this article concludes that, absent vigilance on the part of the ICC's Office of the Prosecutor, the decision could produce consequences inconsistent with the principle that the ICC is intended to act as a court of last resort. These potential consequences, in turn, suggest that the prosecution's policy of ‘positive complementarity’ – that is, encouraging genuine national proceedings whenever possible – should be at the core of its case selection strategy. At the same time, in those instances when the ICC prosecution determines that, despite activity by a national system with respect to a particular case, it is appropriate for the ICC to take over the case, the prosecution should clearly and publicly explain the factors that led to its decision.

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.

scholarly journals The International Criminal Court and Sexual Violence: Between Aspirations and Reality

2021 ◽  
Vol 22 (5) ◽  
pp. 878-893
Author(s):  
Tanja Altunjan
Keyword(s):  
Sexual Violence ◽  
Conceptual Understanding ◽  
International Criminal Court ◽  
Rome Statute ◽  
International Criminal ◽  
Legal Framework ◽  
Criminal Court ◽  
Full Potential ◽  
Sexual Crimes ◽  
Track Record

AbstractThe adoption of the Rome Statute of the International Criminal Court (ICC) was widely lauded as a success with regard to the recognition and potential prosecution of conflict-related sexual violence. More than twenty years later, however, many observers are disillusioned with the ICC’s dire track record concerning the implementation of its progressive legal framework. In many cases, the Court and particularly its Prosecutor have been criticized for failing to adequately address and prioritize sexual violence, culminating in only a single final conviction since 2002. Nevertheless, the ICC’s emerging practice shows progress with regard to the conceptual understanding of conflict-related sexual violence and the realization of the Statute’s full potential in ensuring accountability for sexual crimes. Taking into account the evolving jurisprudence, the Article explores the persisting challenges and the perceived gap between aspirations and reality regarding the prosecution of sexual violence at the ICC.

scholarly journals Tilting at windmills: Reparations and the International Criminal Court

2021 ◽  
pp. 1-21
Author(s):  
Luke Moffett ◽  
Clara Sandoval
Keyword(s):  
Transitional Justice ◽  
International Criminal Court ◽  
Rome Statute ◽  
International Criminal ◽  
Positive Impact ◽  
Criminal Court ◽  
International Human Rights Law ◽  
Human Rights Law ◽  
International Human Rights ◽  
International Crimes

Abstract More than 20 years on from the signing of the Rome Statute, delivering victim-centred justice through reparations has been fraught with legal and practical challenges. The Court’s jurisprudence on reparations only began to emerge from 2012 and struggles to find purchase on implementation on the ground. In its first few cases of Lubanga, Katanga, and Al Mahdi the eligibility and forms of reparations have been limited to certain victims, subject to years of litigation, and faced difficulties in delivery due to ongoing insecurity. This is perhaps felt most acutely in the Bemba case, where more than 5,000 victims of murder, rape and pillage were waiting for redress, and the defendant was not indigent, but where he was later acquitted on appeal, thereby extinguishing reparation proceedings. This article critically appraises the jurisprudence and practice of the International Criminal Court (ICC) on reparations. It looks at competing principles and rationales for reparations at the Court in light of comparative practice in international human rights law and transitional justice processes to consider what is needed to ensure that the ICC is able to deliver on its reparations mandate. An underpinning argument is that reparations at the ICC cannot be seen in isolation from other reparation practices in the states where the Court operates. Reparative complementarity for victims of international crimes is essential to maximize the positive impact that the fulfilment of this right can have on victims and not to sacrifice the legitimacy of the Court, nor quixotically strive for the impossible.

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