International Criminal Law

La Corte penale internazionale, l'indagine sui crimini commessi in Libia e il mandato d'arresto nei confronti di Gheddafi

by Marina Mancini

Diritti umani e diritto internazionale, 2011, n. 3

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

by Marina Mancini

Nordic Journal of International Law, 2012, no. 2

At the first Review Conference of the Rome Statute of the International Criminal Court, which was held in Kampala in... more 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.

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

by Marina Mancini

Nordic Journal of International Law, 2012, no. 2

At the first Review Conference of the Rome Statute of the International Criminal Court, which was held in Kampala in... more 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.

Fighting Terror Through Justice: Implementing the IGAD Framework for Legal Cooperation Against Terrorism

by Matthew Schwartz

Co-authored with the Task Force on Legal Cooperation against Terrorism in the IGAD Subregion.

East Africa and the Horn face a number of transnational security threats, including terrorism, transnational crime,... more East Africa and the Horn face a number of transnational security threats, including terrorism, transnational crime, and piracy. In recent years, particularly following the July 2010 attacks in Kampala, al-Shabaab has been increasingly viewed as a threat not only to Somalia, but to the greater subregion. Tourism has declined and shipping costs have risen due to the threat of piracy from Somalia. Lawless pockets where government reach is weak, together with rampant corruption, have turned the region into a major transit point for black market financial flows and various forms of illicit trafficking.

Terrorism and transnational crime increasingly threaten security in the subregion of the Intergovernmental Authority on Development [IGAD]. Because of their transnational nature, no individual IGAD member state will single-handedly be able to deal effectively with these threats. As the IGAD Security Strategy adopted in December 2010 makes clear, effective cooperation will be crucial to winning the struggle against terrorism and to ensuring that other forms of transnational crime do not similarly jeopardize the IGAD subregion’s growth, prosperity, and stability.

Limited Charges and Limited Judgments by the International Criminal Court – Who Bears the Greatest Responsibility?

by Carla Ferstman

This article considers the limited charges and resulting limited judgment in the Lubanga case at the International... more This article considers the limited charges and resulting limited judgment in the Lubanga case at the International Criminal Court. It considers what further steps the Pre-Trial and Trial Chambers may have taken to ensure the full 'establishment of the truth', in the absence of new charges, or with a view to encouraging the Prosecutor to amend charges.

Advancing International Criminal Law. The Special Court for Sierra Leone Recognizes Forced Marriage as a ‘New’ Crime against Humanity

by Micaela Frulli

published in Journal of International Criminal Justice 6 (2008), 1033-1042

The Appeals Chamber of the Special Court for Sierra Leone (SCSL) in Brima, Kamara and Kanu recognized that forced... more The Appeals Chamber of the Special Court for Sierra Leone (SCSL) in Brima, Kamara and Kanu recognized that forced marriages may amount to crimes against humanity, falling under the sub-heading of ‘other inhumane acts’. This decision is to
be welcomed because the practice of forced marriage is not adequately described by existing categories of sexual crimes. As forced conjugality results in particular psychological and moral suffering for the victims, it is argued that this heinous
practice may be more appropriately pursued as a separate crime, under a definition that describes the entirety and complexity of the criminal conduct. The SCSL decision
may also be important for its impact on the activities of the International Criminal Court (ICC). The widespread practice of forced marriage presently features in all the situations being investigated by the ICC and the inclusion in the ICC
Statute of the offence of forced marriage as a separate crime against humanity could be discussed during the Review Conference in 2009.

Beyond Exclusion: Assessing Palestinian Refugees? Struggle for Protection and Recognition and their Potential Contribution to a Peace Settlement

by Jeff Handmaker

Chapter in K. van der Borght, K. Byttebier & C. Mackenzie (2011) (Eds.), Imagining a Shared Future: Perspectives on Law, Conflict and Economic Development in the Middle East (pp. 197-222). London: Cameron May.

Palestinian refugees’ long-fought struggle for legal protection, return and restitution relates to a broader political... more Palestinian refugees’ long-fought struggle for legal protection, return and restitution relates to a broader political struggle for individual and collective recognition as key civic stakeholders in the Palestinian people’s struggle for self-determination. This paper briefly sketches the turbulent history that has resulted in a political impasse and the largest group of forcibly displaced persons in the world. It also assesses the resulting ‘protection gap’ for these refugees and makes reference to recent developments in international refugee law and forced migration discourses that provide new legal protection possibilities. The paper concludes that invoking international law obligations in political and popular discourse and involving Palestinian refugees as key civil society stakeholders, play both a key role in the legal protection of refugees and in offering greater prospects for a peaceful resolution of the impasse.

Universal Jurisdiction: State of Affairs and Ways Ahead A policy paper

by Jeff Handmaker

Zegveld, L. & Handmaker, J.D. (2012). Universal jurisdiction: state of affairs and ways ahead. A policy paper. (ISS working papers series. General series532 ). The Hague: International Institute of Social Studies.

On 17 September 2010, the International Institute of Social Studies (ISS), Leiden University and ICCO organised an... more On 17 September 2010, the International Institute of Social Studies (ISS), Leiden University and ICCO organised an expert meeting at the ISS on universal jurisdiction (UJ). The meeting was chaired in the morning by Professor John Dugard1 and in the afternoon by Professor Karin Arts2. The aim of the meeting was to analyse the possibilities and challenges faced in universal jurisdiction cases, and more broadly, the capacity of national legal jurisdictions to prosecute and/or otherwise hold accountable individuals and companies for (complicity in) international crimes. To that end, the meeting brought together academics and practitioners who have been working in the area of international criminal law and individual and corporate accountability.

This policy paper is a report of the September 2010 meeting, which consisted of two sessions. The morning session covered Dutch jurisprudence concerning universal jurisdiction and focussed on specific cases. The afternoon session highlighted political and social themes and took a more comparative approach. Although the outcomes of the meeting were embedded in the Dutch context, they also reached out to other jurisdictions.

We wish to add a caveat that this policy paper is very much work-in- progress and draws on our personal reflections and impressions from this meeting. It is by no means intended as a verbatim record of the meeting. This policy brief is intended to stimulate critical discussion on this important issue and therefore no attribution should be implied or assumed on the part of any contributor to this report or the institutions they are affiliated with, including the principal contributors. We nevertheless welcome your feedback and further contributions.

Personal Immunity of President Omar Al Bashir: An Analysis Under Customary International Law and Security Council Resolution 1593

by Dan Terzian

Amnesties with Shelf Lives? Problematizing the Use of Amnesties in Transitional Justice

by Mark Kersten

MSc International Relations Dissertation and paper presented at ISA 2011 in Montreal

Abstract
Have we seen the end of amnesties? Do amnesties eventually expire, resulting in statesconfronting their... more Abstract
Have we seen the end of amnesties? Do amnesties eventually expire, resulting in statesconfronting their pasts? Despite an increased expectation that past atrocities should be prosecutedthrough human rights trials, states continue to grant amnesties for human rights violations and pastamnesties often remain in place. Nevertheless, the practice of granting amnesties been exposed tonumerous challenges in recent years. This paper explores two cases, those of Spain and Argentina,where amnesties were issued but the past was nonetheless revisited. How can we explain this phenomenon? The paper argues that these developments are not the result of an international normregarding a duty to prosecute. State practice suggests that such a norm is far from crystalized.Revisiting the past, the paper argues, is better explained by the context-specific dynamics within statesemerging from violent political conflict and authoritarianism. States are more likely to confront their past when their fear that doing so will result in a return to violence and instability dissipates. They mayalso be more likely to demand a confrontation with the past, not through prosecution, but through adesire to know the truth and in demanding a 'right to truth'. This poses a serious quandary for Transitional Justice researchers concerning the sustainability of amnesties: states may continue to grantamnesties but eventually seek to confront their past. Only a highly contextualized approach to cases of transitional justice which looks beyond legalistic reasoning can understand the decisions and dilemmasinvolved in confronting the past.

The International Criminal Court against Entrenching Impunity: The African Tenth Anniversary View

by Lucky Mgimba

Published by the St. Augustine University - Centre for International Law- DIRECT ACCESS DENIED

For most of the 20th century the International legal community with Africa Inclusive worked towards the creation of a... more For most of the 20th century the International legal community with Africa Inclusive worked towards the creation of a permanent international criminal court. Upon which the goal of establishing a permanent institution to prosecute the most egregious violations of international criminal law culminated with the formation of the International criminal Court (ICC). As it enters its Tenth anniversary, the ICC vested with the power to prosecute the four categories of offences: the crime of Genocide, Crimes against Humanity, War Crimes, and the Crime of Aggression which are in essence the most serious crimes of international concern was indeed a reverie sprang into action.
However underneath its establishment the ICC was entrenched with the aspirations of Archiving: justice for all, Ending Impunity, Ending Conflicts, Remedying deficiencies of ad hoc tribunals, Taking over when national criminal justices are unwilling or unable to act, but most of all Deterring future war crimes and other violations contrary to the Rome Statute. It’s upon the extent of the fulfillment and challenges of these raisons d’être in the African tenth Anniversary view that this article tends to analyze.

Review of ‘International Justice in Rwanda and the Balkans: Virtual Trials and the Struggle for State Cooperation’ by Victor Peskin.

by Kirsten Ainley

Review of ‘International Justice in Rwanda and the Balkans: Virtual Trials and the Struggle for State Cooperation’ by Victor Peskin. New York: Cambridge University Press. 2008. 272pp. £17.99. ISBN: 978 0 521 12912 1
Published in International Affairs, 2010, 86(4) pp990-991.

Transitional Justice in Cambodia: The Coincidence of Power and Principle

by Kirsten Ainley

For publication in Renee Jeffery ed. Transitional Justice in the Asia-Pacific (under review).

More than thirty years after the Khmer Rouge was responsible for the deaths of over one and a half million people, and... more More than thirty years after the Khmer Rouge was responsible for the deaths of over one and a half million people, and after two amnesties for Khmer Rouge crimes were enacted in Cambodia, the Extraordinary Chambers in the Courts of Cambodia (ECCC) has been established, ostensibly to help heal the trauma of victims of Khmer Rouge atrocities and bring about justice. This chapter outlines the key features of the ECCC and assesses its successes and failures according to its own mandate. It goes on, however, to argue that accepting the restricted mandate of the court is a mistake, as it prevents a full discussion of accountability in Cambodia. I argue that the establishment of the ECCC represents less a victory for victims or for advocates of transitional justice than it is a reflection of the interests of the Cambodian government and those international actors who collaborated with a series of repressive regimes in Cambodia, including the current Hun Sen regime. By agreeing to a limited regime of transitional justice, the government has diverted diplomatic and donor attention away from allegations of corruption and human rights abuses in the present, towards its role as ‘saviour of the nation’ in the past. The international community is keen (now) to promote justice in Cambodia, and has significant resources available with which to incentivise or coerce domestic actors to allow a fair and independent court, but seems unwilling to use them. Unfortunately, international principle has coincided with domestic power in a way that does little for the victims of atrocities in whose name the ECCC was established.

Responsibility for Atrocity: Individual Criminal Agency and the International Criminal Court

by Kirsten Ainley

Published in John Parry ed. Evil, Law and the State: Perspectives on State Power and Violence, Amsterdam & New York, Rodopi, 2006, ISBN: 978-9042017481.

The chapter is concerned with the shift in international political and legal discourse away from assigning... more The chapter is concerned with the shift in international political and legal discourse away from assigning responsibility for political violence to states and towards assigning criminal responsibility to individuals, in particular with the establishment, in 1998, of the International Criminal Court (ICC). This new Court is premised on assumptions that there are universal moral standards which apply to human behaviour, and that through the assignation of responsibility to individuals and the infliction of punishment according to these standards, the international criminal justice system (ICJS) can deter crime, end conflict and bring about justice. The chapter takes seriously these goals, but questions the ability of the system to achieve them – and raises the question of whether the ICJS may in fact encourage atrocity by enabling state violence. It examines the move from state civil agency to individual criminal agency within international legal discourse, the limited and internally contradictory conception of international agency necessary to sustain this move and the uneasy relationship between morality, politics and law conceived by the framers of international criminal law, before considering the implications of the new system.

Individual Agency and Responsibility for Atrocity

by Kirsten Ainley

Published in Renee Jeffery ed. Confronting Evil in International Relations Palgrave Macmillan, 2008, ISBN: 978-0230602632

The chapter traces the philosophical and legal history of the contemporary concept of the evil individual in... more The chapter traces the philosophical and legal history of the contemporary concept of the evil individual in International Relations. The individual as an actor has become increasingly important in both the practice and study of international relations since 1945, and there has been a marked shift in international political and legal discourse away from assigning responsibility to states for extremes of political violence or atrocity, and towards assigning responsibility – specifically criminal responsibility – to individuals. Those accused of atrocities (now framed as international crimes) are often labeled as evil. However, the concept of the ‘international’ individual agent is highly problematic, and the chapter explains why this is so, before considering the political implications of the rise of the evil individual. These implications include the legitimation of state violence through the categorization of all intolerable or “atrocious” violence as the action of deviant individuals, the temptation to understand conflict in dualist terms of “good” and “evil”, and a blindness towards instances of great suffering which cannot be framed as caused by intentional human action. The position also gives apparent support to the mistaken assumption that evil cannot be predicted or prevented, only punished after it has occurred.

The International Criminal Court on Trial

by Kirsten Ainley

Published in Cambridge Review of International Affairs, 2011, 24 (3). pp. 309-333.

This article assesses the structure and operation of the ICC by setting out a case for the defence of the Court, a... more This article assesses the structure and operation of the ICC by setting out a case for the defence of the Court, a case for its prosecution and a verdict. Defenders of the Court suggest it has had a positive impact because: it has accelerated moves away from politics and towards ethics in international relations; it goes a long way towards ending impunity; it is a significant improvement on the previous system of ad hoc tribunals; it has positive spill-over effects onto domestic criminal systems; and because the courage of the Prosecutor and Trial Judges has helped to establish the Court as a force to be reckoned with. Opponents of the Court see it as mired in power politics, too reliant on the UNSC and on state power to be truly independent; failing to bring peace and perhaps even encouraging conflict; and starting to resemble a neo-colonial project rather than an impartial organ of justice. The verdict on the Court is mixed. It has gone some way to ending impunity and it is certainly an improvement on the ad hoc tribunals. However it is inevitably a political body rather than a purely legal institution, its use as a deterrent is as yet unproven and the expectation that it can bring peace as well as justice is unrealistic.

Excesses of Responsibility: the Limits of Law and the Possibilities of politics.

by Kirsten Ainley

Published in: Ethics and International Affairs, 2011 25 (4) pp 407-431

Since 1945 responsibility for atrocity has been individualized, and international tribunals and courts have been given... more Since 1945 responsibility for atrocity has been individualized, and international tribunals and courts have been given effective jurisdiction over it. This article argues that the move to individual responsibility leaves significant ‘excesses’ of responsibility for war crimes unaccounted for. When courts do attempt to recognize the collective nature of war crime perpetration, through the doctrines of ‘command responsibility’, ‘joint criminal enterprise’ and ‘state responsibility’, the application of these doctrines has, it is argued, limited or perverse effects. The article suggests that instead of expecting courts to allocate excesses of responsibility, other accountability mechanisms should be used alongside trials to allocate political (rather than legal) responsibility for atrocity. The mechanisms favored here are ‘Responsibility and Truth Commissions’, i.e. well-resourced non-judicial commissions which are mandated to hold to account individual and collective actors rather than simply to provide an account of past violence.

Tesina 2012 - Abstract, summary, index of authorities

by Margherita Melillo

Constructions of Legitimacy, the Charles Taylor Trial

by Tim Meijers

The Impact of the Iraq Communication of the Prosecutor of the International Criminal Court on War Crimes Admissibility and the Interests of Victims

by Melanie O'Brien

Published in University College Dublin Law Review, 2007 Symposium Edition

In 2006 the Prosecutor released two statements addressing
communications received by his Office concerning... more In 2006 the Prosecutor released two statements addressing
communications received by his Office concerning allegations of crimes committed in Venezuela and Iraq. The February 2006 communication of the Prosecutor discusses allegations received by the Office of the Prosecutor concerning genocide, crimes against humanity, and war crimes in Iraq. This Article will address the Prosecutor's decision concerning these alleged war crimes; in particular, allegations concerning wilful killing or inhuman treatment of civilians. The crimes alleged include  mistreatment of prisoners, and multiple cases of unlawful
executions. The Prosecutor decided not to initiate an investigation into the alleged war crimes. Although he ultimately had reason to decide this way under the principle of complementarity, this Article will contend that the reasoning used in the decision was flawed, and many issues that should have been considered were not. Issues not addressed include the interests of victims, the interests of justice, and a broad consideration of the gravity of the alleged offences. The absence of such considerations from the communication has produced a dubious precedent in decisions concerning war crimes admissibility and the interests of victims in proceedings before the Court. Such elements should not be by-passed in future considerations by the Prosecutor of whether to initiate an
investigation.