AbstractAmid pressure to increase the efficiency and effectiveness of the International Criminal Court (ICC), work has progressed on the development of a set of performance indicators for the ICC. This article argues that performance indicators play into tensions that underpin the international criminal justice process at the ICC, in particular between expeditiousness, on the one hand, and fairness

Just as the internal combustion engine revolutionized warfare in the early twentieth century, artificial intelligence is shaping warfare in the Digital Age. Fuelled by data rather than gasoline, artificial intelligence (AI) derivative technologies are driven by innovation in both the military and civilian sectors. Today’s defence scientists and engineers, like their predecessors, develop physical equipment

Within the broader context of the problems raised by the interaction between humans and machines in weaponry and targeting, this paper deals with the specific issue of the mens rea required to establish responsibility for the war crime of indiscriminate attacks, in the context of attacks performed with semi-autonomous weapons or with the support of artificial intelligence (AI) in targeting decision-making

The Office of the Prosecutor’s preliminary examination into the Situation in Afghanistan came to an end with the Appeals Chamber approving its request for authorization of an investigation. In doing so it overturned the decision of the Pre-Trial Chamber, which for the first time in the International Criminal Court’s history had invoked the criterion of ‘interests of justice’ to deny the request. Both

AbstractIn December 2019, the Prosecutor of the International Criminal Court concluded her preliminary examination into the situation in Palestine, determining there is a reasonable basis to initiate an investigation into the situation. Instead of doing so, she first decided to seek a ruling from the Pre-Trial Chamber on the scope of the Court’s territorial jurisdiction, specifically aimed at confirming

This symposium on ‘Litigating Palestine before the International Criminal Court’ reflects on recent critical developments, following the conclusion of the preliminary examination into the ‘Palestine situation’ before the Court.11 After five years of analysis, on 20 December 2019, the Prosecutor found that there is a reasonable basis to start an investigation into the ‘situation in Palestine’,22 pursuant

AbstractDoes the potential investigation into Palestine by the International Criminal Court (ICC) threaten the chances of a lasting ‘peace’ between Israel and Palestine? This article endeavours to answer that question and critically assesses claims that the Court could undermine peace in the Middle East. I first examine the key claims made in the so-called ‘peace versus justice’ debate. I then outline

AbstractIn her request pursuant to Article 19(3) of the ICC Statute for a ruling on the territorial jurisdiction of the International Criminal Court (ICC) in Palestine, the Prosecutor of the ICC took the view that the Occupied Palestinian Territory corresponds to the West Bank, including East Jerusalem, and Gaza. The article discusses this finding from a twofold perspective. First, it investigates

AbstractThis article examines two propositions relating to the role of the right to self-determination with regard to statehood, as put forward by the Office of the Prosecutor of the International Criminal Court (ICC) in its a request pursuant to Article 19(3) of the ICC Statute, for a ruling on the Court’s territorial jurisdiction in Palestine. One proposition is that the right to self-determination

AbstractAmid pressure to increase the efficiency and effectiveness of the International Criminal Court (ICC), work has progressed on the development of a set of performance indicators for the ICC. This article argues that performance indicators play into tensions that underpin the international criminal justice process at the ICC, in particular between expeditiousness, on the one hand, and fairness

Civilians who bring claims against powerful states or their officials, for harm resulting from the conduct of war, face challenges that no single legal procedure can possibly overcome. Certain codified international laws outline specific protections for civilians, but this protective infrastructure stands in the shadow of two creatures of uncodified international customary law: state sovereignty and

Since COVID-19 was declared a pandemic by the World Health Organization, the International Criminal Court (ICC) has taken a series of measures to ensure the continuation of its activities. To this effect, the Court has adjusted its proper administration both in Headquarters and Country Offices by moving to (partial) virtual offices mode. In so doing, the ICC has striven to ensure that staff well-being

AbstractColonial injustice has suffered from the effects of amnesia in international law. Law has served as an instrument to justify injustice in the past and to silence its contemporary effects. The rise of the ‘Black Lives Matter’ movement, TWAIL scholarship and the current debate on racism, slavery and return of cultural colonial objects illustrate the ongoing effects of colonialism. Some seemingly

AbstractIn 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

AbstractEnding impunity cannot be achieved by international criminal tribunals alone. Therefore, it is important that states will take a significant part in these efforts. The principle of complementarity is aimed to incentivize states to conduct domestic criminal proceedings against alleged perpetrators of international crimes. This article calls for a broader examination of the way in which the principle

AbstractAn unprecedented number of states have sought to act as amici curiae in the proceedings before the Pre-Trial Chamber of International Criminal Court (ICC) considering the Court’s jurisdiction over alleged crimes committed in Palestine. Given the centrality of the issue of Palestinian statehood to this jurisdictional question, these proceedings raise complex and novel questions of international

AbstractOne of the traditional criteria for statehood under the Montevideo Convention is that an entity possesses an ‘effective government’. Against this backdrop, this article discusses the impact of belligerent occupation on Palestine’s ability to possess an effective government, and thus fulfil the criteria for statehood. It argues that, as a matter of law, the requirement of effective government

The President of the United States of America (USA) has taken what is probably an unprecedented decision: Fatou Bensouda, the chief prosecutor of the first permanent international criminal court in the history of law, a Gambian national, and Phakiso Mochochoko, another high-ranking member of the Court’s Office of the Prosecutor, a national of Lesotho, have recently been placed on the ‘black list’ of

Daniele Perissi and Karen Naimer, Achieving Justice for Child Survivors of Conflict-related Sexual Violence in the Democratic Republic of the Congo: The Kavumu Case. doi.org/10.1093/jicj/mqaa008, published 29 June 2020.

AbstractIn the admissibility framework of the Rome Statute, the Prosecutor’s discretion as to whether to initiate an investigation into a situation includes the application of the open-textured requirement of ‘sufficient gravity’ specified in Article 17(1)(d). Pre-Trial Chamber oversight is designed to discipline the exercise of this discretion, but, in the absence of statutory guidance, the Pre-Trial

AbstractWhile the question of whether international criminal courts and tribunals (ICTs) ought to write historical narratives of armed conflicts is an old one, it has gained renewed relevance in the context of the recent turn to history in international criminal law and the minimal attention paid to historical context in the first judgment of the International Criminal Court. The ‘proper’ place of

AbstractOn 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

AbstractThe appellate stage of the proceedings before the Extraordinary Chambers in the Courts of Cambodia (ECCC) has received more limited attention than its pre-trial and trial process. In order to partially remedy this gap, this article highlights the unique features of the ECCC appellate system and how the Supreme Court Chamber (SCC) has given them effect in practice. Firstly, I consider the SCC’s

AbstractThe present article seeks to explore and discuss to what extent the position of the defence in the course of investigations before the Extraordinary Chambers in the Courts of Cambodia (ECCC) is in conformity with fair trial norms and sufficiently robust to ensure high-quality fact-finding. After recalling the general features and structure of the ECCC proceedings at the pre-trial stage, the

AbstractThis article examines claims that the Pre-Trial Chamber (PTC) of the Extraordinary Chambers in the Courts of Cambodia (ECCC) has been rendered dysfunctional in Cases 003 and 004, based on a qualitative analysis of PTC jurisprudence. It finds that the PTC has displayed signs of an inability to carry out both its core function and extended mandate in Cases 003 and 004, suggesting that the PTC

AbstractThe Extraordinary Chambers in the Courts of Cambodia (ECCC) has made normative decisions as to the probative value of different categories of evidence and the manner in which the evidentiary record should be assessed. Defying expectations that the ECCC’s inquisitorial model would render it quite unique in relation to matters of evidence and proof, this article argues that many of the key epistemological

AbstractEvery international and hybrid war crimes court has attracted a measure of controversy, but none more than the Extraordinary Chambers in the Courts of Cambodia (ECCC). While myriad aspects of the ECCC’s record are crucial to its legacy, this article explores one question of overarching importance: whether its performance has justified a key risk the UN assumed when it agreed to support the

AbstractDuring non-international armed conflict, war crimes often go unpunished in areas where state authorities are unable to enforce the law. While states are under a customary law obligation to investigate and prosecute war crimes committed on their territory or by their nationals, the Customary International Humanitarian Law Study of the International Committee of the Red Cross has not found that

AbstractIn this short essay, I will argue that the ‘civilian population’ requirement in crimes against humanity (CAH) provisions (e.g. Article 7(1) ICC Statute) must either be radically restricted by way of a teleological (purpose-based) interpretation or — even better — abolished in future CAH provisions. While the traditional International Humanitarian Law approach certainly needs to be adjusted

AbstractThis article discusses a number of substantive law developments at the Extraordinary Chambers in the Courts of Cambodia (ECCC) after the issuance of the trial judgment in Case 002/02 against Nuon Chea and Khieu Samphan. It focuses on three themes emblematic of the Khmer Rouge era’s unique set of facts: the identification of targeted groups, male victims of rape in the context of forced marriage

UN Security Council Resolution 2331 (2016) recognizes that ‘acts of sexual and gender-based violence, including when associated to trafficking in persons, are known to be part of the strategic objectives and ideology of certain terrorist groups, used as a tactic of terrorism and an instrument to increase their finances and their power through recruitment and the destruction of communities.’ In the

The slave trade prohibition is among the first recognised and least prosecuted international crimes. Deftly codified in, inter alia, the 1926 Slavery Convention, the 1956 Supplementary Convention, Additional Protocol II to the Geneva Conventions (APII), the Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR), the norm against the slave trade

This article looks at the international criminal law on hate speech that falls short of direct and public incitement to commit genocide. Using the most egregious form of hate speech that has been prosecuted as an international crime — that of direct and public incitement to genocide — as a baseline, the author analyses the legal parameters of hate speech as persecution (a crime against humanity) and

Human trafficking — a crime with enormous human cost — is mostly moneydriven. By focusing on its financial aspects, this article argues that enhancing financial investigations by making them proactive is crucial to combat this lowrisk and high-profit offence holistically. By providing insight into research carried out as of 2015 in the framework of an anti-human trafficking public–private financial

As commentators press the ICC and other internationalized criminal courts to adopt a more sensitive approach to culture-specific evidence when determining individual criminal responsibility, this article argues that important lessons may be obtained from Asian jurisdictions where courts have discussed and assessed such evidence. The Asian examples studied here highlight the possibilities and challenges

In 2019, in the case of Prosecutor v. Al Hassan, Prosecutor Bensouda sought confirmation of the first charge of gender-based persecution at the International Criminal Court (ICC). Given that no previous international tribunal had jurisdiction to prosecute persecution on ‘gender’ grounds, this was an important first step towards developing the jurisprudence on this crime. Meanwhile, the Rome Statute’s

The starvation of civilians is an all too frequent feature of armed conflict. While starvation may occur as an unintended consequence of military activities, it is also sometimes intentionally used by conflicting parties as a method of warfare. There is a broad consensus that the employment of starvation tactics during armed conflict is morally repugnant. This condemnation is reflected in many instruments

In 2018, the Independent International Fact-Finding Mission on Myanmar found that there were reasonable grounds to believe the Myanmar military had perpetrated war crimes, crimes against humanity and possibly genocide against the Rohingya people. It recommended that the Security Council refer the situation to the International Criminal Court, but that recommendation is unlikely to be acted upon. This

In September 2018, Pre-Trial Chamber I of the International Criminal Court reached a decision that could profoundly impact accountability for transnational human rights violations. In its decision, the Pre-Trial Chamber found that it has jurisdiction over the crime against humanity of deportation as it relates to the government of Myanmar’s treatment of the Rohingya ethnic group. This decision is remarkable

The article investigates the judiciary of international criminal law and its developments over time. Inspired by the sociological tools of Pierre Bourdieu and building on an original dataset, the article analyzes the judiciary of three international criminal courts (ICTY, ICC, ECCC). The focus of the analysis is how the composition of expertise in this judiciary reflects the wider power structure in

The past few years have witnessed a proliferation of universal jurisdiction proceedings in Europe, many of which concern asylum seekers suspected of committing international crimes in Syria and the wider region. Alongside the known practical challenges of such trials, these trials also raise a range of normative questions regarding inter alia the scope of universal jurisdiction and the applicable legal

Since the inception of the International Criminal Court, representatives of the Courts’ various constituent parts have repeatedly emphasised the role the court must play in vindicating the rights of atrocity crime victims. It is commonly thought that one of the best ways to achieve this goal is to ensure that trials are conducted against those individuals who are accused of committing crimes falling

In August 2018, what appears to be a draft statement to be delivered by United States Secretary of State Mike Pompeo on the persecution of the Rohingya minority in Myanmar was leaked to the press. The text suggests that the State Department was considering whether there are grounds to believe that genocide has been, or is being, committed in Myanmar and whether the State Department should issue a statement

Article 33 of the International Criminal Court Statute allows low-ranking perpetrators to - in exceptional cases - rely on the defence of superior orders. By doing so, Article 33 might be seen as an acknowledgement that within a specific context orders to commit international crimes might not always be manifest unlawful. Article 33(2), however, restricts the possibility to rely on this defence to perpetrators

This essay refracts the criminal conviction and reparations order of the International Criminal Court (ICC) in the Al Mahdi case into the much broader frame of increasingly heated public debates over the protection, removal, defacement, relocation, display and destruction of cultural heritage in all forms: monuments, artefacts, language instruction, art and literature.What might the work product of

Acquittal in international criminal law has long been disregarded by the governing bodies of the international criminal courts. However, the acquittal exposes constitutive (and constituent) components of this very body of law. The authors draw conclusions from semi-directive interviews with acquitted (and condemned) people tried by ICTR and ICTY. Their approach creates an opportunity to highlight and

International criminal law is experiencing what has been termed as a ‘critical turn’. With several states declaring their intentions to withdraw from the International Criminal Court’s constituting treaty in 2016, it seems that critique has never been more timely or necessary. The body of work roughly grouped under an approach referred to as critical approaches to international criminal law has contributed

Working on crimes against humanity, the International Law Commission (ILC) has modelled its draft articles on extradition and mutual assistance on corresponding provisions of the United Nations Conventions against Corruption and Transnational Organized Crime. Nevertheless, some provisions are clearly adapted to the special nature of crimes against humanity. This article seeks to explore how the ILC

Like the Genocide Convention, the draft articles on crimes against humanity are not confined to issues of punishment. They also, in the preamble and especially in article 4, impose an obligation of prevention. It is informed principally by the 2007 judgment of the International Court of Justice as well as be case law of international human rights tribunals. The obligation has an internal dimension

In 2017 the International Law Commission adopted 15 Draft Articles, a Draft Preamble, and a Draft Annex on Mutual Legal Assistance, comprising the nucleus of what might someday become a new global treaty on crimes against humanity. This essay examines the history of the ILC Draft and analyzes several of its major provisions in light of the existing corpus of international criminal law as well as the

This article discusses Article 6 of the International Law Commission’s (ILC) draft articles on crimes against humanity, which deals with criminalization of crimes against humanity in national law. The provision uses neutral and generic terms to describe criminal responsibility. This is appropriate for a treaty like the one which could result from the ILC articles, where it would be left to state parties

How far have we come in laying the foundations for a Convention on the Prevention and Punishment of Crimes against Humanity? The co-editors of this symposium conclude that solid groundwork has been laid and hope that the current momentum will be maintained. At the same time, they caution against a ‘rush to conclusion’ as they see room for considerable refinement of many of the proposed provisions as

This article considers primarily draft Article 12 of the ILC’s Draft Articles on Crimes Against Humanity, which address questions of victim participation and reparation, as well as the right to complain and the protection of complainants, witnesses, victims and others. In analysing the different aspects of draft Article 12, the authors outline ways in which its provisions could be strengthened. The

This article is a book review of two edited volumes: Diversification and Fragmentation of International Criminal Law edited by Larissa van den Herik and Carsten Stahn and Pluralism in International Criminal Law edited by Elies van Sliedregt and Sergey Vasiliev.

Non-compliance with requests from the International Criminal Court (ICC) for cooperation — mainly arrest warrants and orders for surrender of persons — appears to be an increasing concern. The author illustrates the cooperation model underlying the ICC Statute and highlights the limitations of what he describes as the ‘harmony approach’ which the drafters had in mind. He then shows a number of perplexing

Although the historical function of criminal courts tasked with adjudicating episodes of mass violence is well-established, the precise purpose behind narrating history within atrocity trials remains a matter of contestation. This article examines how certain domestic atrocity trials have constructed narratives of the past aligned with the nation-building aspirations of the States in which they were

This article examines relevant norms concerning trials conducted by courts established by armed non-state actors (referred to as ‘rebels’) during non-international armed conflicts. While such court ...

Atrocity crimes rage today in Iraq, Syria, Myanmar, Burundi, and Yemen. Given their potential to establish facts and promote accountability, recently opened United Nations investigations of international law violations in each of these states are thus a welcome, even if belated, development. However, these initiatives prompt questions about their designs, both in isolation and relative to each other

This article discusses the nature of the International Criminal Court’s Chambers Practice Manual as an interpretative source, in the context of a wider debate on judges as procedural lawmakers in international criminal law. As is clear from the ICC Statute, the Practice Manual should not be seen as a source of law on a par with the Statute or Rules of Procedure and Evidence, nor even does it represent

Ensuring effective and meaningful participation by large numbers of victims of international crimes continues to pose significant challenges for the International Criminal Court (ICC). This is evident in the implementation of provisions in the ICC’s Rules of Procedure and Evidence concerning the appointment of lawyers to represent victim participants. These allow the Chamber to request victims to choose