Journal of International Criminal Justice

Frodé, Karin M

doi: 10.1093/jicj/mqae048pmid: N/A

The primary justification for universal jurisdiction (UJ) is its use as a tool to end impunity for certain international crimes. It is also linked to deterrence, as perpetrators of such crimes can face, and have indeed faced, legal action when they travel or reside overseas. Yet, UJ is also the subject of concerns, including the risk of politically motivated prosecutions and the undermining of fair trial rights and legal process. This article contends that the case for UJ can be strengthened, taking as its starting point scholarship that foregrounds the experiences of diaspora communities, rather than the traditional grounding of UJ in abstract appeals to shared humanity. Building on the insights that this earlier work enables us to uncover, this article seeks to reinforce the normative case for UJ by reframing it as international solidarity with survivors of atrocity crimes. First, international solidarity, as a unity of interests in accountability and effective remedies among survivors, other members of the diaspora, states, civil society and international organizations, underlines the connectedness among different actors that play a role in UJ. Secondly, uncovering such connectedness adds to the justifications for UJ the need to rebuild the trust of survivors in the (inter)national criminal justice system by underlining shared interests in access to justice. This is particularly timely in the context of Afghanistan, where survivors are often left without recourse to effective remedies for past and ongoing atrocities. In building the case for UJ from a solidarity perspective, the article incorporates lessons from a project the author is involved in concerning the potential of UJ for holding members of the Taliban accountable for atrocity crimes; a collective effort commissioned by diaspora from Afghanistan. It contributes to this project by strengthening the call for survivors to form a central part of accountability efforts across the world.

Song, Tianying

doi: 10.1093/jicj/mqae049pmid: N/A

Drawing on social psychology, this article raises seemingly counterintuitive questions about international criminal law’s assumptions of human agency in a highly specific social environment. Is military institution hostile to the ‘normative individualism’ underlying international criminal law? If so, is it fair to demand individual criminal responsibility of members of a military organization in the same way as in peacetime situations? This article takes the perspective of an ordinary soldier and asks whether international criminal law is biased in describing causes of atrocities and dispensing solutions. After explicating some assumptions of individual criminal responsibility, it introduces the military organization as a total institution that subsumes individuals. It continues to examine the impact of the military mission and structure on the normative and behavioural competences of the ordinary soldier as a potential perpetrator of war crimes. It then contemplates how such a social environment undermines international criminal law’s fiction of human agency and, ultimately, its normative effect. This article not only invites further legal doctrinal reflections but also contributes to the criminological study of international crimes.

Rensink, Rowie

doi: 10.1093/jicj/mqae026pmid: N/A

On 21 September 2017, the United Nations (UN) Security Council established the ‘United Nations Investigative Team to Promote Accountability for Crimes Committed by Da’esh/ISIL’ (UNITAD) and tasked it to collect, preserve, and store evidence of international crimes committed by the Islamic State in Iraq. The creation of UNITAD does not stand alone. Since 1963, the UN has mandated more than 80 non- or semi-judicial ad hoc ‘Investigative Mechanisms’ (IM) in response to atrocities and situations of international concern. Recently, the realm of UN investigation witnessed an ‘accountability-turn’: by lack of other criminal justice avenues, IMs are set up and mandated to gather evidence, qualify conducts, attribute responsibility and pave the way for prosecution. Ample attention has been paid to their output and impact, but how they constitute themselves as a means to their ends — how they in actual practice interpret their mandate — has been severely understudied. This study takes UNITAD as a case and explores why it is doing what it does, how it does it, and what the implications hereof can be. Based on a literature review and expert interviews, this explorative study describes the intended purpose, priorities and principles of the written mandate as agreed upon by the UN Security Council and the Government of Iraq, and analyses UNITAD’s interpretation of these parameters in practice. It concludes that UNITAD has taken a restrictive stance with respect to some aspects of the written mandate while seeking leeway with respect to others. This navigation — informed by politics, practicalities and personality — strongly implicates the prospects of transitional justice: whereas UNITAD was mandated to foster criminal accountability, it has and still can facilitate broader forms of justice too.

Kazyrytski, Leanid

doi: 10.1093/jicj/mqae041pmid: N/A

This article examines whether the mass killings of people with leftist ideology by the Franco regime can be interpreted as genocide in accordance with the provisions of international law. The present study underscores the influence of religion on the configuration of Francoist criminal policy and provides evidence that allows Francoist repression to be considered as genocide. Individuals with leftist ideologies were presented not only as a political group but also as a religious group with atheist and non-Catholic beliefs. In this sense, the mass political repression conducted by the Franco regime fulfils the objective elements (actus reus) of genocide due to the fact the religious element played a significant role in justifying the annihilation of Republicans. The victims of Francoist repression were in fact selected not only because they belonged to a certain political movement or party but also because they belonged to a certain religious group.

McDougall, Carrie

doi: 10.1093/jicj/mqae042pmid: N/A

The Global Institute for the Prevention of Aggression (GIPA) recently prepared model amendments to the International Criminal Court (ICC) Statute, aimed at aligning the ICC’s jurisdiction over the crime of aggression with its jurisdiction over genocide, crimes against humanity and war crimes. GIPA also prepared a draft resolution under which the recommended amendments could be adopted, and a brief explanatory memorandum to assist States Parties in their consideration of these texts. In consultation with other members of GIPA’s Council of Advisers, I was the primary author of these documents. This article details the reasons for the shape of the recommended amendments and key resolution provisions. Through an explanation of the interpretive debate surrounding the provision governing the exercise of the ICC’s jurisdiction over crimes of aggression involving States Parties, the article demonstrates that the simple deletion of offending limitations on the ICC’s jurisdiction, or parts thereof, would be unwise, because such an approach could inadvertently result in a further narrowing of the Court’s jurisdiction. The article also explains the technical issues and policy imperatives that lie behind the choice of the provision to govern the amendments’ entry into force, and why it is prudent to set out the effect of the proposed amendment for both states that have already ratified the 2010 aggression amendments, and states yet to ratify those amendments, or the ICC Statute.

de Vries, Barry

doi: 10.1093/jicj/mqae033pmid: N/A

After a contentious path, the amendment incorporating biological weapons into Article 8 of the ICC Statute was finally adopted in 2017. Since then, 18 states have ratified the amendment. This article examines the amendment in light of national provisions addressing the use of biological weapons in armed conflict. By discussing the national provisions before and after the amendment, it is possible to determine the effect of the amendment on subsequent national provisions. Combined with an analysis of states’ rationale for adopting relevant legislation, it is possible to assess the impact on state practice and consequently understand the significance of adopting an amendment to the ICC Statute and incorporating it into national legislation for the development or confirmation of customary international law. The lessons learned in the process could be applied to other existing or future amendments.

Pulvirenti, Rossella

doi: 10.1093/jicj/mqae043pmid: N/A

The case law on witness preparation at the International Criminal Court (ICC) does not provide a coherent answer to whether it is admissible. Similarly, scholars have examined this practice from different perspectives, but they have not come to a consensus, and no academic study focuses on the link between witness preparation and witnesses’ well-being. This article analyses ICC case law on this issue and identifies three different approaches to witness preparation. It suggests that witness preparation corresponds to a legal obligation under Article 68 of the Rome Statute to protect witnesses’ well-being. Additionally, Article 68 imposes an obligation to ensure witnesses are adequately prepared upon the entire ICC and not only its judges. This article recommends that the ICC should hold a broad consultation on witness preparation with different actors. Finally, given that the practice has the potential to be abused, this article provides some suggestions on how to balance witness preparation with the right to a fair trial and witnesses’ rights.

Tan, Yudan

doi: 10.1093/jicj/mqae022pmid: N/A

This article examines the implications of a state party’s withdrawal from the Rome Statute, with a particular focus on its impact on the continuity of International Criminal Court (ICC) proceedings in an ongoing situation, especially during the preliminary examination phase. It begins by scrutinizing three distinct ways of addressing the implications of a state party withdrawal employed by the ICC, drawing insights from key decisions in the Burundi and Philippines situations, as well as scholarly viewpoints on the issue. It then analyses the legal consequences of withdrawal on ICC proceedings, both in situations where the investigation is initiated by the Office of the Prosecutor and those triggered by state party referral. This article argues that the authorization of an investigation in the Philippines situation may have exceeded the bounds set by the Rome Statute.

Mehta, Kalika; Imani, Sarah; Melchior, Leokadia

doi: 10.1093/jicj/mqae050pmid: N/A

The practice of universal jurisdiction (UJ), meaning the prosecutions of international crimes before national courts regardless of where the crimes took place, who committed the crimes and against whom these crimes were committed, has been facing critique and praise alike. This article analyses the practice of UJ from the perspective of the Third World Approaches to International Law (TWAIL). It has been argued that over the years, UJ practice has also reflected the double standards that characterize the practice of international criminal law (ICL) more broadly. The reasons for this are manifold. UJ, like international (criminal) law in general, comes with certain foundational challenges, systematically and substantively. On the one hand, the modern practice of ICL is often critiqued for its selective and uneven enforcement, both in international and national courtrooms. On the other hand, we encounter systemic and doctrinal obstacles to the prosecution of Western actors, including most importantly Western corporations. There are only limited grounds within the UJ system for addressing the root causes of the structural violence that inform a hegemonic ‘dynamic of difference’ between the ‘Third World’ peoples and Western states and corporations. This article explores the duality of this system and practice as it unfolds in Germany under the Code of Crimes Against International Law (‘V ölkerstrafgesetzbuch’, VStGB), using a TWAIL lens. We argue that the practice of UJ needs to be viewed in a nuanced manner: while there is a risk of furthering Eurocentrism, with Western European states selectively pursuing low- to mid-level perpetrators predominantly from countries of the so-called Global South, while Western actors enjoy impunity, this practice is also the result of mobilization and efforts of victims/non-state actors who see UJ processes as an important avenue for accountability, empowerment and agency.

Simon, Manon Céline

doi: 10.1093/jicj/mqae047pmid: N/A