State Sovereignty, Jurisdiction, and ‘Modern’ International Law: The Principle of Complementarity in the International Criminal Court

2006 ◽  
Vol 19 (4) ◽  
pp. 1095-1123 ◽  
Author(s):  
FEDERICA GIOIA
Keyword(s):  
International Law ◽  
International Criminal Court ◽  
International Criminal ◽  
International Community ◽  
Criminal Court ◽  
State Sovereignty ◽  
The Core ◽  
Recent Developments ◽  
Principle Of Complementarity

The article analyses the main features of the Statute of the International Criminal Court in the context of recent developments in international law. The core submission is made that the states' obligations enshrined in the Statute (namely, to investigate and prosecute the most heineous crimes, and to co-operate with the Court in their investigation and prosecution) are to be construed as obligations erga omnes. Since ending impunity for such crimes transcends the interests of individual states, the Court should act on behalf of the international community in remedying any shortcomings of states' action in this respect. In this perspective, particular attention is devoted to the principle of complementarity: it is argued that it could and should be construed and implemented in such a way as genuinely to allow the achievement of the universal objective of preventing impunity for those crimes of concern to the international community.

ACCIDENT AND DESIGN: RECOGNISING VICTIMS OF AGGRESSION IN INTERNATIONAL LAW

2021 ◽  
Vol 70 (1) ◽  
pp. 103-132
Author(s):  
Shane Darcy
Keyword(s):  
Human Rights ◽  
United Nations ◽  
International Law ◽  
International Criminal Court ◽  
International Criminal ◽  
Criminal Court ◽  
Future Application ◽  
Political Rights ◽  
Recent Developments ◽  
Civil And Political Rights

AbstractInternational law has not traditionally recognised individuals as victims of the crime of aggression. Recent developments may precipitate a departure from this approach. The activation of the jurisdiction of the International Criminal Court over the crime of aggression opens the way for the future application of the Court's regime of victim participation and reparation in the context of prosecutions for this crime. The determination by the United Nations Human Rights Committee in General Comment No. 36 that any deprivation of life resulting from an act of aggression violates Article 6 of the International Covenant on Civil and Political Rights serves to recognise a previously overlooked class of victims. This article explores these recent developments, by discussing their background, meaning and implications for international law and the rights of victims.

Completing the ``International Criminal Order''

1998 ◽  
Vol 67 (2) ◽  
pp. 107-137 ◽  
Author(s):  
Keyword(s):  
International Law ◽  
International Criminal Court ◽  
International Criminal ◽  
International Community ◽  
Criminal Court ◽  
Criminal Jurisdiction ◽  
Draft Statute ◽  
Domestic Jurisdiction ◽  
International Law Commission ◽  
Law Commission

AbstractRecent efforts in the United Nations to establish a comprehensive system of international criminal repression by creating a permanent international criminal court are by no means free from doubts regarding the possibility ever to enforce such law. The preamble of the draft statute prepared by the International Law Commission states the basis on which the court is to assert jurisdiction in an ambitious manner: it is the ``International Community'', joining against ``the most serious crimes of international concern''. The project cannot, however, ignore decades of realist criticism against the assumption of the existence of an international community that is ready to accept an international criminal jurisdiction. In the negotiations, this contradiction is dealt with by a technique provided with an ambiguous name: ``complementarity'', i.e. the coordination of the tasks of the international and domestic jurisdiction. The writer discusses the various ideas and proposals presented under the heading of ``complementarity'' in order to examine the tension between communitarian and sovereignty-based strands in the international project to create an effective criminal jurisdiction.

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.

Individual Criminal Responsibility

2020 ◽  
Author(s):  
Chantal Meloni
Keyword(s):  
International Law ◽  
International Criminal Court ◽  
International Criminal ◽  
Criminal Responsibility ◽  
Criminal Liability ◽  
Strict Liability ◽  
International Community ◽  
Criminal Court ◽  
International Crimes ◽  
Individual Criminal Responsibility

The recognition of individual criminal responsibility under international law is relatively recent. The commission of mass atrocities during the 20th century prompted the international community to recognize that individuals can be criminally responsible directly under international law and to work for the establishment of an international criminal court having jurisdiction on international crimes committed by individuals. Thus, after World War II, the principle was established that individuals—and not only states—can be the addressee of obligations, commit crimes, and therefore bear criminal responsibility directly under international law. As affirmed by the judges sitting in Nuremberg: “Crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced.” As a consequence, it is now undisputed that individuals shall be punished for the commission of crimes under international law (or “international crimes”) that seriously damage the interest of the international community as a whole, so that the goals of prevention and deterrence can be achieved. This principle is now well expressed in the Preamble of the Rome Statute of 1998, where it affirms that “the most serious crimes of concern to the international community as a whole must not go unpunished” and that the International Criminal Court aims “to put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimes.” The attribution of criminal responsibility to individuals does not exclude that states can be held responsible for the violations of international law that also potentially amount to international crimes; however, individual criminal responsibility under international law possesses the same legal nature as the criminal responsibility under domestic law, whereas the responsibility of states is of an international/civil nature. Given the macro-criminal dimension of the crimes at stake, which normally involve the state apparatus and are committed by an organized group or in a systematic manner, the process of “individualization” of the responsibility encounters more than one challenge. First, the issue of immunities for heads of states and other subjects under international law; second, the regulation of the modes of liability, which need to take into account the collective dimension of commission of international crimes. To overcome some of the difficulties, the rules of attribution of criminal liability to individuals had been partly reinterpreted and new modes of liability developed. Moreover, the principle of personal culpability excludes collective and strict liability. As a consequence, several grounds to exclude criminal responsibility are recognized. Finally, the enforcement of individual criminal responsibility for international crimes is the real challenge in a context of collective commission and macro-dimension of the crimes, where, moreover, the mechanisms of enforcement are not homogeneous.

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.

Dual Nationality and International Criminal Court Jurisdiction

2020 ◽  
Author(s):  
Andrew Wolman
Keyword(s):  
International Law ◽  
International Criminal Court ◽  
International Criminal ◽  
Functional Approach ◽  
Criminal Court ◽  
State Party ◽  
South Korean ◽  
Dual Nationality ◽  
Municipal Law ◽  
Domestic Law

Abstract The International Criminal Court (ICC) can exercise jurisdiction over nationals of states parties. However, it has never been clear whether the Court will automatically recognize a nationality that has been conferred by a state party under its domestic law, nor what criteria it would use to evaluate that nationality should it not be automatically accepted. In December 2019, the Office of the Prosecutor made its first formal pronouncement on the question, finding that the ICC does not have jurisdiction over North Koreans, despite their being South Korean nationals under South Korean law, because North Koreans are not able to exercise their rights as South Koreans until accepted as such by application, and on occasion their applications might be refused. In this article, I reject the Prosecutor’s analysis as misguided. I also reject the other main approaches to nationality recognition suggested by scholars, namely a ‘genuine link’ requirement, a deferral to municipal law, and a deferral to municipal law except where a conferral of nationality violates international law. Instead, I propose a functional approach that would respect municipal conferral of nationality unless that conferral unreasonably interferes with the sovereign interests of a non-state party.

Law and contestation in international negotiations

2020 ◽  
Vol 46 (5) ◽  
pp. 672-690
Author(s):  
Kyle Rapp
Keyword(s):  
Discourse Analysis ◽  
International Relations ◽  
International Law ◽  
International Criminal Court ◽  
International Criminal ◽  
Criminal Court ◽  
International Negotiations ◽  
The Us ◽  
Legal Grounds

AbstractWhat is the role of rhetoric and argumentation in international relations? Some argue that it is little more than ‘cheap talk’, while others say that it may play a role in persuasion or coordination. However, why states deploy certain arguments, and why these arguments succeed or fail, is less well understood. I argue that, in international negotiations, certain types of legal frames are particularly useful for creating winning arguments. When a state bases its arguments on constitutive legal claims, opponents are more likely to become trapped by the law: unable to develop sustainable rebuttals or advance their preferred policy. To evaluate this theory, I apply qualitative discourse analysis to the US arguments on the crime of aggression at the Kampala Review Conference of the International Criminal Court – where the US advanced numerous arguments intended to reshape the crime to align with US interests. The analysis supports the theoretical propositions – arguments framed on codified legal grounds had greater success, while arguments framed on more political grounds were less sustainable, failing to achieve the desired outcomes. These findings further develop our understanding of the use of international law in rhetoric, argumentation, and negotiation.

Individual Criminal Responsibility before the International Criminal Court

2012 ◽  
Vol 12 (1) ◽  
pp. 1-70 ◽  
Author(s):  
Barbara Goy
Keyword(s):  
International Law ◽  
International Criminal Court ◽  
Ad Hoc ◽  
International Criminal ◽  
Criminal Responsibility ◽  
International Criminal Tribunal ◽  
Case Law ◽  
Criminal Court ◽  
Former Yugoslavia ◽  
Individual Criminal Responsibility

For more than 15 years the two ad hoc Tribunals, the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR), have interpreted the requirements of different forms of individual criminal responsibility. It is thus helpful to look at whether and to what extent the jurisprudence of the ICTY/ICTR may provide guidance to the International Criminal Court (ICC). To this end, this article compares the requirements of individual criminal responsibility at the ICTY/ICTR and the ICC. The article concludes that, applied with caution, the jurisprudence of the ICTY/ICTR – as an expression of international law – can assist in interpreting the modes of liability under the ICC Statute. ICTY/ICTR case law seems to be most helpful with regard to accessorial forms of liability, in particular their objective elements. Moreover, it may assist in interpreting the subjective requirements set out in Article 30 ICC Statute.

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.

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