The Complementarity Regime of the International Criminal Court in Practice: Is it Truly Serving the Purpose? Some Lessons from Libya

2016 ◽  
Vol 30 (1) ◽  
pp. 199-220 ◽  
Author(s):  
NIDAL NABIL JURDI
Keyword(s):  
International Criminal Court ◽  
Rome Statute ◽  
International Criminal ◽  
Criminal Court ◽  
The State ◽  
Specific Result ◽  
Apparent Lack ◽  
International Crimes ◽  
Clear Vision ◽  
Bona Fide

AbstractThe interplay between the International Criminal Court (ICC) and domestic jurisdictions under the complementarity regime has unveiled statutory and policy limitations. These loopholes became vivid when the ICC faced new complex situations that were not initially envisaged by the drafters of the Rome Statute. On the practical side, the Libyan situation revealed setbacks and shortages in the policy(ies) adopted by the ICC. The first of these setbacks is the apparent lack of a coherent strategy on positive complementarity as invoked by (some) organs of the Court. The second aspect is the Court's adoption of a restrictive interpretation of the constituencies of the complementarity regime, making it extremely difficult even for some willing and able states to exercise their primary duty to prosecute core international crimes.The unfortunate loose interpretation of ‘unavailability’ that the ICC has developed has led to inaccurate interpretations of the complementarity mechanism in certain situations, such as Libya. Furthermore, the fair trial standards within the admissibility regime should not be exaggerated, but rather invoked to determine whether the state has a bona fide intention to investigate and prosecute these crimes. Contrary to some writers’ interpretation, this is an objective test of intention, not one of relativity or specific result.The ICC practice has shown a patchy approach that lacks a consistent and clear vision of its relation with domestic jurisdictions. While the ICC has not missed every opportunity to hail its commitment to positive complementarity, the reality is that the Court seems keen on understanding its success through conducting more international prosecutions.

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.

scholarly journals The African Allegations towards Ignorance of International Criminal Court: Does International Criminal Court unfairly focusing on Africa?

2021 ◽  
Vol 1 (1) ◽  
pp. p37
Author(s):  
Lamessa Gudeta Guder
Keyword(s):  
International Criminal Court ◽  
Rome Statute ◽  
International Criminal ◽  
Criminal Court ◽  
Political Leaders ◽  
African Government ◽  
International Crimes ◽  
Whole Process ◽  
And Function ◽  
Ongoing Support

Though, African continent has the highest number of state parties to the Rome Statute, recently several criticisms and allegations have been leveled against ICC interventions in Africa. AU and African higher official apparently call for non-cooperation of ICC. They believed that, ICC is unfairly targeting Africa and Africans, and it is a neo-colonial plaything and that Africa has been a place to experiment with their ideas. Such allegation begs question that is really the ICC unfairly focusing Africa and Africans? Therefore, it needs evaluating these accusations by considering the whole process and function of ICC. Accordingly, when we evaluate the allegations, it seems too far from trues. Because, on one hand, many of allegation and criticism itself is not representative of African peoples rather it is the allegation of some African political leaders of authoritarian nature of power those who fears the prosecution for the commission of mass crime and atrocities in their respective countries. On other hand the composition of the court by itself is Africans. It is a global court with historically strong African support. It would not be the court it is today without the valuable input, involvement and support of the majority of African states. The court seeks justice for victims of grave crimes, including African victims; it needs the ongoing support of African government, civil society and public in order to achieve justice. It was intended to be a credible, independent judicial body, able to adjudicate the most serious of international crimes fairly and impartially, where National judicial systems have failed and fight against impunity all over the world.

scholarly journals A jurisdição universal do Tribunal Penal Internacional e o deslocamento forçado do Povo Rohingya: o caso Myanmar v. Bangladesh do TPI

2021 ◽  
Author(s):  
Claudia Regina De Oliveira Magalhães da Silva Loureiro
Keyword(s):  
International Criminal Court ◽  
Rome Statute ◽  
International Criminal ◽  
Criminal Court ◽  
Universal Jurisdiction ◽  
International Crimes ◽  
Specific Objective ◽  
Deductive Method ◽  
Proper Interpretation ◽  
Principle Of Territoriality

Resumo: O artigo analisa a jurisdição universal do Tribunal Penal Internacional de acordo com o previsto no Estatuto de Roma de 1998, bem como em consonância com os princípios da territorialidade, complementaridade e cooperação. O objetivo principal do artigo é estudar a incidência da jurisdição do Tribunal e o objetivo específico é analisar como a jurisdição universal do Tribunal pode ser aplicada aos crimes praticados no território de um Estado que não é parte do Estatuto de Roma, utilizando-se como fonte principal o caso do Povo Rohingya, que tem uma relação intrínseca com a tese da jurisdição universal do Tribunal Penal Internacional, aspecto que representa a originalidade do trabalho. O critério dedutivo foi o método adotado para o desenvolvimento do trabalho, com o estudo do aspecto normativo, doutrinário e jurisprudencial. O trabalho concluirá que a jurisdição universal do TPI deve ser reavaliada para ser aplicada de acordo com a releitura do princípio da soberania estatal e da adequada interpretação dos crimes internacionais de interesse da humanidade, sob a perspectiva interseccional para a consideração dos atos anti-imigração como crimes contra a humanidade.Palavras-chave: Tribunal Penal Internacional; Jurisdição universal; Estatuto de Roma; Deportação; Princípio da territorialidade; Estado que não é parte do Estatuto do Tribunal; Atos anti-imigração. Abstract: The article analyzes the universal jurisdiction of the International Criminal Court in accordance with the 1998 Rome Statute, as well as in line with the principles of territoriality, complementarity and cooperation. The main objective of the article is therefore to study the jurisdiction of the Court and the specific objective is to examine how the universal jurisdiction of the Court can be applied to crimes occurring in the territory of States that are not part of the Rome Statute, using as a source the case of the Rohingya People, which is intrinsically linked to the universal jurisdiction of the International Criminal Court, what is the original aspect of the paper. The deductive method was the methodology adopted for the development of the work, with the study of the normative, doctrinal and jurisprudential aspect. The work will conclude that the universal jurisdiction of the ICC should be re-evaluated to be applied in accordance with the re-reading of the principle of state sovereignty and the proper interpretation of international crimes of interest to humanity, from the intersectional perspective for the consideration of anti-immigration acts as crimes against humanity.Keywords: International Criminal Court; Universal Jurisdiction; Rome Statute; Deportation; Principle of territoriality; State did not accept the jurisdiction of the Court; Anti-immigration acts.

Part 10 Enforcement: Exécution, Art.111 Escape/Évasion

2016 ◽  
Author(s):  
Schabas William A
Keyword(s):  
International Criminal Court ◽  
Rome Statute ◽  
International Criminal ◽  
Criminal Court ◽  
The State ◽  
General Sense ◽  
Original State ◽  
State Cooperation

This chapter comments on Article 111 of the Rome Statute of the International Criminal Court. Article 111 sets out measures in the event of escape of a convicted person. The Rome Statute combines ‘horizontal’ and ‘vertical’ approaches to State cooperation, allowing either the State of enforcement or the Court itself to intervene, depending on the circumstances. The Court may choose to return the escaped prisoner to the original State of enforcement, or to change the State of enforcement. Given the Court's authority to oversee and review enforcement in a general sense, even if this provision were not included in the Statute the consequences of escape would probably be the same.

Part 10 Enforcement: Exécution, Art.108 Limitation on the prosecution or punishment of other offences/Limites en matière de poursuites ou de condamnations pour d’autres infractions

2016 ◽  
Author(s):  
Schabas William A
Keyword(s):  
International Criminal Court ◽  
Rome Statute ◽  
International Criminal ◽  
Criminal Court ◽  
The State

This chapter comments on Article 108 of the Rome Statute of the International Criminal Court. Article 108 prohibits the prosecution, punishment, or extradition of a sentenced person to a third State for conduct engaged in prior to the person's delivery to the State of enforcement. However, the Court is allowed to dispense with this requirement if it is so requested by the State of enforcement. When the State of enforcement wishes to prosecute or enforce a sentence against a sentenced person for any conduct engaged in prior to that person's transfer, it shall notify its intention to the Presidency and transmit the relevant documents. In the event of a request for extradition made by another State, the State of enforcement shall transmit the entire request to the Presidency with a protocol containing the views of the sentenced person obtained after informing the person sufficiently about the extradition request.

Part 10 Enforcement: Exécution, Art.107 Transfer of the person upon completion of sentence/Transfèrement du condamné qui a accompli sa peine

2016 ◽  
Author(s):  
Schabas William A
Keyword(s):  
International Criminal Court ◽  
Rome Statute ◽  
International Criminal ◽  
Criminal Court ◽  
The State ◽  
Person Following ◽  
The Individual ◽  
To Receive

This chapter comments on Article 107 of the Rome Statute of the International Criminal Court. Article 107 governs the transfer of the person following completion of the sentence. When a released prisoner is not a national of the State of enforcement, and is not authorized to remain there, two possible scenarios arise: transfer to a State ‘which is obliged to receive him or her’ and transfer to a State ‘which agrees to receive him or her’. Transfer of a released person to a third State upon completion of sentence will invariably require agreement. Absent such agreement, the individual will remain in the State of enforcement. In deciding upon transfer, the wishes of the released prisoner are to be taken into account.

Part 10 Enforcement: Exécution, Art.103 Role of States in enforcement of sentences of imprisonment/Rôle des États dans l’exécution des peines d’emprisonnement

2016 ◽  
Author(s):  
Schabas William A
Keyword(s):  
International Criminal Court ◽  
Rome Statute ◽  
International Criminal ◽  
Criminal Court ◽  
The State ◽  
Rules Of Procedure

This chapter comments on Article 103 of the Rome Statute of the International Criminal Court. Article 103 deals with State enforcement of sentences. The enforcement regime of the International Criminal Court is premised on three broad principles: sentences are served in the prison facilities of States and are subject to their laws; enforcement of the sentence is subject to the supervision of the Court; and the sentence imposed by the Court is binding upon the State of enforcement. The provisions of the Statute governing enforcement are quite succinct, and much of the detail on the issue appears in the Rules of Procedure and Evidence.

Part 9 International Cooperation and Judicial Assistance: Coopération Internationale Et Assistance Judiciaire, Art.101 Rule of speciality/Règle de la spécialité

2016 ◽  
Author(s):  
Schabas William A
Keyword(s):  
International Criminal Court ◽  
Rome Statute ◽  
International Criminal ◽  
Criminal Court ◽  
The State ◽  
Customary Law ◽  
State Sovereignty ◽  
Coopération Internationale ◽  
The Individual ◽  
Judicial Assistance

This chapter comments on Article of the Rome Statute of the International Criminal Court. Article 101 sets out the principle of speciality, which is part of the customary law governing extradition between States. The rationale for the principle of speciality ‘is to protect State sovereignty’. For this reason, the rule is limited to the scenarios in which the person is arrested and is surrendered as a result of a request submitted by the Court to the State. It is inapplicable if the suspect has appeared voluntarily. The State that surrenders the individual to the Court may be asked to waive the rule of speciality if the Court seeks to proceed with respect to crimes that were not part of the original request for surrender.

Part 13 Final Clauses: Clauses Finales, Art.127 Withdrawal/Retrait

2016 ◽  
Author(s):  
Schabas William A
Keyword(s):  
United Nations ◽  
International Criminal Court ◽  
Rome Statute ◽  
International Criminal ◽  
Criminal Court ◽  
The State ◽  
Secretary General ◽  
State Party ◽  
The United Nations ◽  
One Year

This chapter comments on Article 127 of the Rome Statute of the International Criminal Court. Article 127 addresses the withdrawal of a State Party from this Statute. A State may withdraw from the Rome Statute by providing a written notification to the depositary, the Secretary-General of the United Nations. The withdrawal takes effect one year after receipt of the notification by the Secretary-General, unless a later date is specified. There have been no notifications of withdrawal from the Rome Statute. The Statute does not indicate whether a notice of withdrawal can itself be withdrawn, thereby returning the State to ordinary status as a Party. Withdrawal does not affect the continuation of the Statute with respect to other States Parties, even if the number of them falls below the threshold of sixty.

Part 9 International Cooperation and Judicial Assistance: Coopération Internationale Et Assistance Judiciaire, Art.92 Provisional arrest/Arrestation provisoire

2016 ◽  
Author(s):  
Schabas William A
Keyword(s):  
International Cooperation ◽  
International Criminal Court ◽  
Rome Statute ◽  
International Criminal ◽  
Criminal Court ◽  
The State ◽  
Coopération Internationale ◽  
Other Information ◽  
Judicial Assistance

This chapter comments on Article 92 of the Rome Statute of the International Criminal Court. Article 92 grants the Court authority, ‘[i]n urgent cases’, to request the provisional arrest of the person sought, pending presentation of the request for surrender and the documents supporting the request as specified in article 91. When a request is made to a State in accordance with article 92, the Registrar ‘invites’ the State to inform him or her of the arrest, and ‘to provide, inter alia’, personal details and other information concerning the arrest, including a confirmation of ‘the information given to the arrested person in respect of his or her rights’.

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