The Role of State Amici Curiae in the Article 19(3) ICC Statute Proceedings

2020 ◽  
Author(s):  
Sarah Williams ◽  
Hannah Woolaver
Keyword(s):  
International Law ◽  
International Organizations ◽  
International Criminal ◽  
Trial Chamber ◽  
Criminal Court ◽  
Law And Politics ◽  
State Participation ◽  
The Impact ◽  
Controversial Nature

Abstract An 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 law — and politics. The high number of states seeking to participate as amici either individually or through international organizations reflects the controversial nature of the questions at hand. Conversely, Israel has refused to participate in the proceedings, despite an invitation from the Chamber. In this submission, we consider the challenges raised by state participation as amici curiae, including the role(s) played by state amici, and the impact — if any — such extensive participation has on the legitimacy of the proceedings and its outcome(s) and for the ICC as an institution.

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.

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.

To Prosecute or Not to Prosecute: Civil War Mediation and International Criminal Justice

2014 ◽  
Vol 19 (2) ◽  
pp. 257-284 ◽  
Author(s):  
J. Michael Greig ◽  
James D. Meernik
Keyword(s):  
International Law ◽  
International Criminal ◽  
Criminal Court ◽  
Crimes Against Humanity ◽  
Military Leaders ◽  
Conflict Situations ◽  
War Criminals ◽  
The Hague ◽  
Potential Impact ◽  
The Impact

The International Criminal Court (icc) came into force in July 2002 with the potential to drastically alter both the war fighting and peacemaking behavior of states. Theiccis designed to try and subsequently punish those found guilty of war crimes, crimes against humanity, and genocide. Supporters of theicchave argued that its establishment will erode the norm of impunity that state and military leaders have historically enjoyed. Yet, another logic suggests that the initiation of aniccinvestigation or the issuance of an arrest warrant for individuals embroiled in an ongoing dispute may make matters worse. Such individuals may see little reason to stop fighting and reach a settlement if conflict resolution results in their detention in The Hague. Indeed, suspected war criminals and their patrons may wish to escalate their violence in order to avoid showing any sign of weakness or possibility of capitulation lest their enemies press the fight or their rivals seek to undermine their authority. In this article, we explore the potential impact of theiccon the likelihood of peace by examining the impact of actions by theicc– the initiation of investigations into conflict situations and the issuance of arrest warrants for those suspected of committing violations of international law – on the likelihood of mediation. Our findings suggest that whileiccarrest warrants can encourage mediation, the initiation of investigations by theicccan actually undermine the occurrence of mediation.

Sources of International Humanitarian Law and International Criminal Law

2018 ◽  
Author(s):  
Raphaël van Steenberghe
Keyword(s):  
International Law ◽  
Criminal Law ◽  
Rome Statute ◽  
International Criminal ◽  
Criminal Court ◽  
International Criminal Law ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Armed Groups ◽  
The Impact

This chapter analyses the specific features which characterize the sources of international humanitarian law (IHL) and international criminal law (ICL). It first examines those which are claimed to characterize IHL and ICL sources in relation to the secondary norms regulating the classical sources of international law. The chapter then looks at the specific features of some IHL and ICL sources in relation to the others of the same field. Attention is given particularly to the Rome Statute of the International Criminal Court and the impact of its features on other ICL sources, as well as to the commitments made by armed groups, whose characteristics make them difficult to classify under any of the classical sources of international law. In general, this chapter shows how all those specific features derive from the specific fundamental principles and evolving concerns of these two fields of international law.

Part 6 The Trial: Le Procès, Art.76 Sentencing/Prononcé de la peine

2016 ◽  
Author(s):  
Schabas William A
Keyword(s):  
International Criminal Court ◽  
Rome Statute ◽  
International Criminal ◽  
Trial Chamber ◽  
Criminal Court ◽  
Form Part ◽  
The Individual ◽  
Individual Role

This chapter comments on Article 76 of the Rome Statute of the International Criminal Court. Article 76 governs the imposition of sentence in the event of a conviction. If the accused is convicted, the Trial Chamber is required to establish the ‘appropriate sentence’. In so doing, the Statute instructs it to consider the evidence presented and submissions made during the trial that are relevant to the sentence. Mitigating and aggravating factors relating to the commission of the crime itself, such as the individual role of the offender and of the treatment of the victims, will form part of the evidence germane to guilt or innocence and thus appear as part of the record of the trial.

Mediation in Interstate Disputes

2014 ◽  
Vol 19 (2) ◽  
pp. 191-200 ◽  
Author(s):  
Sara McLaughlin Mitchell
Keyword(s):  
Conflict Management ◽  
International Organizations ◽  
International Criminal Court ◽  
International Criminal ◽  
Criminal Court ◽  
Supply Side ◽  
Special Issue ◽  
Interstate Disputes ◽  
Supply Side Factors

This commentary provides a brief summary of the articles in this special issue and emphasizes four questions raised by this research: 1) ways to define and measure mediators’ strategies, 2) teasing out demand side factors from supply side factors in mediation, 3) capturing differences between states and international organizations as conflict managers, and 4) understanding the role of particular conflict management actors like the International Criminal Court.

International Criminal Jurisdiction

2019 ◽  
pp. 503-528
Author(s):  
Kirsten Schmalenbach
Keyword(s):  
International Law ◽  
International Criminal ◽  
International Community ◽  
Criminal Court ◽  
International Courts ◽  
Criminal Jurisdiction ◽  
National Jurisdiction ◽  
State Consent ◽  
Theoretical Foundations

This chapter examines the theoretical foundations and the genealogy of international criminal jurisdiction in international law. While it is clear that international criminal jurisdiction cuts into national jurisdiction to a certain extent, the question concerning the proper foundation of international criminal jurisdiction—whether it rests on state consent or a mandate by the international community—remains more nuanced and more debated. The chapter also explores judicial perspectives on the jurisdiction of international courts and tribunals. It argues that, where the Security Council has been involved in establishing a court or tribunal, jurisprudence supports the position that international criminal jurisdiction is exercised on behalf of the international community. In the case of the International Criminal Court (ICC), however, the picture becomes more complex, due to the role of domestic criminal jurisdiction and the difficulty in identifying a single international community.

Part 5 Investigation and Prosecution: Enquête Et Poursuites, Art.59 Arrest proceedings in the custodial State/Procédure d’arrestation dans l’état de détention

2016 ◽  
Author(s):  
Schabas William A
Keyword(s):  
International Criminal Court ◽  
Rome Statute ◽  
International Criminal ◽  
Trial Chamber ◽  
Criminal Court ◽  
Arrest Warrant ◽  
Article 59

This chapter comments on Article 59 of the Rome Statute of the International Criminal Court. Article 59 requires that the custodial State ‘act expeditiously in the surrender of persons subject to an arrest warrant issued by the Court’. By exhaustively listing the issues which the custodial State shall examine, article 59 also safeguards the competence and decisions of the Court, most notably by preventing national authorities from examining the validity of the warrant of arrest. Unlike most provisions of the Rome Statute, article 59 is likely to be read, interpreted, and applied by national judges. Combined with national implementing legislation, they will put into effect the obligations of arrest, the verification of the conditions under which it was carried out, and the granting of interim release. The role of the Pre-Trial Chamber ‘with respect to proceedings under article 59 of the Statute is limited to verifying that the basic safeguards envisaged by national law have been made available to the arrested person’.

Part 5 Investigation and Prosecution: Enquête Et Poursuites, Art.56 Role of the Pre-Trial Chamber in relation to a unique investigative opportunity/Rôle de la chambre préliminaire dans le cas où l’occasion d’obtenir des renseignements ne se présentera plus

2016 ◽  
Author(s):  
Schabas William A
Keyword(s):  
International Criminal Court ◽  
Rome Statute ◽  
Special Function ◽  
International Criminal ◽  
Trial Chamber ◽  
Criminal Court

This chapter comments on Article 56 of the Rome Statute of the International Criminal Court. Article 56 provides an exceptional mechanism by which evidence may be collected under judicial oversight and then made available at trial. It authorizes the Pre-Trial Chamber to ‘take such measures as may be necessary to ensure the efficiency and integrity of the proceedings and, in particular, to protect the rights of the defence’. Thus, the focus is on ensuring that the interests of the defence are protected at a stage that may arise even before a defendant has been identified. However, the benefits of article 56 are not reserved to evidence helpful to the defence. The special function of article 56 can be invoked by the Prosecutor or by the Pre-Trial Chamber itself, acting on its own initiative.

Witness Proofing in International Criminal Law: Introduction to a Debate

2008 ◽  
Vol 21 (3) ◽  
pp. 681-681
Author(s):  
ELIES VAN SLIEDREGT
Keyword(s):  
International Law ◽  
Criminal Law ◽  
Ad Hoc ◽  
International Criminal ◽  
International Criminal Tribunal ◽  
Trial Chamber ◽  
Criminal Court ◽  
International Criminal Law ◽  
Rules Of Procedure

The editorial board of the Leiden Journal of International Law is pleased to announce a debate on a very important but underexposed topic in international criminal law: witness proofing. Witness proofing is an accepted and well-established practice at the International Criminal Tribunal for the former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR), and the Special Court for Sierra Leone (SCSL). It entails setting up a meeting between a party to the proceedings and a witness, usually shortly before the witness is to testify in court, the purpose of which is to prepare and familiarize the witness with courtroom procedure and to review the witness's evidence. Recently a trial chamber of the International Criminal Court (ICC) prohibited witness proofing. On 30 November 2007, Trial Chamber I held in the Lubanga case that the possibility of witness proofing is not expressly provided for in the ICC Statute and its Rules of Procedure and Evidence, and that no general principle exists in national or international criminal law that would require the ICC to adhere to such a practice. Moreover, and this is the most interesting argument, the trial chamber held that the ICC Statute ‘moves away from the procedural regime of the ad hoc tribunals’ and that as a result witness proofing is not easily transferable to the ICC.

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