Palestine in the ICC

2020 ◽  
Author(s):  
Yaël Ronen
Keyword(s):  
International Criminal Court ◽  
International Criminal ◽  
Criminal Court ◽  
The Other ◽  
Self Determination ◽  
Effective Control ◽  
Progressive Development ◽  
Territorial Jurisdiction ◽  
The Right

Abstract This 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 can compensate for a shortfall in effective control that might otherwise bar recognition of the territory as a state. The other proposition is that when effective control is lacking because of illegal obstruction of the realization of the right to self-determination, recognition of statehood may be an appropriate response regardless of the facts. The article argues that these propositions are neither substantiated in existing law, nor can they be said to be matters of the progressive development of the law. For this, the article analyses instances where statehood was allegedly recognized prior to the consolidation of effective control and which are cited as reflecting the propositions. It shows that these instances do not support the propositions. With respect to the second proposition, the article argues that it is inadvisable as lex ferenda, nor applicable in the Palestine case.

The Prosecutor’s Request Concerning the Rohingya Deportation to Bangladesh: Certain Procedural Questions

2018 ◽  
Vol 31 (4) ◽  
pp. 981-1002 ◽  
Author(s):  
MICHAIL VAGIAS
Keyword(s):  
International Criminal Court ◽  
International Criminal ◽  
Trial Chamber ◽  
Criminal Court ◽  
Territorial Jurisdiction ◽  
The Right ◽  
First Time

AbstractOn 9 April 2018, the Prosecutor of the International Criminal Court filed a request seeking the composition of a Pre-Trial Chamber, in order to decide whether the Court has territorial jurisdiction over the Rohingya deportation from Myanmar to Bangladesh as a crime against humanity. This filing is a first for the Court on at least two fronts; it is the first time the Prosecutor has asked the Court to interpret Article 12(2)(a) and apply qualified territoriality; it is also the first time the Prosecutor has asked for a ruling on jurisdiction under Article 19(3).This study explores certain procedural questions emerging from this request, such as the Court’s authority to decide while its jurisdiction is ‘dormant’; the function of Article 19(3) within the Rome Statute’s overall system concerning jurisdictional determinations; issuing a decision on jurisdiction, while avoiding prejudice to subsequent proceedings and without rendering meaningless the right to challenge jurisdiction under Article 19(2) of the Statute. The article accepts that the request is a step in the right direction, as it signals the Prosecutor’s determination to investigate the Rohingya crisis. However, the manner and timing of its presentation give rise to plausible claims of incompatibility with the Court’s procedural framework. Arguably, the Court may well instruct the Prosecutor to assume the risk of wasting precious resources and proceed with further investigations, pending the final determination of the jurisdictional question at a later stage.

State of Exception

2020 ◽  
Author(s):  
Ardi Imseis
Keyword(s):  
International Criminal Court ◽  
International Criminal ◽  
Trial Chamber ◽  
Criminal Court ◽  
State Of Exception ◽  
Critical Examination ◽  
Territorial Jurisdiction ◽  
Preliminary Examination ◽  
Occupied Palestinian Territory ◽  
Palestinian Territory

Abstract In 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 her view that the ‘territory’ over which the Court may exercise its jurisdiction comprises the Occupied Palestinian Territory (OPT). This article focuses on the amici curiae observations and other communications made by eight states parties in the proceedings — Australia, Austria, Brazil, Canada, Czech Republic, Germany, Hungary and Uganda. A critical examination of these observations and communications reveals that they did not answer the question posed by the OTP, but rather advanced a number of strained arguments aimed, inter alia, at impugning the very notion that the Court has any jurisdiction at all on the basis that Palestine is not a state. When juxtaposed against the ostensible commitment of these states parties to the object and purpose of the Statute, their observations and other communications reveal a conspicuous hypocrisy. If accepted by the Court, these observations and communications would operate to not only affirm the continued contingency of the state of Palestine on the international plane, but, even worse, to shield persons known to have committed or be committing crimes of the gravest concern to the international community with impunity.

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.

scholarly journals Victim’s Right of Access to International Criminal Courts

2016 ◽  
Vol 10 (1) ◽  
pp. 279
Author(s):  
Fazlollah Foroughi ◽  
Zahra Dastan
Keyword(s):  
International Law ◽  
International Criminal Court ◽  
International Criminal ◽  
Criminal Court ◽  
International Level ◽  
Human Beings ◽  
International Crimes ◽  
The Government ◽  
The Right ◽  
Right Of Access

Due to quantitative expansion and evolution in committing the crime at the international level, the scope of criminal proceedings has been widened significantly. Tolerance and forgiveness towards crimes that happen at international level not only is a double oppression on the victims, but also provide a fertile context for others to commit crimes more daringly. Thus, it is essential that international criminals are held accountable to the law and competent institution, and the realization of this issue leads to the victim satisfaction in international law. Not only in international law, but also in domestic law, show respect and protection of human rights is effective only when there is an effective justice system to guarantee the rights. Although some international crimes practically occur by the government or at least high-ranking government officials, the Statute of the International Criminal Court has reiterated this point that they only have jurisdiction over the crimes committed by natural persons rather than legal entities, which one good example is governments, and although the real victims of these crimes have been human beings, in the case of action and referring the case to the competent international courts, these are the states (rather than the victims) that actually have the right of access to the authorities and not beneficiaries .Thus, at the first step, we should see whether the Court has jurisdiction over the crime committed by the government and whether people can file an action independently in the International Criminal Court or not? When people, rather than governments, are beneficiaries in some international crimes, why only the government and not the people is the plaintiff? And what is the right of the victim in such category of crimes? Accordingly, the current research seeks to examine these rights and restrictions, and relevant limitations.

scholarly journals The right to self-representation before International Criminal Tribunals, while not absolute, should only be denied in limited circumstances

2020 ◽  
Vol 62 (3) ◽  
pp. 235-247
Author(s):  
Paul Bassett
Keyword(s):  
International Criminal Court ◽  
International Criminal ◽  
Fair Trial ◽  
Criminal Court ◽  
International Criminal Tribunals ◽  
The Right

One of the most controversial aspects of the International Criminal Tribunals (ICTs) and the International Criminal Court (ICC) concerns the right to self-representation. Many defendants have sought to use the trial as a stage on which to challenge the legitimacy of the court and to play to the crowd in their own home states. As a result, the various ICTs have sought to place limitations on the accused’s right to selfrepresentation. The recent amendment to the Statute of the Supreme Iraqi Criminal Tribunal (SICT) is an example of this. This evolution raises questions concerning the effect such limitations may have on the overall fair trial rights of the accused. This article argues that there is a need to establish a guaranteed right of self-representation, provided the accused adheres to an objective set of conditions placed on the right. Such conditions should be confined to those strictly necessary to ensure the integrity of the court. Such a move would allow the court to gain some much needed legitimacy while at the same time deny defendants the ability to turn the court into a political stage.

scholarly journals Reforming the International Criminal Court (ICC): Progress, Perils and Pitfalls Post the ICC Review Process

2021 ◽  
Vol 21 (1) ◽  
pp. 7-42
Author(s):  
Jeremy Julian Sarkin
Keyword(s):  
International Criminal Court ◽  
Review Process ◽  
International Criminal ◽  
Criminal Court ◽  
Core Theme ◽  
Role Players ◽  
To Come ◽  
State Cooperation

Summary The International Criminal Court is a very controversial institution. It is extensively criticised by both its critics and its supporters. This article examines what steps have been taken to reform the Court. It considers issues such as the need for better communications and messaging by the Court. The paper takes up how and why the Court needs to engage better and in more far-reaching ways with a host of role players that affect the terrain in which the Court operates. It is argued that more reform is needed in how the Court is lead, how it operates, and who the judges and staff are. It is argued that greater diversity is needed at the Court. Also taken up are how the reach of the Court can be increased beyond only prosecutions, how the Court can assist states to prosecute more cases themselves, and how the Court can become more victim centred. A core theme is how state cooperation can be enhanced. A range of suggestions are made so as to enhance the role of the Court in the years to come.

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