The Malabo Protocol, the ICC, and the Idea of ‘Regional Complementarity’

Judicial Interpretation ◽

Ongoing Development ◽

Principle Of Complementarity

Abstract The African Union (AU) has taken steps to regionalize international criminal law through the expansion of the African Court of Justice and Human Rights (ACJHR) vis-à-vis the Malabo Protocol. The principle of complementarity is a cornerstone of the Rome Statute of the International Criminal Court (ICC). The Rome Statute crystallizes a complementary relationship between the ICC and domestic legal systems under Article 17 but makes no mention of regional or ad hoc jurisdictions. Prospects for including regional jurisdictions within the principle of complementarity are contingent upon a positive judicial interpretation of the principle and clearly established obligations at each level. It will necessarily require funding and support by states. Such an approach will contribute to the ongoing development of a robust system of international criminal justice. In order to effectively resolve the issue of competing mandates and effective domestic implementation, a cooperative model needs to be espoused. Although hypothetical at present, the idea of ‘regional complementarity’ is one worth thinking about in the context of constructive reform at the ICC. The prospective ACJHR offers a useful framework to analyse the potential role of regional mechanisms within the international criminal law project, broadly considered.

The Legacy of the ICTY and ICTR in China

AJIL Unbound ◽

10.1017/s2398772300009107 ◽

2016 ◽

Vol 110 ◽

pp. 245-250

Author(s):

Bing Bing Jia

Keyword(s):

Criminal Law ◽

Rome Statute ◽

Ad Hoc ◽

International Criminal ◽

International Criminal Tribunal ◽

Criminal Court ◽

Decision Makers ◽

International Tribunal

Legacy is a matter that may become topical when its creator finally stops producing. Normally, the silent years would be many before the thought of legacy enters into open, formal discourse among lawyers and decision-makers. This comment treats the meaning of the word as relative to the circumstances in which it is invoked. The more closely it is used in relation to the present, the more distant it drifts from its literal meaning, to the extent that it denotes what the word “impact” signifies. This essay questions whether the word “legacy” is apt in describing the footprint of the work of the two ad hoctribunals in China, where its influence has, as a matter of fact, been waning ever since the adoption of the Rome Statute of the International Criminal Court in 1998 (“Rome Statute” ). The Chinese example suggests that the work of the tribunals is (at least so far) no more significant to international criminal law than the illustrious Nuremberg and Tokyo Trials of the 1940s. The most major impact (a more apposite term than legacy) of the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Tribunal for Rwanda (ICTR) for China may be that China’s policy with regard to the tribunals, manifested mostly in the United Nations, has determined its approach to the International Criminal Court (“ICC” ). For that, the work of the tribunals could be considered as having left China something in the nature of an indirect legacy.

What We Talk About When We Talk About Early Release in International Criminal Law: The Sui Generis Nature of the Reduction of Sentence Under the Rome Statute

10.1163/15718123-bja10113 ◽

2021 ◽

pp. 1-29

Author(s):

Cristina Fernández-Pacheco Estrada

Keyword(s):

Criminal Law ◽

Rome Statute ◽

Ad Hoc ◽

International Criminal ◽

Case Law ◽

Criminal Court ◽

Early Release ◽

International Criminal Tribunals ◽

The Many

Abstract Early release has been regularly granted by the ad hoc tribunals for over 20 years. However, it could be argued that some issues still remain contentious. In fact, in May 2020, the Practice Direction ruling early release in the Mechanism of the International Criminal Tribunals was amended. This was intended to clarify key matters, such as the time needed to be served before early release, the possibility of imposing conditions upon those released, and the unappealable character of the resulting decision. At a glance, it could be argued that the International Criminal Court is better equipped to confront the many challenges posed by early release. This is owing to its detailed regulation, which may consequently lead to a more reasoned and solid case law. After comparatively examining ten features key to the application of early release, however, this paper argues that the ultimate problem lies within the nature generally conferred to early release in the Rome Statute.

International criminal court as an international judical body acting on a complementary basis

SCIENTIFIC WORK ◽

10.36719/2663-4619/64/97-101 ◽

2021 ◽

Vol 15 (3) ◽

pp. 97-101

Author(s):

Nihad Fərhad oğlu Qəyayev ◽

Keyword(s):

Criminal Law ◽

Rome Statute ◽

International Criminal ◽

International Crime ◽

Criminal Court ◽

Policy Paper ◽

Rules Of Procedure ◽

Principle Of Complementarity

The functioning of the International Criminal Court is carried out on the basis of the principle of complementarity. Thus, in the Preamble and Article 1 of the Rome Statute of the International Criminal Court explicitly states that “the International Criminal Court….complements the national criminal justice authorities”. The principle of complementarity is revealed in Art. 17-20 of the Statute. This article discusses the algorithm and the criteria for evaluating the performance of the complementarity based on the analysis of the Rome Statute of the International Criminal Court (Statute), the Rules of Procedure and Evidence (2000), the Policy Paper on Case Selection and Prioritisations of 2016, the Policy Paper Preliminary Examinations of 2013. Key words: International Criminal Court, principle of complementarity, Rome Statute, international crime, state sovereignty, criminal law jurisdiction, international criminal law, principles of criminal procedure

A Perspective on the Rome Statute’s Defence of Duress: The Role of Imminence

10.1163/15718123-01801001 ◽

2018 ◽

Vol 18 (1) ◽

pp. 154-177 ◽

Cited By ~ 2

Author(s):

Clare Frances Moran

Keyword(s):

Present State ◽

Criminal Law ◽

Rome Statute ◽

International Criminal ◽

Criminal Court ◽

Definition Of ◽

The Individual

The concept of duress encapsulated in Article 31(1)(d) of the Rome Statute of the International Criminal Court is a novel inclusion in a statute created to allow prosecution of serious crimes against the person in international criminal law. Despite being the topic of much debate, the present state of the discourse remains at a fairly superficial level: existing studies focus on a general analysis of the defence and its conditions. This has included the way in which the defences merges necessity and duress, with only a few authors examining the conditions of ‘proportionality’ and ‘necessity’. This study looks at an underexplored part of the defence: the condition of imminence. The purpose of this work is to explore the idea of imminence and to review whether a clearer definition of duress could have been used, replacing the idea of imminence with the concept of the individual selecting the lesser evil.

The International Criminal Court: Promise and Politics

Proceedings of the ASIL Annual Meeting ◽

10.5305/procannmeetasil.109.2015.0269 ◽

2015 ◽

Vol 109 ◽

pp. 269-272

Author(s):

Makau Mutua

Keyword(s):

Civil Society ◽

Criminal Law ◽

Rome Statute ◽

Ad Hoc ◽

International Criminal ◽

International Criminal Tribunal ◽

Criminal Court ◽

International Criminal Tribunals

The International Criminal Court (ICC or Court) is an institution born of necessity after a long and arduous process of many false starts. The struggle to establish a permanent international criminal tribunal stretches back to Nuremberg. The dream, which was especially poignant for the international criminal law community, for a permanent international criminal tribunal was realized with the adoption in 1998 of the Rome Statute of the International Criminal Court. The treaty entered into force in 2002. Those were heady days for advocates and scholars concerned with curtailing impunity. No one was more ecstatic about the realization of the ICC than civil society actors across the globe, and particularly in Africa, where impunity has been an endemic problem. Victims who had never received justice at home saw an opportunity for vindication abroad. This optimism in the ICC was partially driven by the successes, however mixed, of two prior ad hoc international criminal tribunals—the International Criminal Tribunal for Rwanda and the International Criminal Tribunal for the Former Yugoslavia.

Characterising the System of the International Criminal Court: An Exploration of the Role of the Court Through the Elements of Crimes and the Crime of Genocide

10.1163/157181206778050660 ◽

2006 ◽

Vol 6 (2) ◽

pp. 257-274 ◽

Cited By ~ 1

Author(s):

Leanne McKay

Keyword(s):

Criminal Law ◽

Rome Statute ◽

International Criminal ◽

Criminal Court ◽

Court System ◽

Global Harmonisation

AbstractThis paper examines the nature of the legislative system of the International Criminal Court, as established by the Rome Statute and the Elements of Crimes. It asks, to what extent can this system be seen as self-contained and self-sustaining or is its role better described as one of global harmonisation of existing and developing international criminal law? By examining the Elements of Crimes and their operation through the case study of the crime of genocide, the paper identifies some of the contradictions and challenges facing both the judges and parties who are obliged to work within this system, and also national jurisdictions that simultaneously seek to maintain their sovereignty and be included within the International Criminal Court system.

Custom as a Source Under Article 21 of the Rome Statute

Asian Journal of International Law ◽

10.1017/s2044251321000205 ◽

2021 ◽

pp. 1-13

Author(s):

Amit KUMAR

Keyword(s):

Criminal Law ◽

Rome Statute ◽

Ad Hoc ◽

International Criminal ◽

International Court Of Justice ◽

Court Of Justice ◽

International Court ◽

The Icj ◽

Principle Of Legality

Abstract The adoption of the Rome Statute is a significant moment for international criminal law. Before its formulation, the criminal law was governed by the sources mentioned in their statute or Article 38 of the Statute of the International Court of Justice [ICJ Statute]. Custom is one of the important sources within the ICJ Statute. The ad hoc tribunals applied custom and even formulated certain customs. The formulation of custom is considered as against the principle of legality. To avoid such criticism, the State Parties inserted Article 21 in the Rome Statute. The provision clarifies the law which the court can apply. The parties chose not to include custom explicitly. However, the wordings of the provision indicate that the custom is still a source for the court. Apart from the wording of Article 21, other provisions of the Statute give ample scope for the application of custom.

To Withdraw or Not to Withdraw: A Structural Analysis of the Scope and Limits of Voluntary Withdrawal of Criminal Attempt in the Rome Statute

10.1163/15718123-bja10030 ◽

2020 ◽

Vol 20 (6) ◽

pp. 1167-1192

Author(s):

Igor Vuletić

Keyword(s):

Criminal Law ◽

Rome Statute ◽

International Criminal ◽

International Crime ◽

Criminal Liability ◽

Criminal Court ◽

Clear Understanding ◽

Voluntary Withdrawal ◽

Subjective Conception

Abstract Voluntary withdrawal of criminal attempt is one of the fundamental institutes of the general part of criminal law, originally codified in international criminal law in the Rome Statute. Since the Statute attributed significant legal effects to withdrawal, which excludes the liability for criminal attempt, it is important to establish a clear understanding on its scope and limitations. This article analyses controversial issues related to the legal nature of withdrawal as grounds for exclusion of criminal liability, withdrawal of individual offenders and accomplices, and provides interpretations on potential solutions for these issues. The analysis is based on the subjective conception of withdrawal, under which its essence lays in the rejection of the initial criminal intent, while taking into consideration withdrawal in the context of international crime. Based on the analysis, an original three-level test for the determination of withdrawal in the future practice of the International Criminal Court, (icc) is proposed.

The Relationship between State Sovereignty and the Enforcement of International Criminal Law under the Rome Statute (1998): A Complex Interplay

10.1163/157181209x457974 ◽

2009 ◽

Vol 9 (3) ◽

pp. 531-545 ◽

Cited By ~ 3

Author(s):

Manuela Melandri

Keyword(s):

International Law ◽

Criminal Law ◽

Rome Statute ◽

International Criminal ◽

Current System ◽

Specific Aspect ◽

Criminal Court ◽

State Sovereignty ◽

The Relationship

AbstractThis article explores the relationship between state sovereignty and the enforcement of international criminal law under the Rome Statute of the International Criminal Court. This doing, it attempts to map out the ambivalent and sometimes contradictory roles that different typologies sovereignty play in advancing or hindering the enforcement of international criminal law. After a brief survey of the literature on the debate over 'international law vs. state sovereignty', the paper focuses on one specific aspect of the newly established ICC: the conditions for case admissibility. The analysis will show that the relationship between state sovereignty and international criminal justice is a dynamic and complex one, which needs to be understood and contextualized within the current system of international relations.

Part 3 General Principles of Criminal Law: Principes Généraux Du Droit Pénal, Art.27 Irrelevance of official capacity/Défaut de pertinence de la qualité officielle

10.1093/law/9780198739777.003.0032 ◽

2016 ◽

Author(s):

Schabas William A

Keyword(s):

International Law ◽

Criminal Law ◽

Rome Statute ◽

International Criminal ◽

Criminal Responsibility ◽

Criminal Court ◽

Customary International Law ◽

Head Of State

This chapter comments on Article 27 of the Rome Statute of the International Criminal Court. Article 27 consists two paragraphs that are often confounded but fulfil different functions. Paragraph 1 denies a defence of official capacity, i.e. official capacity as a Head of State or Government, a member of a Government or parliament, an elected representative or a government official shall not exempt a person from criminal responsibility under the Statute. Paragraph 2 amounts to a renunciation, by States Parties to the Rome Statute, of the immunity of their own Head of State to which they are entitled by virtue of customary international law. In contrast with paragraph 1, it is without precedent in international criminal law instruments.