s.I Actors, Ch.5 Teachings of Publicists and the Reinvention of the Sources Doctrine in International Criminal Law

International Criminal ◽

Criminal Court ◽

The Right ◽

First Time ◽

Normative Powers

The chapter discusses the concepts of shared values and value-based norms. It examines two areas of international law that provide illustrative examples of contestation of value-based norms: the fight against impunity under international criminal law and the debates about the responsibility to protect. It argues that the African Union’s (AU) difference of view with the International Criminal Court (ICC) over the indictment of Omar Al-Bashir is not a rejection of the non-impunity norm, but of the context and sequencing of its application. As regards the right of intervention codified in the Constitutive Act of the AU, Africans states responded to the failure of the Security Council to invoke its existing normative powers in the Rwanda situation by establishing a treaty-based norm of intervention, the first time that a regional international instrument had ever done so. Thus, in both cases one cannot speak of a decline of international law.

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.

The impact of international criminal law and the ICC on national constitutional arrangements

Global Constitutionalism ◽

10.1017/s2045381715000064 ◽

2015 ◽

Vol 4 (2) ◽

pp. 227-253

Author(s):

RUPERT ELDERKIN

Keyword(s):

International Law ◽

Criminal Law ◽

International Criminal ◽

Criminal Court ◽

International Human Rights Law ◽

Humanitarian Law ◽

National Sovereignty ◽

Public International Law ◽

The Impact

AbstractInternational criminal law (ICL) developed in large part from international humanitarian law during the mid-to-late twentieth century. The International Criminal Court (ICC), a permanent institution to investigate and prosecute ICL cases finally was established in 2002. Although widely supported, certain states feared that the ICC would diminish national sovereignty. Yet, in formal legal terms, ICL and the ICC’s Rome Statute are just like other branches of public international law in terms of their relationship with national constitutional arrangements. ICL does not challenge states’ primary executive and judicial powers; it does not introduce any general rights for citizens or particularly onerous obligations for states that are already subject to the rule of law; and its intrusion on national sovereignty is only in evidence when a state’s leaders either are responsible for atrocities or are incapable of protecting their citizens from such atrocities. ICL thus is very different from international human rights law (IHRL), which directly impacts national constitutional arrangements. When ICL does come into play, however, arguably it may perform quasi-constitutional functions, in particular offering the only means under public international law to remove state officials from office when they are believed responsible for the most harmful abuses of power.

The Perestroika of International Criminal Law: Soviet Reforms and The Promise of Legal Primacy in International Governance

New Criminal Law Review An International and Interdisciplinary Journal ◽

10.1525/nclr.2020.23.2.236 ◽

2020 ◽

Vol 23 (2) ◽

pp. 236-270

Author(s):

Mikkel Jarle Christensen

Keyword(s):

International Law ◽

Criminal Law ◽

International Criminal ◽

Criminal Court ◽

International Governance ◽

Law And Politics ◽

Legal Thinking ◽

Domestic Law

This article examines how the perestroika gave rise to a new legal thinking that helped spark a broader transformation of international law and governance. Building on the sociology of Pierre Bourdieu, the article analyzes the emergence and short-lived influence of the professionals behind the new legal thinking of the perestroika. This elite operated at the crossroads between international and domestic law and politics. At this juncture, and in an attempt to safeguard and solidify their own position, they promoted the primacy of international law over politics by calling for, among other things, the establishment of an international criminal court. Building on the thinking of this elite that coexisted with concurrent streams of investments into international law from both East and West, a geopolitical window for new criminal law initiatives beyond the state was opened. It was in this brief window of opportunity that the field of international criminal justice was developed as a reflection of a wider universalist promise of establishing legal primacy in international governance.

International Criminal Responsibility Concerning ‘Control over an Organization’ and Command Responsibility Lato Sensu

International Criminal Law Review ◽

10.1163/157181212x634162 ◽

2012 ◽

Vol 12 (2) ◽

pp. 293-300 ◽

Cited By ~ 1

Author(s):

Hiromi Satō

Keyword(s):

International Law ◽

Criminal Law ◽

Rome Statute ◽

International Criminal ◽

Criminal Responsibility ◽

Criminal Court ◽

Customary International Law

The International Criminal Court recently presented its arguments concerning criminal responsibility arising pursuant to the theory of ‘control over an organization’. This theory is based on the notion of ‘perpetrator-by-means’ found in the Rome Statute, Article 25(3)a. The court appears to have utilized this theory to establish principal responsibility for ordering in contrast to accessorial responsibility prescribed in Article 25(3)b of the said Statute. However, it should be noted that customary international law has long established the notion of command responsibility lato sensu, recognizing the serious and primary nature of superiors’ responsibility for ordering. This article argues that there should be some conscious sequence between the discussions of ‘control over an organization’ and command responsibility lato sensu for the sake of the integrity of the discourse in international criminal law.

The jurisdiction of the International Criminal Court for the crime of aggression

Law Review of Kyiv University of Law ◽

10.36695/2219-5521.3.2020.69 ◽

2020 ◽

pp. 374-378

Author(s):

Nataliia Plakhotniuk ◽

Maryna Irzhova

Keyword(s):

International Law ◽

Criminal Law ◽

Rome Statute ◽

International Criminal ◽

International Crime ◽

Criminal Court ◽

Criminal Prosecution ◽

International Crimes

The article emphasizes that the crime of aggression is considered the most serious crime against peace since the Nuremberg Tribunal,which is recognized by both domestic and Western doctrine. Amendments to the Rome Statute in 2010 defined signs of aggressionas an international crime and clarified the rules for exercising the jurisdiction of the International criminal court. Optimistic expectationsfor establishing effective jurisdiction of the court over this international crime have been dashed. As a result, it is concluded thateffective international criminal prosecution of the crime of aggression is possible only if the norms of the Rome Charter that cause themost negative reaction from the leading States are reviewed.It should be noted that in respect of a state that is not a party to the Rome Statute, the Court will not exercise its jurisdiction overthe crime of aggression committed by nationals of that state or on its territory.The International criminal court should serve as a symbol of international justice, which makes just decisions related to violationsof international law. As for the procedure for implementing the proceedings of the International criminal court, it is worth noting thatsuch a procedure for executing the decision of the ISS is double. The dual procedure for the enforcement of decisions of the InternationalCriminal Court is the Foundation of the Rome Charter and represents a new system in the history of public international law inthe field of international responsibility.Thus, it is possible to see that although at first glance the long process of formulating and adopting a unified definition of thecrime of aggression at the international level to succeed, thorough the consideration allows you to comprehend the profound incompletenessof this process. Features of the crime of aggression provided for in the draft edits the Rome Statute, as well as the amendmentmechanism itself, illustrate the real lack of a mechanism for holding individuals internationally responsible for its Commission, as wellas the rather disappointing prospect of positive changes in the near future.Despite the conflicts that arise between the norms of national criminal law and the provisions of the ISS Charter, the procedureitself is an effective legal instrument aimed at maintaining international peace and security. The joint work of the International CriminalCourt and the UN Security Council makes it possible to try cases of international crimes and take effective measures to counter suchcrimes. As a key component of the International criminal justice system, the International criminal Court is one of the most significantinstitutions of international criminal law, which is constantly developing and to a certain extent affects the patterns in the developmentof mechanisms for the investigation of international crimes and the protection of human rights at the international and national levels.

14. International Criminal Law

Cases & Materials on International Law ◽

10.1093/he/9780198727644.003.0014 ◽

2016 ◽

Author(s):

Martin Dixon ◽

Robert McCorquodale ◽

Sarah Williams

Keyword(s):

International Law ◽

Criminal Law ◽

International Criminal ◽

Criminal Court ◽

Criminal Courts ◽

Political Will ◽

National Courts ◽

International Criminal Tribunals

This chapter addresses the prosecution of crimes in international criminal courts according to international—not national—criminal law. International law has long recognised that certain conduct, for example piracy and slavery, are crimes against international law which may be tried by international bodies or by any State. This principle has been expanded to cover more substantive crimes. International mechanisms for criminal accountability may be established where national courts have failed or are unable to try offenders due to a lack of political will, insufficient resources, deficiencies in national law, and/or ongoing conflict. The establishment and jurisdiction of the existing international criminal tribunals, including the International Criminal Court, are considered.

The jurisdiction of the International Criminal Court for the crime of aggression

Law Review of Kyiv University of Law ◽

10.36695/2219-5521.3.2020.22 ◽

2020 ◽

pp. 374-378

Author(s):

Nataliia Plakhotniuk ◽

Maryna Irzhova

Keyword(s):

International Law ◽

Criminal Law ◽

Rome Statute ◽

International Criminal ◽

International Crime ◽

Criminal Court ◽

Criminal Prosecution ◽

International Crimes

The article emphasizes that the crime of aggression is considered the most serious crime against peace since the Nuremberg Tribunal,which is recognized by both domestic and Western doctrine. Amendments to the Rome Statute in 2010 defined signs of aggressionas an international crime and clarified the rules for exercising the jurisdiction of the International criminal court. Optimistic expectationsfor establishing effective jurisdiction of the court over this international crime have been dashed. As a result, it is concluded thateffective international criminal prosecution of the crime of aggression is possible only if the norms of the Rome Charter that cause themost negative reaction from the leading States are reviewed.It should be noted that in respect of a state that is not a party to the Rome Statute, the Court will not exercise its jurisdiction overthe crime of aggression committed by nationals of that state or on its territory.The International criminal court should serve as a symbol of international justice, which makes just decisions related to violationsof international law. As for the procedure for implementing the proceedings of the International criminal court, it is worth noting thatsuch a procedure for executing the decision of the ISS is double. The dual procedure for the enforcement of decisions of the InternationalCriminal Court is the Foundation of the Rome Charter and represents a new system in the history of public international law inthe field of international responsibility.Thus, it is possible to see that although at first glance the long process of formulating and adopting a unified definition of thecrime of aggression at the international level to succeed, thorough the consideration allows you to comprehend the profound incompletenessof this process. Features of the crime of aggression provided for in the draft edits the Rome Statute, as well as the amendmentmechanism itself, illustrate the real lack of a mechanism for holding individuals internationally responsible for its Commission, as wellas the rather disappointing prospect of positive changes in the near future.Despite the conflicts that arise between the norms of national criminal law and the provisions of the ISS Charter, the procedureitself is an effective legal instrument aimed at maintaining international peace and security. The joint work of the International CriminalCourt and the UN Security Council makes it possible to try cases of international crimes and take effective measures to counter suchcrimes. As a key component of the International criminal justice system, the International criminal Court is one of the most significantinstitutions of international criminal law, which is constantly developing and to a certain extent affects the patterns in the developmentof mechanisms for the investigation of international crimes and the protection of human rights at the international and national levels.

17. International criminal law

International Law ◽

10.1093/he/9780198748830.003.0017 ◽

2019 ◽

pp. 439-467

Author(s):

Gleider Hernández

Keyword(s):

International Law ◽

Criminal Law ◽

International Criminal ◽

Criminal Responsibility ◽

Criminal Court ◽

Crimes Against Humanity ◽

Customary International Law ◽

Fundamental Shift

This chapter describes international criminal law. International criminal law represented a fundamental shift for international law. Historically, international law regarded accountability and responsibility almost purely through the lens of the State and contained neither substantive rules nor the requisite institutions to prosecute an individual. Today, there exist several institutions, most prominently the International Criminal Court (ICC), which have given shape both to the substance of the crimes themselves and to the method for their effective prosecution. Through international criminal law, the criminal responsibility and liability of individuals, even if acting in groups, are now addressed internationally. There is a category of indisputable ‘core crimes’ under customary international law: genocide, crimes against humanity, war crimes, and aggression. These are helpfully defined in an ICC document called the ‘Elements of Crimes’, which is intended to guide the Court in the interpretation and application of these crimes.

The Immunity Question before the International Criminal Court: Revisiting African Sovereignty and the Colonial Origins of International Law

African Journal of International and Comparative Law ◽

10.3366/ajicl.2021.0370 ◽

2021 ◽

Vol 29 (3) ◽

pp. 341-361

Author(s):

Linda Mushoriwa

Keyword(s):

International Law ◽

Criminal Law ◽

International Criminal ◽

Criminal Court ◽

Clear Understanding ◽

African Union ◽

Contentious Issue ◽

Head Of State

This article discusses the contentious issue of Head of State of immunity before the International Criminal Court (ICC) in the context of the historical link between the colonial confrontation of the nineteenth century and the development of the doctrines of state sovereignty and immunity. It examines the philosophical underpinnings of the immunity in international criminal law debate and concludes that a clear understanding of the role that colonialism played in the development of international law is pivotal to understanding the concerns raised by the African Union and individual African leaders regarding the indictment of African leaders by the ICC.