Conclusion

2020 ◽  
pp. 196-202
Author(s):  
Margaret M. deGuzman
Keyword(s):  
Decision Making ◽  
Criminal Law ◽  
Human Dignity ◽  
International Criminal Court ◽  
International Criminal ◽  
Criminal Court ◽  
International Criminal Law ◽  
Global Community ◽  
Community Values ◽  
Global Institutions

This book has examined the legal and theoretical bases for the often-cited claim that international criminal law addresses crimes of such gravity that they “shock the conscience of humanity.” It has argued that gravity as a justifying rationale is undertheorized and that the lack of consensus about the meaning of gravity undermines the legitimacy of the international criminal law regime. Addressing each of the decision-making contexts in which gravity plays an important role, the book has set forth proposals to operationalize the concept in ways that promise to better promote the regime's legitimacy. The book has suggested that for global institutions such as the international criminal court, gravity should be a function of global community values and goals, in particular, the value of promoting and protecting human dignity. It has advocated an inclusive dialogic process for identifying the particular values and goals associated with human dignity that ought to be given priority in each decision-making context in order to ensure that international criminal law serves as an effective tool of global crime prevention.

The Contestation of Value-Based Norms: Confirmation or Erosion of International Law?

2019 ◽  
pp. 311-334
Author(s):  
Tiyanjana Maluwa
Keyword(s):  
International Law ◽  
Security Council ◽  
Criminal Law ◽  
International Criminal Court ◽  
International Criminal ◽  
Criminal Court ◽  
International Criminal Law ◽  
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.

scholarly journals The Legacy of the ICTY and ICTR in China

AJIL Unbound ◽  
2016 ◽  
Vol 110 ◽  
pp. 245-250
Author(s):  
Bing Bing Jia
Keyword(s):  
Criminal Law ◽  
International Criminal Court ◽  
Rome Statute ◽  
Ad Hoc ◽  
International Criminal ◽  
International Criminal Tribunal ◽  
Criminal Court ◽  
Decision Makers ◽  
International Criminal Law ◽  
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.

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

2016 ◽  
Author(s):  
Schabas William A
Keyword(s):  
International Law ◽  
Criminal Law ◽  
International Criminal Court ◽  
Rome Statute ◽  
International Criminal ◽  
Criminal Responsibility ◽  
Criminal Court ◽  
International Criminal Law ◽  
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.

scholarly journals Sexual Exploitation and Beyond: Using the Rome Statute of the International Criminal Court to Prosecute UN Peacekeepers for Gender-based Crimes

2011 ◽  
Vol 11 (4) ◽  
pp. 803-827 ◽  
Author(s):  
Melanie O'Brien
Keyword(s):  
Criminal Law ◽  
International Criminal Court ◽  
Rome Statute ◽  
International Criminal ◽  
Sexual Exploitation ◽  
Real Life ◽  
Criminal Court ◽  
International Criminal Law ◽  
Applicable Law ◽  
Gender Based

AbstractAllegations and confirmed cases of misconduct by peacekeeping personnel have been revealed by non-governmental organisations, the press and UN investigations. The majority of misconduct has fallen under the term 'sexual exploitation and abuse'. Sexual exploitation and abuse has encompassed rape, sex with minors, trafficking, prostitution-related conduct, sexual exploitation, and other sexual abuse. This article discusses accountability in international criminal law for such conduct, first exploring the development of gender-based crime in international criminal law. The core of this article consists of an examination of the applicable law under the Rome Statute of the International Criminal Court, to determine whether or not the provisions could be used to prosecute peacekeepers for the crimes of rape, sexual slavery, sexual exploitation, prostitution-related conduct, and trafficking. Real life examples of criminal conduct by peacekeeping personnel will be given to test the applicability of the Rome Statute provisions.

Equal Standards? On the Dialectics between National Jurisdictions and the International Criminal Court

2008 ◽  
Vol 8 (1-2) ◽  
pp. 229-272 ◽  
Author(s):  
Harmen van der Wilt
Keyword(s):  
Criminal Law ◽  
International Criminal Court ◽  
International Criminal ◽  
Criminal Responsibility ◽  
Criminal Court ◽  
International Standards ◽  
International Criminal Law ◽  
Actual Performance ◽  
Legal Standards ◽  
Principle Of Complementarity

AbstractThe Rome Statute contains a body of legal standards on elements of the offences, concepts of criminal responsibility and defences of unprecedented detail. Whereas these standards serve the International Criminal Court as normative framework, the principle of complementarity implies that domestic jurisdictions are to take the lead in the adjudication of international crimes.This article addresses the question whether domestic legislators and courts are bound to meticulously apply the international standards, or whether they are left some leeway to apply their own (criminal) law. The article starts with a survey of the actual performance of national jurisdictions. Current international law does not explicitly compel states to copy the international standards; at most one might argue that the codification of international criminal law and the principle of complementarity encourage harmonization.Capitalizing on the concept of 'open texture of law' and the methodology of casuistry, the present author argues that a certain measure of diversity in the interpretation and application of international standards is inevitable and even desirable. However, as a general rule, states have less freedom of interpretation in respect of the elements of crimes than in the application of concepts of responsibility and defences.

Implications of Stripping Immunities of Heads of States on State Cooperation and the Effectiveness of Trial

2016 ◽  
Vol 1 (2) ◽  
pp. 71-93
Author(s):  
Patrick Kimani
Keyword(s):  
Criminal Law ◽  
International Criminal Court ◽  
Rome Statute ◽  
International Criminal ◽  
Criminal Court ◽  
International Criminal Law ◽  
Head Of State ◽  
Invisibility Cloak ◽  
The Hague ◽  
State Cooperation

The development of international criminal law in the last seven decades has seen a gradual erosion of the integrity of immunities for heads of states. The journey from Nuremberg to The Hague has resulted in a permanent international criminal court. Article 27(2) of the Rome Statute of the International Criminal Court (the Rome Statute) disregards immunities as an effective bar to the jurisdiction of the International Criminal Court (ICC). Heads of states have been stripped of their ‘invisibility cloak’ from international criminal prosecutions. The Rome Statute places its reliance on the situation state’s authorities to cooperate with the ICC in its investigation and prosecution of crimes. A special tension is noticeable in circumstances where an incumbent head of state is accused at ICC while his or her state is placed under the general cooperation obligation. This tension is clearly manifest in the two criminal processes against Uhuru Kenyatta and Al Bashir. Bearing in mind the significant political muscle a sitting head of state wields in their state, it is quite likely that their state’s authorities will be very reluctant to discharge their cooperation obligations. The prosecution of sitting heads of states remains a challenge. Is it time to rethink the structure of the ICC or the implementation of the Statute?

Introduction

2020 ◽  
pp. 1-8
Author(s):  
Margaret M. deGuzman
Keyword(s):  
Criminal Law ◽  
International Criminal ◽  
International Criminal Law ◽  
Global Community ◽  
Community Values

This book examines the role that the concept of gravity plays in determining the legitimacy of international criminal law. The Introduction sets forth the book’s central arguments that: (1) the international criminal law regime relies heavily on the concept of gravity to justify its existence and many of its decisions; (2) the concept is undertheorized and ambiguous; (3) the regime’s reliance on the concept undermines its legitimacy; (4) gravity should be reconceptualized as a function of the regime’s values and goals; and (5) the regime’s focus should be on global community values and goals, rather than on those of the national communities most directly affected by the crimes it addresses.

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