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.

Broadening International Criminal Jurisdiction?

2015 ◽  
Vol 4 (1) ◽  
pp. 53-80
Author(s):  
Solon Solomon
Keyword(s):  
Security Council ◽  
Criminal Law ◽  
International Criminal Court ◽  
Rome Statute ◽  
International Criminal ◽  
Criminal Court ◽  
International Criminal Law ◽  
Criminal Jurisdiction ◽  
Broad Interpretation ◽  
The Right

The interests of justice are embedded in Article 53 (1) of the Rome Statute of the International Criminal Court (Rome Statute). They give the Prosecutor the right to decline to initiate an investigation or suspend a prosecution. In these cases, the interests of justice act as a basis for the Prosecutor to refrain from any action. This article argues that due to their non-positivist character, the interests of justice could serve as the platform also of prosecutorial action, acting as the legal vehicle for a broad interpretation of the Rome Statute in the name of justice. Nevertheless, such broad, interests of justice-instigated interpretation, cannot but have positivism as its outmost limit. The Rome Statute is an international criminal law instrument and international criminal law is governed by the legality principle, which narrows any hermeneutical endeavors. Along these lines, this article examines the nexus between the expansive interpretational interests of justice function and its limits by referring to cases where the International Criminal Court (icc) was called to endorse or not a broad interpretation of notions included in the Rome Statute. The article examines cases arising from situations referred to the icc by States and by the un Security Council.

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.

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

2020 ◽  
Vol 23 (2) ◽  
pp. 236-270
Author(s):  
Mikkel Jarle Christensen
Keyword(s):  
International Law ◽  
Criminal Law ◽  
International Criminal Court ◽  
International Criminal ◽  
Criminal Court ◽  
International Criminal Law ◽  
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.

scholarly journals Genocide in Light of the Principles and Rules of International Law

2015 ◽  
Vol 12 (1) ◽  
pp. 247
Author(s):  
Mohamad Badrnajad Horand ◽  
Babak Pourghahramani
Keyword(s):  
International Law ◽  
Security Council ◽  
International Organizations ◽  
International Criminal Court ◽  
International Criminal ◽  
Criminal Court ◽  
Right To Life ◽  
Un Security Council ◽  
Terrorist Groups ◽  
The Right

<p>In Article 2 (4) of the UN Charter has agreed that members of the United Nations must not intervene in internal affairs of another country, and sovereignty and territorial integrity of countries must be respected. Now in Syria, ISIL terrorist group is committed crimes against Shiites with the involvement of Western and Arabic countries, most of which are permanent members of the Security Council. Crimes that deprive peace, security and the right to life, causing disruption to international and regional peace and security must be prosecuted not to witness the occurrence of such crimes. Killings committed by terrorist groups against Shiites in Syria are genocide under Article 6 of the Statute of the International Criminal Court and lack of attention to crimes committed by terrorist groups in international institutions such as the International Criminal Court continues to bring chaos for the international community and are the unpleasant results resulting from weakness of courts and international organizations including the UN Security Council.</p>

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

2012 ◽  
Vol 12 (2) ◽  
pp. 293-300 ◽  
Author(s):  
Hiromi Satō
Keyword(s):  
International Law ◽  
Criminal Law ◽  
International Criminal Court ◽  
Rome Statute ◽  
International Criminal ◽  
Criminal Responsibility ◽  
Criminal Court ◽  
International Criminal Law ◽  
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.

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

2020 ◽  
pp. 374-378
Author(s):  
Nataliia Plakhotniuk ◽  
Maryna Irzhova
Keyword(s):  
International Law ◽  
Criminal Law ◽  
International Criminal Court ◽  
Rome Statute ◽  
International Criminal ◽  
International Crime ◽  
Criminal Court ◽  
International Criminal Law ◽  
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.

scholarly journals Shifting Priorities: Are Attitudes Changing at the International Criminal Court about Trials in absentia?

2021 ◽  
pp. 1-29
Author(s):  
Caleb H. Wheeler
Keyword(s):  
Criminal Law ◽  
General Principle ◽  
International Criminal Court ◽  
Rome Statute ◽  
International Criminal ◽  
Criminal Court ◽  
International Criminal Law ◽  
Future Trial ◽  
The Right

Abstract A recent decision by the International Criminal Court’s Appeals Chamber in the Gbagbo and Blé Goudé case raised the possibility of a shift away from the long-standing practice of only holding trial in the presence of the accused. The final paragraphs of the 28 May 2020 decision asserts that any future trial proceedings in the Gbagbo et al. case could be held in the absence of the defendants should Mr Gbagbo and Mr Blé Goudé be released from custody and then later fail to appear for trial. This article examines the Appeals Chamber’s decision in light of the Court’s Statute, existing jurisprudence at the icc and within the larger context of international criminal law. It concludes that the Appeals Chamber’s decision fails to properly understand the right to be present at trial as it exists in the Rome Statute nor does it comply with any identified general principle of law.

14. International Criminal Law

2016 ◽  
Author(s):  
Martin Dixon ◽  
Robert McCorquodale ◽  
Sarah Williams
Keyword(s):  
International Law ◽  
Criminal Law ◽  
International Criminal Court ◽  
International Criminal ◽  
Criminal Court ◽  
International Criminal Law ◽  
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 Lasting Legacy of Double Standards: The International Criminal Court and the UN Security Council Referral Mechanism

2020 ◽  
Vol 20 (2) ◽  
pp. 251-284
Author(s):  
Gabriel M. Lentner
Keyword(s):  
Case Studies ◽  
Security Council ◽  
Criminal Law ◽  
International Criminal Court ◽  
Structural Changes ◽  
International Criminal ◽  
Criminal Court ◽  
International Criminal Law ◽  
Double Standards ◽  
Un Security Council

Common narratives in international criminal law give the impression that the arc of international criminal law is long but bends towards justice. In this article, I wish to challenge this and show that we actually see more of the same. I adopt a consequentialist approach for analysing these issues: what are the real outcomes of the structural changes that happened via the involvement of the UN Security Council (unsc) and are they driven more by power or principle? Through case studies of the two existing referrals of the situations of Darfur and Libya I challenge the progress narrative often implied in international criminal law discourse. I show that through the institutional structure and limitations in practice, the unsc referral mechanism operates as a continuation of double standards by other means and that power influences accountability much more than principle even without direct unsc intervention.

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

2020 ◽  
pp. 374-378
Author(s):  
Nataliia Plakhotniuk ◽  
Maryna Irzhova
Keyword(s):  
International Law ◽  
Criminal Law ◽  
International Criminal Court ◽  
Rome Statute ◽  
International Criminal ◽  
International Crime ◽  
Criminal Court ◽  
International Criminal Law ◽  
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.

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