The Rapes Committed against the Yazidi Women: a Genocide?

Islamic State ◽

Current Definition ◽

Actus Reus ◽

History Of ◽

Definition Of

Rape has been used as a tool of war throughout the history of mankind. With the establishment of the International Criminal Court, rape was included in the Rome Statute, being internationally recognized as a war crime, a crime against humanity and a means to commit genocide. The Islamic State of Iraq and Syria, in its war to establish the caliphate, has carried out a campaign of sexual violence against women of religious minorities such as the Yazidi. This article examines the evolution of the definition of rape in International Criminal Law and applies the current definition to the crimes committed by ISIS against the Yazidi. The study assesses the elements of the actus reus of genocide and considers that the actions carried out by the Islamic State towards the Yazidi could qualify as a genocide by means of rape.

Specific Direction: An Unspecific Threshold

Groningen Journal of International Law ◽

10.21827/5bf3ea247dfc8 ◽

2019 ◽

Vol 6 (2) ◽

pp. 320

Author(s):

Dhruv Sharma

Keyword(s):

Rome Statute ◽

International Criminal ◽

Criminal Responsibility ◽

International Criminal Tribunal ◽

Charles Taylor ◽

Criminal Court ◽

Customary Law ◽

Specific Direction ◽

History Of

Aiding and abetting has been recognised as a form of individual criminal responsibility since the 1940’s when the first international tribunals were created. The form of responsibility had a relatively simplistic history of application until it faced an unprecedented upheaval through the introduction of the threshold of specific direction in the Perišić appeals judgment. The judgment has since been rejected by the Special Court of Sierra Leone (SCSL) in the Charles Taylor judgment and by the International Criminal Tribunal for Former Yugoslavia (ICTY) in Sainović, Popović and Stanišić and Simatović judgment. The present paper focuses on the relevance of the standard of specific direction before the International Criminal Court (ICC). It argues that the standard is unjustifiable under international criminal law as, firstly, no convictions or acquittals have been affected on the standard and, secondly and more importantly, the text of the Rome Statute has rejected the standard. The standard of specific direction has not legal pedigree under customary law, is contrary to the text of the Rome Statute and counter-intuitive to the objectives of the ICC as it unreasonably increases evidentiary requirements at the Court and consequently makes the fight against impunity, an already challenging task, even more difficult.

The Legal Politics of the Article 16 Decision: The International Criminal Court, the un Security Council and Ontologies of a Contemporary Compromise

African Journal of Legal Studies ◽

10.1163/17087384-12342049 ◽

2014 ◽

Vol 7 (3) ◽

pp. 297-319 ◽

Cited By ~ 6

Author(s):

Kamari Maxine Clarke ◽

Sarah-Jane Koulen

Keyword(s):

Rome Statute ◽

International Criminal ◽

African State ◽

Criminal Court ◽

Giorgio Agamben ◽

History Of ◽

The Law ◽

Ontological Shift

This introductory essay aims to offer a framework through which to make sense of the controversies arising from International Criminal Court (icc) intervention in Africa. One such controversy is related to the deployment of the powers to refer and defer icc cases central to Article 16 of the Rome Statute for the icc. The manner in which the unsc has employed this power has led critics – particularly on the African continent – to conclude that a range of geopolitics has undermined the judicial independence of the icc. The essay argues, therefore, that the drafting history of Article 16 of the Rome Statute shows the workings of the political origins of the law and the manner in which foundational inequalities were woven into the very fabric of the Rome Statute. Following theorists such as Giorgio Agamben and Walter Benjamin who have conceptualized law as violence and who have taken seriously the ways in which violence and inequality live on through the law, the authors argue that not only can contemporary ontologies of international criminal law not escape the politics of its making, but if we are to adequately address the conditions of violence in the postcolonial African state there must be an ontological shift in the way we conceptualize law. They propose a rethinking that acknowledges root causes of violence and that take seriously politically adumbrated histories of violence that continue live in the armature of the postcolonial state. Considering how and when political settlements are relevant and rethinking how complementarity and cooperation might work more effectively are key to the conceptual framework.

Interpreting International Crimes from a ‘Female Perspective’: Opportunities and Challenges for the International Criminal Court

10.1163/15718123-01702009 ◽

2017 ◽

Vol 17 (2) ◽

pp. 325-350 ◽

Cited By ~ 1

Author(s):

Rosemary Grey

Keyword(s):

Violence Against Women ◽

Gender Discrimination ◽

Rome Statute ◽

International Criminal ◽

Criminal Court ◽

International Crimes ◽

Judicial Decisions ◽

Women And Girls

What would it mean for the International Criminal Court (icc) to interpret the crimes within its jurisdiction without “adverse distinction” on the grounds of gender? Would it simply mean recognising that these crimes may be committed against men, women, boys and girls; or would it require a deeper rethinking of, and perhaps a departure from, conventional interpretations of these crimes? This article explores this question, using the crime against humanity of “apartheid” and the war crime of “using children in hostilities” as examples. The article takes into account legal sources, such as relevant treaties and judicial decisions, as well as empirical research that throw the reality of violence against women and girls into sharp relief. It is hoped that this exploration will lead to further discussion about gender discrimination in the interpretation of the Rome Statute crimes, and contribute to the development of a “feminist jurisprudence” in international criminal law.

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 Elephant in the Room: The Uneasy Task of Defining ‘Racial’ in International Criminal Law

10.1163/15718123-01503002 ◽

2015 ◽

Vol 15 (3) ◽

pp. 485-516

Author(s):

Carola Lingaas

Keyword(s):

Criminal Law ◽

Historical Development ◽

Rome Statute ◽

International Criminal ◽

Criminal Court ◽

Racial Groups ◽

Legal Norms ◽

Definition Of ◽

Principle Of Legality

The Rome Statute of the International Criminal Court contains the term ‘racial’ in its provisions on the crime of genocide, persecution and apartheid. However, it fails to provide for a definition of this historically burdened term. International criminal law is guided by the principle of legality and legal norms should be as narrowly defined as possible. This article will therefore attempt to provide a contemporary legal definition of ‘racial’. The article contains an overview of the historical development, the treatment of the issue of ‘race’ by anthropology and human rights, before turning to international criminal law. Cases dealt with by the ictr and the icty on ‘racial groups’ with regard to the crime of genocide will be analysed and categorised. The article concludes with a suggestion to juxtapose racial groups with ethnical groups, based on the perception of the perpetrator or the self-perception of the victims (subjective approach).

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.

s.VIII Boundaries, Ch.33 The Core Crimes of International Criminal Law

The Oxford Handbook of International Criminal Law ◽

10.1093/law/9780198825203.003.0034 ◽

2020 ◽

Author(s):

Schwöbel-Patel Christine

Keyword(s):

Criminal Law ◽

International Criminal ◽

Criminal Court ◽

Crimes Against Humanity ◽

International Crimes ◽

The Core ◽

History Of ◽

Political Economic

The ‘core’ crimes set out in the International Criminal Court’s Rome Statute - the crime of genocide, war crimes, crimes against humanity and aggression - are overwhelmingly assumed to be the most important international crimes. In this chapter, I unsettle the assumption of their inherent importance by revealing and problematising the civilizational, political-economic, and aesthetical biases behind designating these crimes as ‘core’. This is done by shedding light on discontinuities in the history of the core crimes, and unsettling the progress narrative ‘from Nuremberg to Rome’. More specifically, crimes associated with drug control are placed in conversation with the accepted history of the International Criminal Court (ICC) to exemplify a systematic editing of the dominant narrative of international criminal law.

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.

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.

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.