scholarly journals IMPORTANCE OF THE BEMBA CASE FOR THE INSTITUTE OF PERSONAL RESPONSIBILITY OF COMMANDERS AND OTHER SUPERIORS FOR THE COMMITMENT OF CRIMES AGAINST INTERNATIONAL LAW BY THEIR SUBORDINATES

2021 ◽  
pp. 109-114
Author(s):  
B. I. Nedilko
Keyword(s):  
International Law ◽  
International Criminal Court ◽  
Armed Conflict ◽  
Rome Statute ◽  
International Criminal ◽  
Personal Responsibility ◽  
Trial Chamber ◽  
Criminal Court ◽  
International Criminal Law ◽  
First Case

This article is devoted to the analysis of the Jean-Pierre Bemba Gombo case of the International Criminal Court. He was a Congolese politician, as well as the founder and the head of non-governmental armed group, named “Movement for the Liberation of Congo”, which members committed number of crimes during armed conflict in Central African Republic. The importance of this case lies in the fact, that it was the first case of the International Criminal Court, where the accused was charged with crimes, committed by his subordinates, and not by the accused himself. This article reveals the main contradictions between the judgments of the Trial Chamber, which found Bemba guilty, and the Appeals Chamber, which acquitted him. The legal basics of the institute of personal responsibility of commanders and other superiors in international criminal law, which were formed in the decision of the Appeals Chamber in the Bemba case, are highlighted therein. The author addresses and analyzes the grounds for recognizing commanders and other superiors guilty for committing crimes by their subordinates. It was discovered, that Article 28 of the Rome Statute requires the commanders to take only necessary or reasonable measures to prevent or punish the crimes, committed by their subordinates, not all possible measures at the relevant time. The Trial Chamber should specify what exactly the accused had to do to prevent or punish the crimes, as well as inform the accused of it prior to the hearing. It is also necessary to take into account objective circumstances, that could prevent the commander from adequately responding to the commission of crimes by his subordinates, especially if they operated in the territory of another state. The commander's ability to take the necessary or reasonable measures to prevent or punish the crimes, committed by his subordinates, should be analyzed in relation to each individual crime he is charged with, and not in relation to all the actions of subordinates as a whole. At last, the Appeals Chamber provided an exhaustive list of criteria for determining whether the measures, taken by the commander, were sufficient.

The Denial of the Right of Return as a Rome Statute Crime

2020 ◽  
Author(s):  
Micheal G Kearney
Keyword(s):  
International Law ◽  
International Criminal Court ◽  
Rome Statute ◽  
Final Section ◽  
International Criminal ◽  
Trial Chamber ◽  
Criminal Court ◽  
Central Importance ◽  
Right Of Return ◽  
The Right

Abstract In 2018, Pre-Trial Chamber I of the International Criminal Court (ICC) held that conduct preventing the return of members of the Rohingya people to Myanmar could fall within Article 7(1)(k) of the Statute, on the grounds that denial of the right of return constitutes a crime against humanity. No international tribunal has prosecuted this conduct as a discrete violation, but given the significance of the right of return to Palestinians, it can be expected that such an offence would be of central importance should the ICC investigate the situation in Palestine. This comment will review the recognition of this crime against humanity during the process prompted by the Prosecutor’s 2018 Request for a ruling as to the Court’s jurisdiction over trans-boundary crimes in Bangladesh/Myanmar. It will consider the basis for the right of return in general international law, with a specific focus on the Palestinian right of return. The final section will review the elements of the denial of right of return as a crime against humanity, as proposed by the Office of the Prosecutor in its 2019 Request for Authorization of an investigation in Bangladesh/Myanmar.

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 notion of “protracted armed conflict” in the Rome Statute and the termination of armed conflicts under international law: An analysis of select issues

2019 ◽  
Vol 101 (912) ◽  
pp. 1091-1115
Author(s):  
Dustin A. Lewis
Keyword(s):  
International Law ◽  
Armed Conflict ◽  
Rome Statute ◽  
International Criminal ◽  
Criminal Court ◽  
Armed Conflicts ◽  
International Criminal Law ◽  
General Category ◽  
Humanitarian Law ◽  
Principles And Standards

AbstractLegal controversies and disagreements have arisen about the timing and duration of numerous contemporary armed conflicts, not least regarding how to discern precisely when those conflicts began and when they ended (if indeed they have ended). The existence of several long-running conflicts – some stretching across decades – and the corresponding suffering that they entail accentuate the stakes of these debates. To help shed light on some select aspects of the duration of contemporary wars, this article analyzes two sets of legal issues: first, the notion of “protracted armed conflict” as formulated in a war-crimes-related provision of the Rome Statute of the International Criminal Court, and second, the rules, principles and standards laid down in international humanitarian law and international criminal law pertaining to when armed conflicts have come to an end. The upshot of the analysis is that under existing international law, there is no general category of “protracted armed conflict”; that the question of whether to pursue such a category raises numerous challenges; and that several dimensions of the law concerning the end of armed conflict are unsettled.

Head of State Immunity and the Rome Statute: A Critique of the ptc’s Malawi and drc Decisions

2016 ◽  
Vol 16 (4) ◽  
pp. 703-729 ◽  
Author(s):  
Michael Ramsden ◽  
Isaac Yeung
Keyword(s):  
International Law ◽  
International Criminal Court ◽  
Rome Statute ◽  
International Criminal ◽  
Trial Chamber ◽  
Criminal Court ◽  
Customary International Law ◽  
State Immunity ◽  
Head Of State ◽  
International Court

The scope and effect of the Head of State immunity doctrine before the International Criminal Court has prompted much discussion following the 2011 decision of the first Pre-Trial Chamber concerning the immunity of serving Sudanese President, Omar Al Bashir. The ptcI held that, as a matter of customary international law, there existed an exception to Head of State immunity where such official is sought by an international court with jurisdiction, here the icc. In an apparent retreat, a differently constituted ptc in 2014 based the inapplicability of such immunity on the terms of Security Council Resolution 1593. Using the 2011 and 2014 ptc decisions as a critical lens, and drawing upon recent material, this article assesses the proper application of Head of State immunity under Article 98(1) of the Rome Statute.

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.

“Situation in Palestine” (Int'l Crim. Ct. Pre-Trial Chamber)

2021 ◽  
pp. 1-74
Author(s):  
Anne Bayefsky
Keyword(s):  
International Law ◽  
International Criminal Court ◽  
Rome Statute ◽  
International Criminal ◽  
Trial Chamber ◽  
Criminal Court ◽  
State Party ◽  
The Third ◽  
Territorial Jurisdiction

On February 5, 2021, the Pre-Trial Chamber (PTC) of the International Criminal Court (ICC) delivered its decision on territorial jurisdiction in the “Situation in Palestine.” The result reflects the controversy surrounding the process and the merits: a divided bench, with a Minority decision three times the length of that of the Majority. The outcome marked the culmination of sustained attempts by Palestinians and their supporters over more than two decades to engage the ICC, beginning with contentious negotiations preceding the vote on the Rome Statute at the Rome Conference and including three preliminary examinations, the third of which concluded with this decision. The Rome Statute, adopted by vote on July 17, 1998, included elements that negotiators acknowledged had never appeared before in international law, and were directed at an Israeli target. For this reason, in large part Israel, which had long supported the principle of an international criminal court, chose not to become a state party to the Statute or to participate in the proceedings.

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.

Situation in the Islamic Republic of Afghanistan (Int'l Crim. Ct. App. Chamber)

2020 ◽  
pp. 1-23
Author(s):  
Ryan Vogel
Keyword(s):  
International Criminal Court ◽  
Armed Conflict ◽  
Rome Statute ◽  
International Criminal ◽  
Trial Chamber ◽  
Criminal Court ◽  
Islamic Republic

On March 5, 2020, the Appeals Chamber of the International Criminal Court (ICC) delivered its unanimous Decision Pursuant to Article 15 of the Rome Statute on the Authorisation of an Investigation into the Situation in the Islamic Republic of Afghanistan. The decision came after an appeal of the Pre-Trial Chamber II's unanimous decision in April 2019 rejecting the Prosecutor's request to proceed with an investigation. The Appeals Chamber's decision allows the prosecutor to immediately begin an investigation “in relation to alleged crimes committed on the territory of Afghanistan in the period since 1 May 2003, as well as other alleged crimes that have a nexus to the armed conflict in Afghanistan and are sufficiently linked to the situation and were committed on the territory of other States Parties in the period since 1 July 2002.”

Theory and practice of mixing procedural models in the Pre-trial Chamber of the International Criminal Court mechanism of functioning

2020 ◽  
Vol 10 (4) ◽  
pp. 100-111
Author(s):  
Denis Pechegin
Keyword(s):  
International Criminal Court ◽  
Rome Statute ◽  
International Criminal ◽  
Balance Of Power ◽  
Trial Chamber ◽  
Criminal Court ◽  
Theory And Practice ◽  
International Standards ◽  
Legal Proceedings ◽  
Honorary Doctor

The increasing interpenetration of the main models of the process and the approval of international standards for the production of criminal cases raise the question of the development and improvement of the form of legal proceedings in the category of the most relevant in modern science. On the one hand, the attention of many scientists is focused on strengthening the competitive core of the process and ensuring, as far as possible, a balance of power between the parties. On the other hand, it is stated that legal proceedings that do not pursue the goal of achieving material truth, especially due to the absolute nature of the principle of competition, lead to excessive formalism that has nothing to do with fair trial. The solution to the problem of combining trial models (the balance of adversarial and investigative cores) is seen in the International Criminal Court. The procedure of criminal proceedings in the International Criminal Court is the result of special scientific modeling taking into account the indicated doctrinal trends, and the degree of generalization of approaches of leading legal families in the structure of the Rome Statute of the International Criminal Court is so high that it allows us to speak about the universality of this procedural system. If the predecessors of the International Criminal Court preference were really given only one started (so, the ICTY was based on the example of the Anglo-Saxon adversarial procedure model with the “American accent”), the Rome Statute of the International Criminal Court reflected the trend to the initial formation of a balanced trial procedures designed to overcome the deviations in the balance of power by introducing an adversarial process with “inquisitorial” elements: for example, the Pre-trial Chamber, duties of the Prosecutor fully and objectively investigate the circumstances of the case, the duties of the court of first instance to establish the truth in the case. However, this does not mean any disregard for the adversarial core at the pre-trial stage. The article is devoted to theoretical and practical aspects of the combination of adversarial and investigative cores in the activities of the pre-trial Chamber of the International criminal court and reflects the results of a study led by professor Anita Ušacka, honorary doctor of law, in the preparation of a Commentary to the Rome Statute in Russian.

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