scholarly journals Looking for the child soldier

2020 ◽  
Vol 4 (1) ◽  
pp. 46-70
Author(s):  
Milena Jakšić
Keyword(s):  
International Criminal ◽  
Child Soldiers ◽  
Trial Chamber ◽  
Criminal Court ◽  
Criminal Investigation ◽  
Child Soldier ◽  
Legal Proceedings ◽  
First Case ◽  
Former Child Soldiers ◽  
The Hague

This article follows a criminal investigation for recruitment of child soldiers, by asking the following questions: how does one find child soldiers? How does one bring them onto the judicial stage? The article explores the different moments that marked the investigation by the Office of the Prosecutor in the first case brought before the International Criminal Court in The Hague, that of Thomas Lubanga Dyilo. After describing the successive stages of the investigation, the article analyses the conditions under which former child soldiers testified before the ICC. None of their nine testimonies was judged credible by the ICC Trial Chamber I. The different moments that marked these legal proceedings bring to light the instability of the category of child soldier and the uncertainty that regularly threatens the labour of judicial elucidation.

Better Late than Never: Reparations for Sexual Violence in the Ntaganda case before the International Criminal Court

2021 ◽  
Vol 2 (1) ◽  
pp. 27-47
Author(s):  
Sunneva Gilmore
Keyword(s):  
Sexual Violence ◽  
International Criminal Court ◽  
International Criminal ◽  
Child Soldiers ◽  
Trial Chamber ◽  
Criminal Court ◽  
Crimes Against Humanity ◽  
Medical Background ◽  
Modest Contribution ◽  
First Time

The Prosecutor v Bosco Ntaganda case at the International Criminal Court (ICC) represents the long awaited first reparation order for sexual violence at the court. This will hopefully see the implementation of reparations for the war crimes and crimes against humanity of rape and sexual slavery among civilians and former child soldiers, after previous cases such as against Jean-Pierre Bembe and Laurent Gbagbo were acquitted of rape. This article drawing from the author's role as a reparation expert in the case, is a reflection on the challenges of designing and providing reparations at the ICC against convicted individuals, as well as amidst insecurity and the COVID-19 infectious disease pandemic. It begins by discussing how the Ntaganda reparation order expanded reparation principles for the first time since the Lubanga case, in particular for crimes of a sexual nature. This is followed by an outline of some of the harms as a result of sexual violence from the perspective of an expert with a medical background. The analysis then turns to the appropriate reparations in this case and the details contained within the chamber's reparation order. Final conclusions consider how the procedural and substantive elements of reparations in this case will be instructive to future cases that address sexual violence. Ultimately, key insights are offered on the modest contribution an appointed reparation expert can do in assisting a trial chamber in the reparation process.

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.

scholarly journals Managing Frozen Assets at the International Criminal Court

2020 ◽  
Vol 18 (3) ◽  
pp. 765-790
Author(s):  
Daley J Birkett
Keyword(s):  
International Criminal Court ◽  
International Criminal ◽  
War Crimes ◽  
Legal Framework ◽  
Trial Chamber ◽  
Criminal Court ◽  
Crimes Against Humanity ◽  
The Hague

Abstract On 8 June 2018, more than 10 years after his arrest, the Appeals Chamber of the International Criminal Court (ICC) reversed Jean-Pierre Bemba Gombo’s conviction by the Trial Chamber for crimes against humanity and war crimes, acquitting him of all charges. Soon after the start of his time in detention in The Hague, assets belonging to Bemba were frozen by states across a number of jurisdictions at the request of the ICC. Many of these assets remain frozen, more than 18 months after his acquittal. This article examines the consequences of prolonged asset freezes by the ICC through the lens of the Bemba case, demonstrating the existence of gaps in the legal framework applicable to the management of frozen assets under the ICC Statute system and suggesting possible responses thereto at the domestic and international levels.

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.

scholarly journals Investigative Delegations: Predictable Predicaments

AJIL Unbound ◽  
2019 ◽  
Vol 113 ◽  
pp. 267-272
Author(s):  
Nancy Amoury Combs
Keyword(s):  
International Criminal Court ◽  
International Criminal ◽  
Fair Trial ◽  
Trial Chamber ◽  
Criminal Court ◽  
Trial Process ◽  
First Case

When a Trial Chamber of the International Criminal Court (ICC) dismissed the court's very first case before trial, it made headlines worldwide. The Trial Chamber dismissed the case because the prosecutor repeatedly failed to disclose exculpatory evidence. He did so because he had obtained the evidence from the UN and NGOs pursuant to confidentiality agreements that prevented disclosure without permission, which the UN and NGOs had not granted. The prosecutor, stuck between two competing obligations—the disclosure obligation that he owed the accused and the confidentiality obligation that he owed the UN—adhered to the latter, a decision that the Trial Chamber deemed to “rupture” the trial process to such a degree that a fair trial was impossible.

Can Duress Exclude Criminal Responsibility of Former Child Soldiers? The Case of Dominic Ongwen Before the International Criminal Court

2020 ◽  
Vol 82 ◽  
pp. 78-100
Author(s):  
Patryk Gacka
Keyword(s):  
International Criminal Court ◽  
International Criminal ◽  
Criminal Responsibility ◽  
Child Soldiers ◽  
Negative Answer ◽  
Criminal Court ◽  
Armed Conflicts ◽  
International Criminal Law ◽  
The Social ◽  
Former Child Soldiers

The phenomenon of child soldiers encompasses up to half a million of adolescents around the world and is – without a doubt – one of the most pressing humanitarian problems of contemporary armed conflicts. This article aims at addressing this issue by examining an ongoing trial of Dominic Ongwen before the International Criminal Court. The first part is dedicated to the description of Dominic Ongwen’s life through the prism of the ‘victim’ and ‘perpetrator’ labels. In this respect I try to prove that in many situations these two labels do not fit the social reality which they are supposed to classify or categorize. In the second part, I refer to the taxonomy of defences, justifications, excuses and grounds for excluding criminal responsibility in domestic and international criminal law. I also analyse concepts of duress and necessity as they are codified in the Rome Statute of the International Criminal Court. On these basis, I give a negative answer to the question if Dominic Ongwen will be able to effectively invoke one of these defences in order to limit or exclude his criminal responsibility, while in conclusions I also provide a short assessment of ‘the law as it is’.

scholarly journals FOMER CHILD SOLDIERS: PRODUCT OF ARMED CONFLICTS AND HOW THE INTERNATIONAL CRIMINAL COURT FAILS TO SEE ITS SIGNIFICANCE

2019 ◽  
Vol 3 (2) ◽  
pp. 181-201
Author(s):  
Dino Panji Pananjung ◽  
Sigar Aji Poerana
Keyword(s):  
International Criminal Court ◽  
Rome Statute ◽  
International Criminal ◽  
Criminal Responsibility ◽  
Armed Forces ◽  
Child Soldiers ◽  
Criminal Court ◽  
Armed Conflicts ◽  
Former Child Soldiers ◽  
Keywords Child

AbstractIn armed conflicts, children are often kidnapped and forced to become child soldiers, they are also given forced indoctrination (by violence and threats) and are taught to commit crimes, such as looting and murder. Disobeyed children and those who try to escape will be punished in the form of torture or even being executed in front of other children's soldiers as a lesson so others will not follow their step. When they did not serve the armed forces anymore or they grew up and no longer held child status, they were given the title of "former child soldiers". These former child soldiers might still live in rebellious environments and commit serious crimes including international crimes under jurisdiction of International Criminal Court when they grow up. This research argues whether the International Criminal Court considers the historical status of the perpetrators who are former child soldiers as mitigating factor of their punishment. The research method used is the juridical normative approach. The result of this research shows the International Criminal Court has never considered the history of international criminals as child soldiers. However, the International Criminal Court may use the consideration beside what has been regulated in Rome Statute, such as Article 21(3). This is also based on the Judge's right for discretion in the Rome Statute to adjudicate, as what we can see in the Case of Omar Khadr. Keywords: Child Soldier, Criminal responsibility, International Criminal Court, Judgment and Sentencing, Rome Statute. AbstrakDalam konflik bersenjata, anak seringkali diculik dan dipaksa menjadi tantara anak, mereka juga didoktrin paksa (melalui kekerasan atau ancaman) serta diajakan untuk melakukan kejahatan seperti menjarah dan membunuh. Mereka yang tidak menurut dan yang mencoba melarikan diri akan dihukum dengan disiksa di hadapan para tantara anak lainnya sebagai contoh agar tidak ditiru oleh anak lainnya. Mereka disebut “mantan tantara anak” setelah tidak lagi menjadi teantara atau telah dewasa. Tidak menutup kemungkinan ketika dewasa mereka hidup dengan jiwa pemberontak dan melakukan kejahatan serius bahkan kejahatan internasional yang menjadi jurisdiksi Mahkamah Pidana Internasional. Penelitian ini membahas apakah Mahkamah Pidana Internasional mempertimbangkan riwayat seorang pelaku kejahatan internasional yang menjadi seorang mantan tentara anak untuk meringankan hukuman mereka. Metode penelitian yang digunakan adalah yuridis normatif. Hasil penelitian menunjukkan bahwa praktik Mahkamah Pidana Internasional tidak pernah mempertimbangkan latar belakang pelaku kejahatan internasional sebagai mantan tentara anak. Namun, Hakim Mahkamah Pidana Internasional dapat menggunakan ketentuan diluar Statuta Roma berdasarkan pasal 21(3). Hal ini juga didasari pada adanya diskresi Hakim untuk memutus dan mengadili diluar yang diatur di dalam Statuta Roma, seperti halnya Kasus Omar Khadr. Kata Kunci: Mahkamah Pidana Internasional, Pemidanaan, Pertanggungjawaban Pidana, Statuta Roma, Tentara Anak.

scholarly journals Recent Developments

2012 ◽  
Vol 1 (1) ◽  
pp. 137-147 ◽  
Author(s):  
Triestino Mariniello
Keyword(s):  
Criminal Law ◽  
International Criminal ◽  
Child Soldiers ◽  
Trial Chamber ◽  
Criminal Court ◽  
International Criminal Law ◽  
Recent Developments ◽  
Fundamental Values ◽  
Normative Value

On 14 March 2012, the Trial Chamber I of the International Criminal Court (ICC) delivered its first judgment in the first completed trial in the case against Thomas Lubanga Dyilo. Lubanga was found guilty as a co-perpetrator in the conscription and enlistment of children under the age of fifteen years and of using them to participate actively in hostilities. This article comments on the significance of the ICC judgment in the Lubanga case. It argues that the judgment contributes to the development and improvement of the normative value of international criminal law. It is also argued that the Lubanga judgment may offer interesting insights on the socio-pedagogical role of international criminal justice. Indeed, it is observed that it contributes to strengthening the sense of accountability for recruiting and using child soldiers, by stigmatising such acts as contrary to the fundamental values of the international community.

scholarly journals Prosecutor v. Jean-Pierre Bemba Gombo: Judgment on the Appeal of Mr. Jean-Pierre Bemba Gombo against Trial Chamber III's “Judgment Pursuant to Article 74 of the Statute” (Int'l Crim. Ct.)

2018 ◽  
Vol 57 (6) ◽  
pp. 1031-1079 ◽  
Author(s):  
Joseph Powderly
Keyword(s):  
International Criminal ◽  
Vice President ◽  
Trial Chamber ◽  
Criminal Court ◽  
International Criminal Law ◽  
Crimes Against Humanity ◽  
First Case ◽  
Majority Judgment ◽  
Republic Of The Congo ◽  
History Of

On June 8, 2018, the Appeals Chamber of the International Criminal Court (ICC) delivered its eagerly anticipated judgment on the appeal of Jean-Pierre Bemba Gombo against his conviction by Trial Chamber III in March 2016 for war crimes (murder, rape, and pillage) and crimes against humanity (murder and rape). Bemba's conviction was notable for the variety of “firsts” it gave rise to for the ICC. As a former vice-president of the transitional government of the Democratic Republic of the Congo (DRC) and president of the Mouvement de libération du Congo (MLC), he became the most senior leader to be successfully convicted by the ICC. His conviction was the first in which an individual was found responsible for the commission of crimes pursuant to command responsibility under Article 28 of the Rome Statute. Of particular significance was the fact that this was the first conviction at the ICC for acts of rape and sexual violence committed against women and men. Finally, this was the first case in the history of international criminal law where members of the defense team were arrested, tried, and convicted of crimes against the administration of justice during the course of the trial. The trial judgment was heralded as “a turning point in the ICC's history” following the debacles in the Lubanga, Katanga, Chui, and Kenya cases. However, we now have a new addition to the list of firsts: with the Appeals Chamber's majority judgment (decided 3-2), Bemba becomes the first accused to have his conviction overturned in full.

The Radically Routine Rohingya Case

2019 ◽  
Vol 17 (2) ◽  
pp. 325-345 ◽  
Author(s):  
Payam Akhavan
Keyword(s):  
Human Trafficking ◽  
International Criminal ◽  
Trial Chamber ◽  
Criminal Court ◽  
International Justice ◽  
State Party ◽  
Territorial Jurisdiction ◽  
International Boundary ◽  
Considerable Controversy ◽  
The Hague

Abstract The campaign of atrocities against Myanmar’s Rohingya minority is among the most pressing human rights challenges of our times. However, since Myanmar is not a party to the Statute of the International Criminal Court (ICC), proponents of international justice have been forced to pursue accountability through creative means. On 6 September 2018, the Pre-Trial Chamber of the ICC ruled that the Court had jurisdiction over some of the atrocities. Despite having been initiated in the territory of a non-state party (Myanmar), the Court held that the crime of deportation — that is, forced displacement across an international boundary — has been completed on the territory of a state party, namely Bangladesh. This unprecedented backdoor to The Hague has stirred considerable controversy, both in diplomatic and academic circles. Yet, just how radical is the deportation theory upheld in this Decision? It would seem that the exercise of territorial jurisdiction over crimes with transboundary elements is a rather routine and unremarkable practice among states and, by extension, with respect to the ICC. It is trite law that deportation — like human trafficking and similar crimes — is initiated in the territory of one state and completed in the territory of another state. Considered in this light, the so-called Rohingya case at the ICC is radically routine.

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