‘Cosmopolitan Citizenship’, Territorial Borders, and Bringing Denationalized Terrorists to Justice

This article challenges scholarly claims that a post-national ‘cosmopolitan citizenship’ — an expanded and less territorially bounded belonging of ‘humanity’ — has been emerging in the international criminal justice context. In examining the contemporary denationalization of terrorists from the under-explored angle of criminal justice, this article argues that states’ territorial borders prevent denationalized terrorists — deemed enemies of ‘humanity’ — from being brought to justice. Some states strip citizenship from terrorists without holding them accountable for terrorist offences and international crimes, subsequently deporting them to — or leaving them stranded in — states which are, according to international criminal law, ‘unable’ or ‘unwilling’ to prosecute. As such, states’ territorial borders serve as a ‘shield’ which not only enable denationalized terrorists to avoid accountability for their terrorist offences and international crimes, but which also enable states to avoid their international obligations to bring terrorists to justice. This case study of denationalized terrorists not only demonstrates the enduring relevance of territoriality to international criminal justice but also broadly demonstrates how post-national ‘citizenship’ remains tied to the territorial state in a globalized world.

Judicial Review under Article 15 of the Rome Statute and the ‘Interests of Justice’

The Office of the Prosecutor’s preliminary examination into the Situation in Afghanistan came to an end with the Appeals Chamber approving its request for authorization of an investigation. In doing so it overturned the decision of the Pre-Trial Chamber, which for the first time in the International Criminal Court’s history had invoked the criterion of ‘interests of justice’ to deny the request. Both decisions raised questions as to the scope of review of the Pre-Trial Chamber under Article 15 and its relationship with Article 53 of the Rome Statute. This article delves into some of these questions. First, it looks into whether the Appeals Chamber was correct to hold that the Pre-Trial Chamber is not supposed to review the factors under Article 53(1). It answers this question in the negative, arguing that the Appeals Chamber’s decision goes against the text of the Rome Statute, and the International Criminal Court’s past practice. Secondly, it analyses whether the Pre-Trial Chamber can assess whether or not an investigation serves the ‘interests of justice’, even if the Prosecutor has not made an explicit finding in this regard. It argues that the context and purpose of Article 15 envisages a genuine and meaningful examination of the Prosecutor’s request, which includes the ability to evaluate, suo motu, the applicability of the ‘interests of justice’ criterion. Lastly, the article addresses whether the factors that were considered by the Pre-Trial Chamber in its Afghanistan Article 15 Decision were suited to its judicial role. It proposes a methodology for the Pre-Trial Chambers to adopt while exercising their powers under Article 15, which allows for both prosecutorial discretion and a meaningful judicial review. The article attempts to put forth a renewed understanding of the Rome Statute and argues that the Pre-Trial Chamber has a wider power of review under Article 15 than has been hitherto exercised, which, if exercised reasonably, can further the cause of international criminal justice.

COVID-19 and International Crimes Trials in Germany

With the appearance of the COVID-19 virus, the world faces new challenges in almost every area of social life. Social distancing and protection measures provide new challenges in business relations. This also holds true for criminal trials in general, and for international criminal trials, in particular. In Germany, several trials concerning charges of crimes under international law, established by the German Code of Crimes Against International Law (Völkerstrafgesetzbuch), are currently in progress. In particular, the trial against two former Syrian intelligence officers, which is currently taking place before the Higher Regional Court in Koblenz, has received international attention and will possibly be affected by the restrictions imposed.

Measuring Performance and Shaping Identity

Amid pressure to increase the efficiency and effectiveness of the International Criminal Court (ICC), work has progressed on the development of a set of performance indicators for the ICC. This article argues that performance indicators play into tensions that underpin the international criminal justice process at the ICC, in particular between expeditiousness, on the one hand, and fairness and victim satisfaction, on the other. It argues that while the ICC’s performance indicators extend assessment of the ICC beyond the speedy completion of cases and embrace goals of fairness and victim access to justice, they inevitably support the former to the detriment of the latter, with implications for the Court’s identity. While acknowledging the benefits of performance indicators for the ICC, the article outlines several measures to counter the risks that they pose for the balance between these goals.