In association with the International Commission of Jurists

International Criminal Law

13 Oct

Fatou Bensouda has just formally asked the Pre-Trial Chamber to authorise an investigation into war crimes and crimes against humanity committed by South Ossetian and Georgian forces between 1 July 2008 and 10 October 2008. Here are the relevant paragraphs from the ICC's press release: The Situation in Georgia has been under preliminary examination by the Office of the Prosecutor since August 2008, when armed clashes...

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05 Oct

I stopped watching Crossing Lines about five episodes into Season 2 – about the time the ICC started investigating a series of home invasions. (Yes, really.) I had no intention of watching again, but I decided to give the show one more try at the urging of my friend Mel O’Brien. So a couple of nights ago I watched the...

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02 Oct

It's been widely reported over the past few days that Russia has been bombing the Free Syrian Army under the pretext of joining the fight against ISIS. That development spurred an interesting post at Lawfare by Bobby Chesney about whether Art. II of the Constitution -- the Commander-in-Chief Clause -- would permit the US to defend the FSA, which it has been...

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30 Sep

[Matt Brown is a current LLM student at Leiden University, studying Public International Law, with a specific interest in international criminal law, transitional justice and cultural heritage law. He tweets about these and other topics @_mattbrown.] The International Criminal Court concerns itself with the ‘most serious crimes of concern to the international community.’ Often we understand this term to reflect examples...

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26 Sep

States whose nationals died in the attack on MH17 were understandably upset when Russia vetoed a Security Council resolution that would have created an ad hoc tribunal to prosecute those responsible for the attack. Their idea to create a treaty-based court, however, is simply not helpful: Australia’s foreign minister, Julie Bishop, will meet with her counterparts from Belgium, Malaysia, the Netherlands and Ukraine on...

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22 Sep

The ICC has always had a legitimacy problem in Uganda. In particular, as Mark Kersten ably explained earlier this year, the Court is widely viewed by Ugandans as partial to Museveni, despite the fact that the OTP is supposedly investigating both the government and the LRA: From the outset, the ICC showcased a bias towards the Government of Yoweri Museveni. In 2004 and following months...

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11 Sep

[Alexandre Skander Galand is a Ph.D. Candidate at the European University Institute (EUI), Law Department.] In the aftermath of the last episode of the ‘Al-Bashir saga’, one might have wondered what the International Criminal Court (ICC) will do with the last report (filed on 17 June 2015) of the ICC registry concerning South Africa’s failure to arrest and surrender Sudan's President. The answer is now clear: there will be proceedings to determine whether South Africa failed to cooperate with the ICC. Indeed, last Friday 4 September, Pre-Trial Chamber II issued an “Order requesting submissions from the Republic of South Africa for the purposes of proceedings under article 87(7) of the Rome Statute”. As it is known, the Decision of Pretoria High Court Judge Hans Fabricius on 15 June directing the various executive authorities of South Africa to take all necessary steps to prevent President Omar Al-Bashir of Sudan from leaving South Africa was overlooked by the concerned authorities. On the next day, just after the High Court handed down its decision that Al-Bashir be arrested and detained, the counsel for the South African executive authorities informed the Court that Sudan's President had already left the country. The ‘Al-Bashir Saga’ raises the question of whether it is crystal clear that Al-Bashir is not immune from the ICC and its States parties’ exercise of jurisdiction. Is the immunity of Heads of States not parties to the Rome Statute completely irrelevant when a State enforces an ICC arrest warrant? Or, must the State be deemed to have waived its immunity? If so, is a Security Council (SC) referral sufficient to waive the immunity of a Head of State? Or, must the immunity to which the Head of State is entitled under international law be explicitly waived by the SC? The ICC says: In claris non fit interpretatio Three days before the Pretoria High Court ruling, the ICC Pre-Trial Chamber (PTC) held:
“it is unnecessary to further clarify that the Republic of South Africa is under the duty under the Rome Statute to immediately arrest Omar Al-Bashir and surrender him to the Court, as the existence of this duty is already clear and needs not be further reiterated. The Republic of South Africa is already aware of this statutory duty and a further reminder is unwarranted.” (§ 10)
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04 Sep

[Jennifer Trahan is an Associate Clinical Professor, The Center for Global Affairs, NYU-SPS, and Chair, International Criminal Court Committee, American Branch of the International Law Association.] On July 28, 2015, a domestic court in Libya announced death sentences against Saif al-Islam Gaddafi, the son of former Libyan leader Muammar Gaddafi, and Abdullah al Senussi, who served as intelligence chief. In total,...

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27 Aug

The inestimable Mark Kersten devotes his new column at Justice Hub (ignore the scary portrait) to an unusual issue: whether international criminals should be able to pursue higher education once they are released from prison. The column focuses on Thomas Lubanga, who recently stated his desire to complete a PhD at Kisengani University after he is released. Here is Mark's takeaway,...

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23 Aug

A few months ago, I blogged about the OTP's attempt to invoke Regulation 55 in Laurent Gbagbo's trial. As I noted in that post, the OTP asked the Trial Chamber (TC) to consider convicting Laurent Gbagbo of various crimes against humanity on the basis of command and superior responsibility, even though the Pre-Trial Chamber (PTC) specifically refused to confirm those modes of liability because doing so “would require...

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17 Aug

The journal has published what has to be the most ridiculous article in the history of IHL scholarship. And no, I'm not being hyperbolic. Written by someone named William C. Bradford, identified -- terrifyingly --  as an "Associate Professor of Law, National Security, and Strategy, National Defense University, Washington, D.C," it's entitled "Trahison des Professeurs: The Critical Law of Armed Conflict...

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