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30 Sep Distant Justice Symposium: An Introduction by Phil Clark
of its staff. Such was the narrative of crisis around the Court that, in April 2019 – soon after the ICC judges rejected the Prosecution’s request to open investigations in Afghanistan due to a lack of state cooperation – four former presidents of the ICC Assembly of States Parties (ASP) called for an independent expert assessment of the entire functioning of the Court. While much of the evidence I present in Distant Justice now resonates with the zeitgeist around the ICC – having gone against the grain for most of...
25 Feb More Than Rhetoric? International Criminal Justice, Crime Semantics and the Role of the ICC in the Ukraine Conflict
...claims of self-defence and protection. It carries associations with WWI (‘supreme offence against international morality and the sanctity of treaties’), WWII, Nuremberg and Tokyo. Both notions refer to moral extremes. They are loaded with historical baggage, related to their precedents. The Kampala amendments to the ICC Statute gave a contemporary framing to the crime of aggression by shifting the focus from the notion of war of aggression to the wider concept of acts of aggression. However, the semantics used show the limitations of criminal labels: Both notions polarize and easily...24 Jan A Comment on Kevin Jon Heller’s Piece by Darryl Robinson
Article 17 of the ICC Statute requires the Court to determine whether “the case” is being investigated or prosecuted (Article 17(1)(a)) or has been investigated (Article 17(1)(b)). To determine whether a national proceeding concerns the same “case”, ICC jurisprudence asks whether it concerns the same person and “substantially the same conduct”. Kevin, like other scholars in recent literature, argues that the same-conduct test is too stringent. The concern is that same-conduct test “privileges the ICC instead of states” because it requires national authorities to investigate the specific conduct that the...
09 Oct Trump vs. International Law: The Trump Administration and International Criminal Justice
...Koh’s words: “we have applied a pragmatic, case-by-case approach toward ICC issues.” That said, the ICC Office of the Prosecutor’s preliminary examination in Afghanistan was forever on the horizon, threatening to derail this evolution. Bolton’s recent speech to the Federalist Society has no doubt put an end to this practice of case-by-case constructive cooperation, even when legal accountability is squarely within U.S. national interests. There are many reasons that the United States should not cut ties completely with the ICC. In addition to being in a better position to protect...06 Mar More Thoughts on the ICC and Darfur
A couple of days ago, I criticized Julian’s claim that the ICC’s involvement in Darfur makes the situation there worse. I still believe that, on balance, the ICC’s involvement is positive. Nevertheless, articles like this give me pause: Aid workers fear war crimes accusations made by the International Criminal Court against two Sudanese suspects could hamper their work in Darfur and raise an added hurdle to a proposed deployment of United Nations troops. Khartoum has a long history of retaliating against international measures. These have often strengthened the hand of...
17 Apr ICC Prosecutor Symposium: “Mind the Gap”–Insights from Asia
...to the types of crimes delineated in the Rome Statute. Which brings one to the broader purpose of the Rome Statute – to establish a court, yes, but also surely to widen the prohibition of the crimes as described in the statute. So while the ICC is focused on ‘positive complementarity’, the wider context – the ability to prosecute international crimes in more national jurisdictions – is one that should make the ICC Prosecutor’s job more focused. Also, while positive complementarity is usually vis-à-vis state parties (or referrals), it is...03 May ATLAS Writes an Open Letter to the Committee Electing the ICC Prosecutor and the ASP
staggering: A 2017 ICC Staff Union report on ‘ICC Staff Feedback on Harassment, Bullying, Discrimination and Abuse of Power’, provided the result of a survey taken by 128 ICC staff members in which 48.4% of respondents said that they had been victims of one of the listed behaviours (discrimination, (sexual) harassment, abuse of authority, or misconduct). Equally concerning was the fact that only 18.7% of those who had stated having been victims of these behaviours said that they reported them. Reasons given for deciding not to report included: lack of...
24 Mar The Potential of Gender Persecution in ICC Case Abd-Al-Rahman: A Twofold Opportunity to Interpret its Customary Status and Intersectional Discrimination
[Ana Martín is a PhD Researcher at the Transitional Justice Institute , Ulster University, investigating the topic intersectionality and sexual and gender-based crimes.] The Appeals Chamber (AC) Confirmation of Jurisdiction Decision in Abd-Al-Rahman (1 November 2021) sets a substantive precedent regarding the challenging harmonization of two articles of the International Criminal Court (ICC, Court) Rome Statute (Statute): article 22 (1) establishing the principle of legality or non-retroactivity (nullum crimen sine lege) in international criminal law (ICL) and article 21(3) requiring interpreting and applying the law in consistency with international human...04 Jul The Africa Union and the ICC
I don’t know quite what to make of this story from the AP of July 3, 2009: African leaders approve anti-ICC move By ALFRED de MONTESQUIOU – 9 hours ago SIRTE, Libya (AP) — African leaders have approved a contentious decision to denounce the International Criminal Court and refuse to extradite Sudan’s President Omar al-Bashir. The final decision by the African Union heads of state summit says AU members “shall not cooperate … in the arrest and transfer of the President of Sudan to the ICC.” The story adds that...
01 Oct Prosecuting Putin: Creation of a Special Tribunal for Russian Aggression
...territories of States not parties to the ICC’s Rome Statute be wholly excluded from the ICC’s jurisdiction on aggression. In 2017, France and the UK crafted an “opt-in” clause, which allowed States to elect to submit to the ICC’s jurisdiction over the crime of aggression by ratifying the Kampala amendments, whereas before that, the ICC’s jurisdiction automatically applied. Because Russia is not a party to the Rome Statute, absent a referral from the UN Security Council (which is not an option for Ukraine due to Russia’s veto power), the ICC...