Hartig: Making Aggression a Crime Under Domestic Law - On the Legislative Implementation of Article 8bis of the ICC Statute

Annegret Hartig has published Making Aggression a Crime Under Domestic Law - On the Legislative Implementation of Article 8bis of the ICC Statute (Asser Press 2023). Here's the abstract:

This book offers a comprehensive analysis of the legal questions that arise for the legislative branch when implementing the crime of aggression into domestic law. Despite being the “supreme international crime” that gave birth to international criminal law in Nuremberg, its ICC Statute definition has been incorporated into domestic law by fewer than 20 States. The crime of aggression was also omitted in the rich debate held among German scholars in the early 2000s regarding the legislative implementation of other ICC Statute crimes. The current inability of the International Criminal Court to respond to the Russian aggression towards Ukraine invites the continuation of these academic debates without neglecting the particularities of the crime of aggression.

The fundamental issues discussed in this volume include the obligation to criminalize aggression, the core wrong of the crime, the normative gaps under domestic law and the jurisdictional gaps under the ICC Statute. To facilitate the operationalization of domestic implementation, the book explores the technical options for incorporating the definition into domestic law, the geographical ambit of domestic jurisdiction—most notably universal jurisdiction—as well as legal challenges such as immunities.

Dias & Heffes: New Typologies of Non-International Armed Conflict? An Analysis of Article 8(2)(f) of the Rome Statute

Leandro Dias & Ezequiel Heffes have posted New Typologies of Non-International Armed Conflict? An Analysis of Article 8(2)(f) of the Rome Statute (Festschrift für Yoram Danzinger, forthcoming). Here's the abstract:

Currently, international law refers to two different conventional legal sources in order to deal with the existence of a non–international armed conflict: Common Article 3 to the Geneva Conventions of 1949, and Article 1 of the 1977 Additional Protocol II. Yet, with the adoption of the Rome Statute of the International Criminal Court (ICC Statute), it was also recognized that certain war crimes could be committed during ‘armed conflicts not of an international character’. Article 8(2)(c) and (e) grants the ICC with jurisdiction ratione materiae where serious violations of Common Article 3 and other serious violations of the laws and customs applicable in internal armed conflicts may have been committed. While the ICC Statute does not provide a more precise definition of the armed conflict in Article 8(2)(c), i.e. when serious violations of Common Article 3 may occur, it elucidates a definition in the case of serious violations of the laws and customs of war. The objective of this chapter is to clarify the threshold needed for the application of Article 8(2)(e) by focusing on the meaning of this provision. In doing so, it examines if indeed there are only as found in Common Article 3 and the 1977 Additional Protocol II, or if there is a third one included in the ICC Statute.

Call for Submissions: 20th Anniversary of the Entry into Force of the Rome Statute

Ius Inter Gentes – Revista de Derecho Internacional y Relaciones Internacionales has issued a call for submissions for a special issue on "20th Anniversary of the Entry into Force of the Rome Statute." The call is here.

Suhr: Rainbow Jurisdiction at the International Criminal Court: Protection of Sexual and Gender Minorities Under the Rome Statute

Valérie V. Suhr has published Rainbow Jurisdiction at the International Criminal Court: Protection of Sexual and Gender Minorities Under the Rome Statute (Asser Press 2022). Here's the abstract:

This timely book comprehensively examines whether the worst human rights violations directed specifically at sexual and gender minorities are punishable under international criminal law, as codified in the Rome Statute of the International Criminal Court. Drawing on general rules of interpretation, the development of human rights for sexual and gender minorities, and the social construction of gender, this monograph reveals that the worst crimes committed against persons because of their sexual orientation or gender identity can amount to crimes against humanity, particularly the crime of persecution under Article 7(1)(h). It also shows how legislators can be held individually criminally responsible for passing laws that criminalize consensual same-sex sexuality.

Tan: The Rome Statute as Evidence of Customary International Law

Yudan Tan (Soochow Univ.) has published The Rome Statute as Evidence of Customary International Law (Brill | Nijhoff 2021). Here's the abstract:

In The Rome Statute as Evidence of Customary International Law, Yudan Tan offers a detailed analysis of topical issues concerning the Rome Statute of the International Criminal Court as evidence of customary international law. The 1998 Rome Statute has generated a great deal of scholarly interest. Providing a novel way of analysing the treaty-custom interactions, Yudan Tan examines the customary status of essential parts of the Rome Statute. Based on a flexible two-element identification approach, focusing more on opinio juris, Yudan Tan convincingly argues that provisions of the Rome Statute were partly declaratory of custom when adopted in 1998, and that they are also partly declaratory of custom at the present time.

Conference: The 21st Anniversary of the Rome Statute: Perspectives Forgotten During the 20th Celebration Party

Tomorrow and Friday, November 14-15, 2019, iCourts will host a conference on "The 21st Anniversary of the Rome Statute: Perspectives Forgotten During the 20th Celebration Party." The program is here.

Weisbord: The Crime of Aggression: The Quest for Justice in an Age of Drones, Cyberattacks, Insurgents, and Autocrats

Noah Weisbord (Queen's Univ., Kingston - Law) has published The Crime of Aggression: The Quest for Justice in an Age of Drones, Cyberattacks, Insurgents, and Autocrats (Princeton Univ. Press 2019). Here's the abstract:

On July 17, 2018, starting an unjust war became a prosecutable international crime alongside genocide, crimes against humanity, and war crimes. Instead of collective state responsibility, our leaders are now personally subject to indictment for crimes of aggression, from invasions and preemptions to drone strikes and cyberattacks. The Crime of Aggression is Noah Weisbord’s riveting insider’s account of the high-stakes legal fight to enact this historic legislation and hold politicians accountable for the wars they start.

Weisbord, a key drafter of the law for the International Criminal Court, takes readers behind the scenes of one of the most consequential legal dramas in modern international diplomacy. Drawing on in-depth interviews and his own invaluable insights, he sheds critical light on the motivations of the prosecutors, diplomats, and military strategists who championed the fledgling prohibition on unjust war—and those who tried to sink it. He untangles the complex history behind the measure, tracing how the crime of aggression was born at the Nuremberg trials only to fall dormant during the Cold War, and he draws lessons from such pivotal events as the collapse of the League of Nations, the rise of the United Nations, September 11, and the war on terror.

The power to try leaders for unjust war holds untold promise for the international order, but also great risk. In this incisive and vitally important book, Weisbord explains how judges in such cases can balance the imperatives of justice and peace, and how the fair prosecution of aggression can humanize modern statecraft.

AJIL Unbound Symposium: The Rome Statute at Twenty

AJIL Unbound has posted a symposium on "The Rome Statute at Twenty." The symposium includes an introduction by Theodor Meron and Maggie Gardner and contributions by David Bosco, Silvia Fernández de Gurmendi, Adrian Fulford, Dapo Akande, Gabrielle Louise McIntyre, and Fausto Pocar.

Conference: Twenty Years of the ICC’s Rome Statute: Utopia – Reality – Crisis

On September 7-8, 2018, the Research Unit in "International Justice and Human Rights" at Edge Hill University will host a conference on "Twenty Years of the ICC’s Rome Statute: Utopia – Reality – Crisis." The program is here. Here's the idea:

After the end of the Cold War, the once utopian dream of an international criminal court gained momentum. In July 1998, civil society, scholars, and practitioners welcomed the establishment of a permanent international criminal tribunal with great enthusiasm.

The Court was greeted as a fundamental step in the evolution of the universal system of human rights protection, and in the fight against impunity for core crimes.

When the Court resumed its work and reality hit, it soon became apparent that International criminal justice is time-consuming, costly, and very complicated. It seems that after the initial euphoria, scholars became aware that the ICC could not achieve the expectations, which had been put on the Court. State parties became more and more impatient with a Court, which needed ten years to render its first judgment. Both intergovernmental and non-governmental organizations started to criticise the effectiveness of the first permanent international criminal tribunal.

Today the ICC faces accusations of asymmetrical implementation of international criminal justice with some African states withdrawing from the Rome Statute. In addition, it is difficult to impart the importance of international criminal justice when a humanitarian catastrophe is taking place in Syria, while the ICC is condemned to inaction. With recurring nationalism all over, it seems hardly imaginable that an international criminal court, with universalistic aspirations, would be created again today.

With the participation of ICC judges, international scholars and practitioners, the Conference aims to facilitate exchange of ideas on the role and limits of the ICC. This interdisciplinary Conference brings together international judges, prominent scholars, including criminologists, criminal and international lawyers, experts in the fields of international relations, and senior officers from International Criminal Tribunals in order to address the following key research questions: Can proceedings be made more effective thereby improving the Court’s reputation, and if so how? What are the Court’s real goals and functions? How do they relate to the selection of situations to investigate and cases to prosecute? And how to unfold the rather complicated triangle relationship between the Court, the Security Council and the state parties?

Call for Papers: The ICC Statute Reaches 20: Critical and Interdisciplinary Approaches

A call for papers has been issued for a conference on "The ICC Statute Reaches 20: Critical and Interdisciplinary Approaches/Le Statut de la CPI a 20 ans : Approches critiques et interdisciplinaires," to take place December 3-4, 2018, at the Université libre de Bruxelles. The call is here (English/Français).

Nouwen: The International Criminal Court

Sarah M.H. Nouwen (Univ. of Cambridge - Law) has posted The International Criminal Court (Oxford Bibliographies). Here's the introduction:

The International Criminal Court (ICC or “the Court”) is the world’s first permanent international court enforcing international criminal law. The ICC has attracted enormous scholarly attention from both lawyers and non-lawyers. Entire journals have been filled with commentaries on its legal framework—primarily the Rome Statute by which it was created—and the case-law developing that framework. But as the breadth of research on the ICC in non-legal disciplines demonstrates, the Court’s relevance goes far beyond the application and development of international criminal law; even without much judicial activity, it produces wide-ranging consequences in the world. Much material on the ICC is subsumed in literature on international criminal tribunals or international criminal law generally. This entry focuses on literature that is ICC-specific. Even though the Rome Statute’s provisions and its case law on substantive international criminal law are in some instances ICC-specific, this article leaves substantive criminal law (for instance genocide, modes of liability, or defenses) for Oxford Bibliographies entries on those topics.

Zemach: National Security Evidence: Enhancing Fairness in View of the Non-Disclosure Regime of the Rome Statute

Ariel Zemach (Ono Academic College - Law) has published National Security Evidence: Enhancing Fairness in View of the Non-Disclosure Regime of the Rome Statute (Israel Law Review, Vol. 47, no. 3, pp. 331-359, November 2014). Here's the abstract:

The Rome Statute of the International Criminal Court completely divests the Court of the power to compel a state to disclose evidence in its possession if the state opposes such disclosure on grounds of national security. If a state refuses to disclose information essential to the adjudication of a case on national security grounds, the ICC may settle fair trial concerns either by drawing factual inferences favourable to the defendant or by staying the proceedings. I argue, however, that in practice such judicial powers do not provide a sufficient guarantee of a fair trial. I propose to allay fair trial concerns arising from the refusal of states to allow the ICC access to evidence in their possession by introducing a reform in the exercise of the ICC's prosecutorial discretion. According to my proposal, the requirement of a fair trial, which entails the disclosure of material essential for the defence, would be incorporated into the criteria that guide the ICC Prosecutor in the selection of cases for prosecution. Although the present article focuses on the issue of national security evidence, the reach of the proposed reform extends to all cases of state refusal to allow the ICC access to evidence, regardless of the grounds for refusal.

Grover: Interpreting Crimes in the Rome Statute of the International Criminal Court

Leena Grover has published Interpreting Crimes in the Rome Statute of the International Criminal Court (Cambridge Univ. Press 2014). Here's the abstract:

The Rome Statute of the International Criminal Court defines more than ninety crimes that fall within the Court's jurisdiction: genocide, other crimes against humanity, war crimes and aggression. How these crimes are interpreted contributes to findings of individual criminal liability, and moreover affects the perceived legitimacy of the Court. And yet, to date, there is no agreed-upon approach to interpreting these definitions. This book offers practitioners and scholars a guiding principle, arguments and aids necessary for the interpretation of international crimes. Leena Grover surveys the jurisprudence of the International Criminal Tribunals for the former Yugoslavia and Rwanda before presenting a model of interpretive reasoning that integrates the guidance within the Rome Statute into articles 31-33 of the Vienna Convention on the Law of Treaties (1969).

Ambos: The ICC and Common Purpose: What Contribution is Required Under Article 25(3)(d)?

Kai Ambos (Georg August Universität Göttingen - Law) has posted The ICC and Common Purpose: What Contribution is Required Under Article 25(3)(d)? (in The Law and Practice of the ICC: A Critical Account of Challenges and Achievements, Carsten Stahn ed., forthcoming). Here's the abstract:

Article 25(3)(d) has not yet been the object of much academic or jurisprudential debate, but the few authors who have attempted to make sense of the provision have had serious problems in doing so and have therefore fiercely criticized it. This paper will not deal with all the possible aspects and problems but will rather focus, after some general preliminary remarks, on the quality or nature of the contribution required by Article 25(3)(d) of the Rome Statute of the International Criminal Court (ICC). Some other issues of the provision are only dealt with insofar as they relate to the contribution issue.

Amann: Children and the First Verdict of the International Criminal Court

Diane Marie Amann (Univ. of Georgia - Law) has posted Children and the First Verdict of the International Criminal Court (Washington University Global Studies Law Review, Vol. 12, p. 411, 2013). Here's the abstract:

Child soldiers were a central concern in the first decade of the International Criminal Court; indeed, the court’s first trial, Prosecutor v. Lubanga, dealt exclusively with the war crimes of conscripting, enlisting, and using child soldiers. This article compares the attention that the court has paid to children – an attention that serves the express terms of the ICC Statute – with the relative inattention in post-World War II international instruments such as the statutes of the Nuremberg and Tokyo tribunals. The article then analyzes the Lubanga conviction, sentence, and reparations rulings. It recommends that the ICC focus attention on all the ways that armed conflict affects children, as a means to advance goals of accountability, redress, and prevention.

Benedetti, Bonneau & Washburn: Negotiating the International Criminal Court: New York to Rome, 1994-1998

Fanny Benedetti, Karine Bonneau & John Washburn have published Negotiating the International Criminal Court: New York to Rome, 1994-1998 (Martinus Nijhoff Publishers 2013). Here's the abstract:

This is the story and analysis of the unforeseen and astonishing success of negotiations by many countries to create a permanent international court to try atrocities. In 1998, 120 countries astounded observers worldwide and themselves by adopting the Rome Statute for an International Criminal Court. From this event began important and unprecedented changes in international relations and law.

This book is for those who want to know and understand the reasons and the story behind these historic negotiations or for those who may wonder how apparently conventional United Nations negotiations became so unusual and successful. This book is both for those who seek detailed legislative history, scholars or practitioners in international law and relations and those simply curious about how the Court came about.

Nouwen: Complementarity in the Line of Fire: The Catalysing Effect of the International Criminal Court in Uganda and Sudan

Sarah M.H. Nouwen (Univ. of Cambridge - Law) has published Complementarity in the Line of Fire: The Catalysing Effect of the International Criminal Court in Uganda and Sudan (Cambridge Univ. Press 2013). Here's the abstract:

Of the many expectations attending the creation of the first permanent International Criminal Court, the greatest has been that the principle of complementarity would catalyse national investigations and prosecutions of conflict-related crimes and lead to the reform of domestic justice systems. Sarah Nouwen explores whether complementarity has had such an effect in two states subject to ICC intervention: Uganda and Sudan. Drawing on extensive empirical research and combining law, legal anthropology and political economy, she unveils several effects and outlines the catalysts for them. However, she also reveals that one widely anticipated effect – an increase in domestic proceedings for conflict-related crimes – has barely occurred. This finding leads to the unravelling of paradoxes that go right to the heart of the functioning of an idealistic Court in a world of real constraints.

Stahn: Taking Complementarity Seriously: On the Sense and Sensibility of ‘Classical,’ ‘Positive’ and ‘Negative’ Complementarity

Carsten Stahn (Leiden Univ. - Law) has posted Taking Complementarity Seriously: On the Sense and Sensibility of ‘Classical,’ ‘Positive’ and ‘Negative’ Complementarity. Here's the abstract:

Complementarity has many faces. Today, it is traditionally theorised on the basis of a distinction between ‘classical’ and ‘positive complementarity’. This chapter revisits this categorisation. It argues that both conceptions are inherent in the framework of the Statute, but underdeveloped in their articulation and meaning due to the framing of Article 17. Both concepts are often misunderstood or used, in order to justify specific policy choices. This chapter argues that forum allocation is governed by three cardinal principles which underpin the functioning of the Rome system of justice: (i) effectivenes, (ii) impartiality and (iii) fairness. It defines means and methods of ‘classical’ complementarity, including its use as a carrot and stick. It challenges the assumption that ‘positive’ complementarity is merely a policy principle or a tool to strengthen domestic jurisdiction. It argues that the Court is empowered to use techniques to overcome ‘inability’ and unwillingness’ as part of its mandate. It claims that the move from a passive to a managerial understanding of complementarity requires greater attention to the foundational goals of the Court, i.e. judicial independence, effective justice, fairness and sustainability.

Werle & Burghardt: Establishing Degrees of Responsibility: Modes of Participation in Article 25 of the ICC Statute

Gerhard Werle (Humboldt Univ. of Berlin - Law) & Boris Burghardt (Humboldt Univ. of Berlin - Law) have posted Establishing Degrees of Responsibility: Modes of Participation in Article 25 of the ICC Statute (in Pluralism in International Criminal Law, E. van Sliedregt & S. Vasiliev eds., forthcoming). Here's the abstract:

As the International Criminal Court is handing down its first trial chamber judgments, the debate on modes of participation continues. It appears that there is growing skepticism shown towards the control-of-the-crime-theory that has guided the Court’s approach on Article 25 of the ICC Statute so far. This article argues that before an assessment of the merits and demerits of the control-of-the-crime-theory can be made, one needs to determine the role of modes of participation in general. In this regard, it will be shown that Article 25 establishes a four level hierarchy of individual criminal responsibility where modes of participation are relevant for sentencing purposes. Only on the basis of such a systematic understanding can one reach a consistent definition of the different modes of participation and Article 25 as a whole. Ultimately, instead of starting anew, the ICC should continue following the path it has chosen, albeit with refinements.

Fernandez & Pacreau: Statut de Rome de la Cour pénale internationale : Commentaire article par article

Julian Fernandez (Université Lille Nord de France (Lille 2) - Law) & Xavier Pacreau (Université Panthéon-Assas (Paris II) - Centre Thucydide) have published Statut de Rome de la Cour pénale internationale : Commentaire article par article (Pedone 2012). Here's the abstract:

Le Statut de Rome a été signé le 17 juillet 1998 et est entré en vigueur le 1er juillet 2002. Dix ans après le début de son existence et deux années après la Conférence de révision de Kampala, la Cour a déjà fait oeuvre d’une intense activité judiciaire, et cela même si elle parvient seulement à rendre ses premiers jugements. Qu’elle soit saisie par les Etats, par le Conseil de sécurité ou par le Procureur agissant proprio motu, la première juridiction pénale internationale permanente s’impose déjà comme un acteur incontournable des relations internationales dont le Statut constitutif est opposable à plus de 120 Etats.

Ce commentaire collectif du Statut de Rome, article par article, complété par plusieurs contributions préalables transversales qui abordent des aspects ne pouvant être traités de façon exhaustive dans le corps de l’ouvrage, doit permettre de combler une lacune en langue française – l’absence d’un ouvrage de référence sur la Cour pénale internationale. Celui-ci se veut autant au service de la recherche que de la pratique. A cette fin, il rassemble les contributions de nombreux universitaires, de membres des différents organes de la Cour, de conseils et de membres d’autres organisations internationales dont l’activité est liée à l’action de la Cour.