Enhancing the Legitimacy and Accountability of Prosecutorial Discretion at the International Criminal Court

2003 ◽  
Vol 97 (3) ◽  
pp. 510-552 ◽  
Author(s):  
Allison Marston Danner
Keyword(s):  
International Criminal Court ◽  
Rome Statute ◽  
International Criminal ◽  
Criminal Court ◽  
United Nations Security Council ◽  
Crimes Against Humanity ◽  
Single Individual ◽  
Prosecutorial Discretion ◽  
International Criminal Tribunals ◽  
Domestic Law

The rapid ratification of the Rome Statute of the International Criminal Court (ICC) and the orderly election of its judges and prosecutor belie the radical nature of the new institution. The Court has jurisdiction over genocide, aggression, crimes against humanity, and war crimes—crimes of the utmost seriousness often committed by governments themselves, or with their tacit approval. The ICC has the formal authority to adjudge the actions of high state officials as criminal and to send them to jail, no matter how lofty the accused’s position or undisputed the legality of those acts under domestic law. While the International Criminal Tribunals for the Former Yugoslavia (ICTY) and Rwanda (ICTR) also possess this authority, those institutions operate directly under the control of the United Nations Security Council and within narrow territorial limits. The ICC, by contrast, is largely independent of the Council and vests the power to investigate and prosecute the politically sensitive crimes within its broad territorial sweep in a single individual, its independent prosecutor.

scholarly journals Increasing Case Traffic: Expanding the International Criminal Court's Focus on Human Trafficking Cases

2020 ◽  
pp. 541
Author(s):  
Nadia Alhadi
Keyword(s):  
Human Trafficking ◽  
International Criminal Court ◽  
Rome Statute ◽  
International Criminal ◽  
Criminal Court ◽  
Crimes Against Humanity ◽  
International Level ◽  
International Criminal Tribunals ◽  
State Agents

Human trafficking falls within the jurisdictional competence of the International Criminal Court (“ICC”) as one of the article 7 crimes against humanity, whether committed in an atmosphere of conflict or in times of relative peace. Despite the ICC’s jurisdiction, as well as the globally pervasive nature of peacetime trafficking in particular, the ICC has not yet heard a human trafficking case. Accountability at the international level, however, is crucial, and the ICC’s oversight has the potential to fill gaps in the current anti-trafficking regime. This note explores this potential, and then examines whether the text of the Rome Statute or prior jurisprudence from international criminal tribunals creates barriers to prosecuting peacetime trafficking cases. It reviews three archetypal trafficking cases that the ICC could hear ((1) state agents trafficking civilians themselves; (2) state agents facilitating the trafficking of civilians, but not engaging in the trafficking themselves; and (3) state agents acquiescing to trafficking, particularly through generationally-embedded forms of slavery), and demonstrates how each fit within the relevant requirements of the Rome Statute.

Complying with Complementarity? The Cambodian Implementation of the Rome Statute of the International Criminal Court

2014 ◽  
Vol 5 (1) ◽  
pp. 123-142 ◽  
Author(s):  
Simon M. MEISENBERG
Keyword(s):  
International Criminal Court ◽  
Rome Statute ◽  
International Criminal ◽  
Criminal Code ◽  
Criminal Court ◽  
Crimes Against Humanity ◽  
International Crimes ◽  
Accountability Mechanism ◽  
Domestic Law ◽  
Principle Of Complementarity

Learning from past atrocities, Cambodia has taken positive steps to ensure that future international crimes may be adequately prosecuted through its ratification of the Statute of the International Criminal Court (ICC) in 2002. However, an effective accountability mechanism and deterrence for any future crimes requires more than simply joining the ICC. There is a growing consensus that Member States should adopt the ICC crimes of genocide, crimes against humanity, and war crimes as part of their domestic law, as the absence of legislation may result in an inability to prosecute under the principle of complementarity. Cambodia has followed this trend and enacted implementing legislation into its new 2009 Cambodian Criminal Code (CCC). Scrutinizing the enacted international crimes provisions in the CCC, it becomes apparent that some modifications and reform to the current Cambodian criminal statutes are necessary in order to comply with the complementarity principle in the ICC Statute.

scholarly journals Prosecutor v. Omar Hassan Ahmad Al-Bashir, Judgment in the Jordan Referral re Al-Bashir Appeal

2020 ◽  
Vol 114 (1) ◽  
pp. 103-109
Author(s):  
Angela Mudukuti
Keyword(s):  
International Criminal Court ◽  
Rome Statute ◽  
International Criminal ◽  
War Crimes ◽  
Criminal Court ◽  
Crimes Against Humanity ◽  
Arrest Warrant ◽  
Head Of State

In 2009, the International Criminal Court (ICC) stepped into uncharted waters as it issued its first arrest warrant for a sitting head of state, then President of Sudan Omar Al-Bashir. Following the UN Security Council's referral of the situation in the Darfur region of Sudan to the ICC, Al-Bashir was charged by the Court with war crimes and crimes against humanity, and in 2010, he was also charged with genocide. As a consequence, all of the states parties to the Rome Statute had a duty to arrest Al-Bashir. Several states have nonetheless failed to arrest him during country visits, allowing Al-Bashir to evade the ICC. This has given rise to a number of cases before the ICC Chambers, including this Appeals Chamber judgment regarding the Hashemite Kingdom of Jordan.

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

2014 ◽  
Vol 47 (3) ◽  
pp. 331-359
Author(s):  
Ariel Zemach
Keyword(s):  
National Security ◽  
Present Article ◽  
International Criminal Court ◽  
Rome Statute ◽  
International Criminal ◽  
Fair Trial ◽  
Criminal Court ◽  
The State ◽  
Prosecutorial Discretion ◽  
Selection Of

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.

‘Interests of justice’: Defining the scope of Prosecutorial discretion in Article 53(1)(c) and (2)(c) of the Rome Statute of the International Criminal Court

2017 ◽  
Vol 30 (3) ◽  
pp. 731-751 ◽  
Author(s):  
TALITA DE SOUZA DIAS
Keyword(s):  
International Criminal Court ◽  
Rome Statute ◽  
International Criminal ◽  
International Community ◽  
Criminal Court ◽  
Vienna Convention ◽  
Prosecutorial Discretion ◽  
New Developments ◽  
Policy Paper ◽  
Peace And Security

AbstractThe International Criminal Court (ICC) was established with the aim of prosecuting individuals for the gravest crimes of concern to the international community. Yet some provisions of its Statute (the Rome Statute) recognize the need for temporarily setting aside criminal investigations or prosecutions in favour of different considerations. Two of these provisions are Article 53(1)(c) and (2)(c) of the Statute. They allow the Prosecutor of the Court to use his or her discretion in deciding not to initiate an investigation or a prosecution in the ‘interests of justice’. Nonetheless, the ambiguity of this phrase, coupled with an absent definition, have given rise to a polarized debate about its meaning and the Prosecutor's ensuing margin of discretion: some consider matters of peace and security and alternative justice mechanisms as possible ‘interests of justice’, while others exclude them. Among those adopting the latter view is the ICC's Office of the Prosecutor (OTP), as can be inferred from a 2007 Policy Paper on the Interests of Justice and a 2013 Policy Paper on Preliminary Examinations, which continue to be upheld by the Office. Against this backdrop and amid new developments at the ICC which call into question the OTP's position, the purpose of this article is to develop a comprehensive interpretation of Article 53(1)(c) and (2)(c) of the Rome Statute, using all the interpretative tools provided by Articles 31 to 33 of the Vienna Convention on the Law of Treaties.

The International Criminal Court and the Warrant of Arrest for Sudan's President Al-Bashir: A Crucial Step Towards Challenging Impunity or a Political Decision?

2009 ◽  
Vol 78 (3) ◽  
pp. 397-431 ◽  
Author(s):  
Manisuli Ssenyonjo
Keyword(s):  
International Criminal Court ◽  
International Criminal ◽  
Charles Taylor ◽  
Trial Chamber ◽  
Criminal Court ◽  
United Nations Security Council ◽  
Crimes Against Humanity ◽  
Political Decision ◽  
Head Of State ◽  
International Court

AbstractOn 4 March 2009 the Pre-Trial Chamber I of the International Criminal Court (ICC) held that it was satisfied that there were reasonable grounds to believe that Omar Hassan Ahmad Al Bashir, the president of Sudan, is criminally responsible under Article 25(3)(a) of the Rome Statute as an indirect (co)perpetrator for war crimes and crimes against humanity (but not for genocide). The Chamber issued a warrant for the arrest of Al Bashir making him the third sitting head of state to be charged by an international court following Liberia's Charles Taylor and Yugoslavia's Slobodan Milošević. Since then the ICC has been accused of making a "political decision" and that it is "part of a new mechanism of neo-colonialism". This article examines the ICC's decision against the background of the situation in Darfur. The article concludes that although the ICC decision and warrant cannot be considered political and neo-colonial in nature, the decision and warrant can be criticised as selective. It calls on the ICC to broaden its scope of investigations and for the international community to affirm its support for the ICC and insist that Sudan and other states cooperate fully as required by the United Nations Security Council.

scholarly journals Where Security Meets Justice: Prosecuting Maritime Piracy in the International Criminal Court

2013 ◽  
Vol 4 (1) ◽  
pp. 81-102 ◽  
Author(s):  
Melanie O'BRIEN
Keyword(s):  
International Criminal Court ◽  
International Security ◽  
Rome Statute ◽  
International Criminal ◽  
International Crime ◽  
Well Being ◽  
Criminal Court ◽  
Crimes Against Humanity ◽  
Maritime Piracy ◽  
World Maritime

The International Criminal Court (ICC) was established to prosecute crimes that “threaten the peace, security and well-being of the world”. Maritime piracy has a long history as a threat to international security and was in fact the first international crime. Yet piracy was excluded from the Rome Statute. In the years since the drafting of the Rome Statute, piracy has increased dramatically to become more like the threat it was in the “Golden Age of Piracy”. Criminal accountability for piracy has been minimal, due to logistical and jurisdictional difficulties. This paper offers an analysis of the potential of the ICC for prosecuting pirates: why it should be considered as a potential forum for ensuring criminal accountability for piracy, how piracy fits within the ICC's jurisdiction, and whether or not piracy should be added to the Rome Statute as a stand-alone crime or under the rubric of crimes against humanity.

Defining “Crimes Against Humanity” at the Rome Conference

1999 ◽  
Vol 93 (1) ◽  
pp. 43-57 ◽  
Author(s):  
Darryl Robinson
Keyword(s):  
Security Council ◽  
International Criminal Court ◽  
Armed Conflict ◽  
Rome Statute ◽  
International Criminal ◽  
Criminal Court ◽  
Crimes Against Humanity ◽  
Multilateral Negotiations ◽  
Significant Difference ◽  
The Many

On July 17, 1998, the UN Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court (Rome Conference) adopted the Rome Statute of the International Criminal Court (ICC). One of the many significant provisions of the ICC statute is Article 7, which defines “crimes against humanity” for the purpose of the ICC. A significant difference between the definition in the ICC statute and the major precedents on crimes against humanity is that the former definition was not imposed by victors (as were those in the Nuremberg and Tokyo Charters) or by the Security Council (as were those in the Statutes of the Yugoslavia and Rwanda Tribunals). In contrast, Article 7 was developed through multilateral negotiations involving 160 states. For this reason, one could reasonably expect Article 7 to be more detailed than previous definitions, given the interest of participating states in knowing the precise contours of the corresponding obligations they would be undertaking. For the same reason, one might expect the definition to be more restrictive than previous definitions. Fortunately, although the definition in the ICC statute is more detailed than previous definitions, it generally seems to reflect most of the positive developments identified in recent authorities. For example, the definition does not require any nexus to armed conflict, does not require proof of a discriminatory motive, and recognizes the crime of apartheid and enforced disappearance as inhumane acts.

scholarly journals Is global poverty a crime against humanity?

2015 ◽  
Vol 7 (3) ◽  
pp. 539-571 ◽  
Author(s):  
Gwilym David Blunt
Keyword(s):  
International Law ◽  
International Criminal Court ◽  
Rome Statute ◽  
International Criminal ◽  
International System ◽  
Criminal Court ◽  
Crimes Against Humanity ◽  
Global Poverty ◽  
Definition Of

Pogge has repeatedly compared the causes of global poverty with historical crimes against humanity. This claim, however, has been treated as mere rhetoric. This article argues that there are good reasons to take it seriously. It does this by comparing Pogge’s thesis on the causes of global poverty with the baseline definition of crimes against humanity found in international law, especially the Rome Statute of the International Criminal Court. It argues that the causes of global poverty are comparable with the crimes of slavery and apartheid. This has important consequences for cosmopolitan thought, as it makes the need for practical solutions to global poverty more urgent and raises questions about the global poor’s right to resist the international system by violent means.

scholarly journals Kekerasan Seksual dalam Hukum Internasional

2019 ◽  
Vol 2 (6) ◽  
pp. 2199 ◽  
Author(s):  
Mella Fitriyatul Hilmi
Keyword(s):  
International Criminal Court ◽  
Rome Statute ◽  
International Criminal ◽  
Criminal Court ◽  
Crimes Against Humanity ◽  
Legal Capacity ◽  
Legal Personality ◽  
Serious Crime ◽  
International Rescue Committee

Kekerasan terhadap perempuan dan anak sebagai kaum rentan dapat terjadi dalam segala situasi yakni saat konflik berlangsung, proses melarikan diri, maupun di tenda pengungsian. The International Rescue Committee melakukan survei pada tahun 2015 yang menunjukkan bahwa 40% dari 190 perempuan dan anak perempuan di Dara’a dan Quneitra telah mengalami kekerasan seksual dari para personil Organisasi Internasional saat mengakses layanan bantuan kemanusiaan. Kekerasan seksual yang terjadi di Suriah adalah tindak kekerasan seksual dengan penyalahgunaan kekuasaan, atau penyalahgunaan kepercayaan, untuk tujuan kepuasan seksual, maupun untuk memperoleh keuntungan dalam bentuk uang, sosial, politik dan lain sebagainya. Berdasarkan Pasal 7 Ayat (1) Rome Statute of The International Criminal Court, kekerasan seksual adalah tindak kejahatan terhadap kemanusiaan (crimes against humanity) yang masuk dalam kategori The most Serious Crime, sehingga Hukum Internasional punya peran dalam hal ini. Penelitian ini merupakan penelitian yuridis normatif, dimana membahas terkait asas dan konsep Hukum Internasional mengenai kedudukan Organisasi Internasional selaku Subjek Hukum Internasional yang memiliki Legal Personality dan Legal Capacity. Oleh karena itu perlu diketahui pengaturan terkait dengan kekerasan seksual dalam hukum internasional.

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