International criminal law and the role of non-state actors in preserving open source evidence

2018 ◽  
Vol 7 (2) ◽  
pp. 268-283
Author(s):  
Róisín A Costello
Keyword(s):  
Open Source ◽  
Criminal Law ◽  
International Criminal Court ◽  
International Criminal ◽  
National Level ◽  
Criminal Court ◽  
International Criminal Law ◽  
State Actor ◽  
State Actors

This article analyses the current duties of non-state actors, specifically digital platform providers, to preserve and report content useful in the later prosecution of international criminal offences. The article illustrates the shortcomings of current legal mechanisms both at an international and national level by which such duties to preserve and/or report are imposed and proposes solutions which countenance a more developed role for the International Criminal Court in collecting and preserving open source evidence independent of non-state actor cooperation.

Is the ICC Focusing Too Much on Non-State Actors?

2018 ◽  
Author(s):  
Frédéric Mégret
Keyword(s):  
Criminal Law ◽  
International Criminal Court ◽  
International Criminal ◽  
Criminal Court ◽  
International Criminal Law ◽  
Armed Groups ◽  
International Crimes ◽  
Real Issue ◽  
State Actors ◽  
Law And Justice

One of the most significant contributions of Bill Schabas to the study of international criminal law is his critique of the tendency of contemporary international criminal justice to focus on individuals associated with non-state actors as opposed to states. This chapter seeks to first evaluate it as an empirical claim to assess the degree to which the International Criminal Court (ICC) has, if at all, disproportionately focused on non-state actors, beyond the well-known case of state self-referrals. It then addresses the normative case against such an evolution. The real issue is jurisdictional and a matter of prosecutorial policy rather than the substantive one of whether non-state groups can commit international crimes. The conclusion envisages what it is that is common between states and certain armed groups that ought to give a particular character of gravity to their acts and recommend them for special attention from international criminal law and justice.

scholarly journals A Perspective on the Rome Statute’s Defence of Duress: The Role of Imminence

2018 ◽  
Vol 18 (1) ◽  
pp. 154-177 ◽  
Author(s):  
Clare Frances Moran
Keyword(s):  
Present State ◽  
Criminal Law ◽  
International Criminal Court ◽  
Rome Statute ◽  
International Criminal ◽  
Criminal Court ◽  
International Criminal Law ◽  
Definition Of ◽  
The Individual

The concept of duress encapsulated in Article 31(1)(d) of the Rome Statute of the International Criminal Court is a novel inclusion in a statute created to allow prosecution of serious crimes against the person in international criminal law. Despite being the topic of much debate, the present state of the discourse remains at a fairly superficial level: existing studies focus on a general analysis of the defence and its conditions. This has included the way in which the defences merges necessity and duress, with only a few authors examining the conditions of ‘proportionality’ and ‘necessity’. This study looks at an underexplored part of the defence: the condition of imminence. The purpose of this work is to explore the idea of imminence and to review whether a clearer definition of duress could have been used, replacing the idea of imminence with the concept of the individual selecting the lesser evil.

scholarly journals Office of the Prosecutor: Policy Paper on Case Selection and Prioritisation (Int'l Crim. Ct.)

2018 ◽  
Vol 57 (6) ◽  
pp. 1131-1145 ◽  
Author(s):  
Kai Ambos
Keyword(s):  
Criminal Law ◽  
International Criminal Court ◽  
International Criminal ◽  
National Level ◽  
Criminal Court ◽  
International Criminal Law ◽  
International Crimes ◽  
Policy Paper ◽  
Case Selection ◽  
Main Challenge

Given the high number of international crimes, it is practically impossible to prosecute all potential perpetrators at the international level. Impunity gaps at the national level aggravate this situation since they practically turn the International Criminal Court (ICC) into the lone or at least most visible enforcer of international criminal law (ICL). Thus, the Court suffers from a situation and case overload that manifests itself at the level of preliminary examinations conducted by its Office of the Prosecutor (OTP) which, in turn, suffers from “overall basic size and capacity constraints.” This situation leaves the Court/the OTP no other choice than to deliver mere distributive (instead of retributive) criminal justice, where the main challenge is not so much the fair or just delivery of sanctions to individual defendants, but the fair distribution of justice to a selected number of suspects/perpetrators. Against this background the rational and transparent selection and prioritization of situations and cases turns out to be of utmost importance for the success and legitimacy of the Court.

Characterising the System of the International Criminal Court: An Exploration of the Role of the Court Through the Elements of Crimes and the Crime of Genocide

2006 ◽  
Vol 6 (2) ◽  
pp. 257-274 ◽  
Author(s):  
Leanne McKay
Keyword(s):  
Criminal Law ◽  
International Criminal Court ◽  
Rome Statute ◽  
International Criminal ◽  
Criminal Court ◽  
International Criminal Law ◽  
Court System ◽  
Global Harmonisation

AbstractThis paper examines the nature of the legislative system of the International Criminal Court, as established by the Rome Statute and the Elements of Crimes. It asks, to what extent can this system be seen as self-contained and self-sustaining or is its role better described as one of global harmonisation of existing and developing international criminal law? By examining the Elements of Crimes and their operation through the case study of the crime of genocide, the paper identifies some of the contradictions and challenges facing both the judges and parties who are obliged to work within this system, and also national jurisdictions that simultaneously seek to maintain their sovereignty and be included within the International Criminal Court system.

The Contestation of Value-Based Norms: Confirmation or Erosion of International Law?

2019 ◽  
pp. 311-334
Author(s):  
Tiyanjana Maluwa
Keyword(s):  
International Law ◽  
Security Council ◽  
Criminal Law ◽  
International Criminal Court ◽  
International Criminal ◽  
Criminal Court ◽  
International Criminal Law ◽  
The Right ◽  
First Time ◽  
Normative Powers

The chapter discusses the concepts of shared values and value-based norms. It examines two areas of international law that provide illustrative examples of contestation of value-based norms: the fight against impunity under international criminal law and the debates about the responsibility to protect. It argues that the African Union’s (AU) difference of view with the International Criminal Court (ICC) over the indictment of Omar Al-Bashir is not a rejection of the non-impunity norm, but of the context and sequencing of its application. As regards the right of intervention codified in the Constitutive Act of the AU, Africans states responded to the failure of the Security Council to invoke its existing normative powers in the Rwanda situation by establishing a treaty-based norm of intervention, the first time that a regional international instrument had ever done so. Thus, in both cases one cannot speak of a decline of international law.

scholarly journals The Legacy of the ICTY and ICTR in China

AJIL Unbound ◽  
2016 ◽  
Vol 110 ◽  
pp. 245-250
Author(s):  
Bing Bing Jia
Keyword(s):  
Criminal Law ◽  
International Criminal Court ◽  
Rome Statute ◽  
Ad Hoc ◽  
International Criminal ◽  
International Criminal Tribunal ◽  
Criminal Court ◽  
Decision Makers ◽  
International Criminal Law ◽  
International Tribunal

Legacy is a matter that may become topical when its creator finally stops producing. Normally, the silent years would be many before the thought of legacy enters into open, formal discourse among lawyers and decision-makers. This comment treats the meaning of the word as relative to the circumstances in which it is invoked. The more closely it is used in relation to the present, the more distant it drifts from its literal meaning, to the extent that it denotes what the word “impact” signifies. This essay questions whether the word “legacy” is apt in describing the footprint of the work of the two ad hoctribunals in China, where its influence has, as a matter of fact, been waning ever since the adoption of the Rome Statute of the International Criminal Court in 1998 (“Rome Statute” ). The Chinese example suggests that the work of the tribunals is (at least so far) no more significant to international criminal law than the illustrious Nuremberg and Tokyo Trials of the 1940s. The most major impact (a more apposite term than legacy) of the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Tribunal for Rwanda (ICTR) for China may be that China’s policy with regard to the tribunals, manifested mostly in the United Nations, has determined its approach to the International Criminal Court (“ICC” ). For that, the work of the tribunals could be considered as having left China something in the nature of an indirect legacy.

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