South Africa's Implementation of the ICC Statute: An African Example

In this article, the author analyses the most important provisionsof South Africa's Implementation of the Rome Statute of theInternational Criminal Court Act, 2002. In particular, attentionis given to the complex complementary scheme that is establishedunder the Act, including the jurisdictional bases under theAct for South African prosecution of war crimes, crimes againsthumanity and genocide; the substantive law that applies to anyprosecution of an ICC crime undertaken on South African soilpursuant to the Act; and the procedure to be followed in respectof such a prosecution. Other topics examined include the problemof immunities and amnesties in the South African context, andthe mechanisms devised by the Act to ensure South Africa's cooperationwith the ICC in respect of any investigation or prosecutionundertaken by the Court. The author concludes that the implementationAct is likely to serve as a meaningful example for other AfricanStates Parties in their efforts to domestically give effectto their obligations under the Rome Statute.     

Military Courts and Prosecution of Offences by National Defense Forces in the Dawn of the Complementarity Regime: The Case of Uganda

With the coming into force of the Rome Statute of the International Criminal Court (ICC Statute) and its complementarity regime, much emphasis has been placed on the role of national courts in prosecuting international crimes. Some states have demonstrated their commitment to this regime by; inter alia, ratifying the ICC Statute, enacting national legislation to implement the ICC Statute and establishing national judicial forums for prosecution of international crimes. Uganda is a prime example of states rising up to this challenge. Uganda ratified the ICC Statute in 2002. In 2008, it established the International Crimes Division (ICD) to prosecute international crimes and in 2010, it enacted the International Criminal Court Act to implement the ICC Statute. Even before these reforms, Uganda’s military courts had always relied on service offences to prosecute members of the national defence force. Worthy to note, members of the Uganda Peoples’ Defence Forces (UPDF) have been implicated in a number of atrocities, some of which can be categorised as international crimes. However, military courts continue to prosecute UPDF soldiers for these atrocities on the basis of service offences. The situation current in Uganda highlights a number of legal issues relating to: first, the adequacy of service offences to advance accountability for the international crimes allegedly committed by UPDF soldiers; secondly, the jurisdiction of military courts over international crimes; and thirdly, the effect of concurrent jurisdiction by the ICD and military courts on the rule against double jeopardy.     

国家与国际刑事法院的国际合作与司法协助义务述评

国际刑事法院是否成功的关键取决于《罗马规约》的缔约国和国际社会与之真诚的国际合作与司法协助。反之 ,国家也应根据国际法的基本原则善意履行其自愿承担的义务 ,向国际刑事法院提供国际合作与司法协助。本文通过阐述《罗马规约》有关国家与国际刑事法院的国际合作与司法协助方面的实体性和程序性规定 ,说明国家在国际刑事法院调查、起诉和惩治国际社会关注的最严重的国际犯罪中的作用和义务     

Realising the Potential of the International Criminal Court: The African Experience

To date efforts of the International Criminal Court (ICC) toeradicate impunity for international crimes have been focussedin the African region. With arrest warrants now issued in relationto the situations in the Democratic Republic of Congo and Ugandaand the surrender of one individual to the Court, this articleprovides a timely examination of the efforts of African Statesto adopt legislation to provide for cooperation with the ICCand the prosecution of ICC crimes in national courts. The articledemonstrates that despite their willingness to make use of theICC system for prosecutions, African States, reflecting thegeneral trend in other regions, have made very little progressin implementing the Rome Statute. The article also examineshow the ICC has conducted its investigations in light of thelack of such implementing legislation.     

Great Expectations: The Implementation of the Rome Statute in Italy

This article first explores whether Italy is under an obligationto implement the Rome Statute that it ratified in 1999. It thenidentifies the general sets of inconsistencies between Italianlegislation and the Rome Statute and analyses whether and towhat extent the former needs to be amended or integrated inorder to implement the substantive provisions of the latter,in particular in relation to the definition of crimes, generalprinciples of criminal responsibility, defences and other barsto prosecution. Finally, the exercise of jurisdiction by Italiancourts over crimes in the Rome Statute is discussed in the lightof the principle of complementarity on which the jurisdictionof the International Criminal Court is based.         Mere dreams,mere dreams!         W.B. Yeats,Meditations in Time of Civil War, I (1928)     

Any Other Contribution? Ascribing Liability for Cover-Ups of International Crimes

As the International Criminal Court (the Court or ICC) continues to develop the parameters of the various modes of liability set out in Article 25(3) of the Rome Statute, recent developments raise questions as to whether the Court can consider participation in cover-ups or concealment of crimes as giving rise to individual criminal responsibility. It is only recently that international tribunals, and notably the International Criminal Tribunal for the Former Yugoslavia (ICTY), have turned to consider how international criminal law approaches responsibility for cover-ups or concealment of crimes. In reviewing how and why the ICTY has addressed individual criminal liability for engaging in cover-ups, and in light of the ICC’s Mbarushimana decision, the aim of this paper is to suggest how the ICC might consider such issues in future cases. Having demonstrated the necessity of international criminal law accounting for cover-ups, the paper will discuss how the jurisprudence, in toto, excludes the possibility of holding to account individuals who contribute to the cover up of international crimes, by whatever means, or however grave, unless they were acting on the premise of a prior agreement with the principals. By way of conclusion the paper will suggest that an expansive interpretation of Article 25(3)(d) of the Rome Statute may provide a means of addressing this gap.     

International Crimes and ICC Cooperation in England and Wales

The United Kingdom, as a party to the ICC Statute, has broughtin a series of similar pieces of legislation in order to fulfilits obligations under the Statute, and to ensure that crimessubject to the jurisdiction of the ICC are also crimes in domesticlaw. This article concentrates on the International CriminalCourt Act 2001, which applies in England and Wales, to appraisewhether it adequately provides for assistance to the ICC, andwhether the crimes subject to the ICC's jurisdiction are adequatelyincorporated into domestic law. The article also mentions thepossible role of the common law of England and Wales in relationto international crimes. It concludes that, for the most part,the Act reflects a sensible approach to issues involved in assistingthe ICC and provides a workable basis for the prosecution ofinternational crimes in that jurisdiction.     

China's Attitude Towards the ICC

Unlike the USA, China has few overseas military commitments,and therefore is not concerned that its troops may one day comeunder International Criminal Court (ICC) jurisdiction. Moreover,China is not in a position to pressurize other countries tosign bilateral agreements as the USA has done. Whether or notChina eventually accedes to the Rome Statute, it cannot avoidthe jurisdiction of the ICC in other parts of the world. Thereare five main reasons for China's opposition to the ICC. First,its jurisdiction is not based on the principle of voluntaryacceptance; furthermore, complementarity gives the ICC the powerto judge whether a state is able or willing to conduct propertrials of its own nationals. Secondly, also war crimes in internalarmed conflicts fall under the jurisdiction of the ICC. Thirdly,crimes against humanity are prohibited in time of peace as well.Fourthly, the inclusion of the crime of aggression within thejurisdiction of the ICC weakens the power of the UN SecurityCouncil. Fifthly, the proprio motu power of the Prosecutor maymake the ICC open to political influence. The authors try toshow how all these objections can be legally met and set fortha series of considerations that would make China's participationin the Court a welcome development in China's national and internationalinterests. They finally argue that the Chinese government shouldtake an open attitude, taking into consideration the Court'sactual performance, and should not, therefore, exclude the possibilityof acceding at an appropriate time to the ICC Statute.     

National Implementation of ICC Crimes: Impact on National Jurisdictions and the ICC

The national implementation of the International Criminal Court(ICC) Statute has proven to be more difficult than initiallyanticipated. Most States Parties have either not incorporatedthe ICC crimes into their domestic laws, or they have done sousing different forms of wording. This article examines theimplementing legislation of several states to demonstrate howinadequate implementation of the ICC crimes might prevent statesfrom exercising their primary jurisdiction in criminal proceedings.In turn, this might affect the admissibility of a case beforethe ICC. To this end, this article also explores whether flawedimplementation of the ICC crimes amounts to unwillingness orinability of the state to genuinely prosecute. This articleargues that implementation of the Statute is of paramount importanceto the future of the ICC.     

India and the ICC

The Statute of the International Criminal Court (ICC Statute)would have been more acceptable to India if it had containedan opt-in provision whereby a state could accept the jurisdictionof the ICC by declaration (possibly for a specified period),and this might be limited to particular conduct or to conductcommitted during a particular period of time. The lack of sucha provision, and the inherent jurisdiction which replaced it,are perceived as representing a violation of the consent ofstates, and thus a threat to sovereignty. India's resistanceto accepting the inherent jurisdiction of the ICC is explained,in part, by anxieties about how investigation, prosecution andcriminal proceedings in the Indian system may be judged by aninternational court. The inclusion of ‘armed conflictnot of an international character’ in defining ‘warcrimes’ in Article 8 ICCSt. constitutes another reasonfor India's concern (that the conflicts that persist in Kashmir,the North-East and as was experienced in Punjab, as well asthe violence of more recent vintage in Gujarat, could be referredto the ICC). Further elements giving rise to India's misgivingsare the fear that the Court might be used with political motives,the power conferred on the Prosecutor to initiate investigationsproprio motu and the role allotted to the Security Council.     

国际刑事法院的司法能动主义:实践、反思及限制

国际刑事法院对《罗马规约》近年来的解释中呈现出司法能动主义的趋势,即背离约文的字面含义和立法者的原意,扩张国际刑事法院管辖下犯罪的定义和可受理案件的范围。国际刑法的混合性质、先前国际刑事法庭的司法能动主义政策以及《罗马规约》适用法条款和解释规则的不确定性都是导致国际刑事法院司法能动主义的原因。作为非经授权的司法立法行为,国际刑事法院的司法能动主义不但违背国家主权原则和罪刑法定主义,而且损害了国际社会通过其追究国际犯罪的信心。构建对其司法能动主义进行规制的关键在于厘清和协调《维也纳条约法公约》中的解释规则、罪刑法定原则下的严格解释以及存疑有利于被告解释方法三者在《罗马规约》解释中的适用范围及适用关系。     

从苏丹情势分析国际刑事法院管辖权的补充性原则

联合国安理会向国际刑事法院的检察官提交的苏丹达尔富尔地区发生的情势,引发了非缔约国对国际刑事法院管辖权补充性的质疑。将达尔富尔的情势提交国际刑事法院,应由独立的机构判断苏丹政府“不愿意”和“不能”行使管辖权的客观证据。这样做,一方面为了充分支持安理会向检察官提交情势的行为;另一方面为了国际刑事法院审判工作的独立性和有效性吸引诸如中国和美国等司法制度健全的非缔约国批准《罗马规约》。中国虽然是非缔约国,但始终支持国际刑事法院的建立及其工作,并对国际刑事法院的审判活动采取一种审视态度。有理由相信,通过国际刑事法院建立的良好工作模式,如对达尔富尔公正有效的处理,以及在我国法律条件成熟的情况下,中国会成为《罗马规约》的缔约国。     

Protectors on trial? Prosecuting peacekeepers for war crimes and crimes against humanity in the International Criminal Court

Allegations of criminal conduct have been made against UN peacekeeping personnel. While only a small number commit criminal offences, these personnel must be held accountable for their actions. Ensuring accountability is difficult due to jurisdictional issues, including in which jurisdiction (host state, sending state, or third state) to prosecute offenders. However, the possibility of the International Criminal Court exercising jurisdiction over peacekeeping personnel (civilian or military) has not really been considered. This article will examine the potential applicability of the substantive law of war crimes and crimes against humanity under the Rome Statute to crimes committed by peacekeeping personnel.     

International criminal justice: reflections on the past and the future

While Nuremberg constitutes a watershed in the evolution of international law with its establishment of the fundamental principle of individual criminal responsibility under international law it has not left much else by way of precedent for the subsequent international criminal tribunals. The adoption of UN Security Council Resolution 827 establishing the International Criminal Tribunal for the Former Yugoslavia, and Resolution 955 (1994) establishing the International Criminal Tribunal for Rwanda, set the groundwork for a new model of hybrid tribunals, with the establishment of the Special Court for Sierra Leone in 2002, the Extraordinary Chambers in the Courts of Cambodia in 2006, and the Special Tribunal for Lebanon in 2007. Perhaps one of the greatest legacies of these ad hoc and hybrid courts and tribunals has been paving the way for the establishment of a permanent international criminal court. However, they have also brought about the development of international criminal law through judicial interpretation, elaborating, inter alia, the elements of the crime of genocide as detailed in the 1948 Genocide Convention, the judicial recognition of the concept of joint criminal enterprise and the principle that national arrangements for amnesties in respect of international crimes are no bar to prosecution for such crimes at an international tribunal. In view of the completion strategies of the ad hoc Tribunals, as well as of the SCSL, this article delves into some of their legacies and outlines some of the difficulties and challenges they have faced, while identifying areas of best practice in order for the newly‐operational International Criminal Court to avoid repeating the mistakes of the past or even reinventing new wheels.     

Amnesties in International Law: The Experience of the Special Court for Sierra Leone

The Special Court for Sierra Leone, a hybrid criminal tribunalestablished to try persons accused of serious crimes duringthe conflict in Sierra Leone, has recently commenced its judicialoperations. Several of the preliminary issues raised by variousdefendants have required the Court to examine the validity ofthe amnesty granted to combatants by the Lomé Peace Agreementand the amnesty's impact upon the Court's jurisdiction to trythe defendants. This article examines the decisions of the Courton the amnesty issue and evaluates the jurisprudence of theCourt with reference to the current status of amnesties in internationallaw.     

State Withdrawal Notifications from the Rome Statute of the International Criminal Court: South Africa,Burundi and the Gambia

In 2016 three African states namely South Africa, Burundi and The Gambia submitted written notifications of withdrawal from the Rome Statute of the International Criminal Court (Rome Statute) to the Secretary-General of the United Nations pursuant to Article 127 of the Rome Statute. Although the African Union welcomed and fully supported the three withdrawal notifications and considered them as ‘pioneer implementers’ of its ‘Withdrawal Strategy’, The Gambia and South Africa withdrew their notifications of withdrawal. Some other states – Kenya, Namibia and Uganda – have made threats to submit withdrawal notifications. This article examines four issues arising out of the said withdrawal notifications. First, why did the three states submit withdrawal notifications from the Rome Statute? Second, what is the impact of the three states’ withdrawal notifications? Third, is the African Court on Human and Peoples’ Rights (or the yet-to-be-established African Court of Justice and Human and Peoples’ Rights) a suitable African regional ‘alternative’ to the ICC? Finally, what steps might be taken to avoid, or at least minimise, further withdrawals in the future and to avoid impunity of perpetrators of international crimes in states that have withdrawn from the Rome Statute?     

Crimes against Humanity, Reasonableness and the Law: the Simon Case in the Supreme Court of Argentina

In the Simón case, decided in June 2005, the ArgentineSupreme Court held unlawful the application of amnesties tocrimes against humanity. The Court relied heavily on the Conventionon the Non-Applicability of Statutory Limitations to War Crimesand Crimes Against Humanity, ratified in 2003 by Argentina.In so doing, however, it ignored significant constitutionalconstraints that give priority to the right not to be judgedby an ex post facto law. The other arguments provided by theCourt also fail to respect the Argentine constitutional order.Thus, notwithstanding the laudable aim of preventing and punishingall crimes against humanity, this decision is regrettable.     

Individual Criminal Responsibility in Article 25 ICC Statute

The collective nature of crimes under international law doesnot absolve us of the need to determine individual responsibility.Article 25 of the Statute of the International Criminal Court(ICC) now contains a detailed regulation of individual criminalresponsibility. While discussing the elements of various modesof individual criminal responsibility, this essay shows thatthe most important difference between prior legal frameworksand Article 25(3) ICC Statute lies not in the redefinition ofthe scope of individual responsibility in international criminallaw, but in the systematization of modes of participation. Thecase is made that Article 25(3) is best construed as a differentiationmodel with four levels of participation. In this model, modesof participation should be understood as indicative of the degreeof individual guilt, and thus as helpful guidelines in sentencingmatters. With particular reference to joint commission, theauthor shows that this concept also leads to a coherent interpretationof the various modes of participation.     

Reparations To Victims Before The International Criminal Court: Lessons From International Mass Claims Processes

The implementation of the rights of victims under the Rome Statute of the International Criminal Court presents momentous challenges to the Court. Given the nature of the crimes falling under the Court's jurisdiction, victims' reparation claims are often likely to number thousands, if not tens of thousands. Under the Statute, it is the Court's task to organize and determine the modalities of victims' participation in the reparation proceedings. The Court is well advised to closely examine the approaches and solutions developed by modern international and national mass claims programs that have faced similar challenges. The paper analyses in detail these challenges and outlines the options available to the Court. The authors are attorneys with Lalive, an international law firm based in Geneva, Switzerland. For further information see http://www.lalive.ch.     

Iraq and the case for Australian war crimes trials

This article presents the case for Australian war crimes trials, following Australian participation in the invasion of Iraq and the subsequent deaths of as many as a million Iraqi civilians. It focuses on jus in bello (war crimes) rather than jus ad bellum (just war). The article sets out the argument and rationale that Australian war crimes trials are needed. Having established the necessity, the article identifies two of the principal alleged atrocities for which Australian officials should be held criminally accountable. It details Australian military support for the use of cluster bombs against civilians during the 2003 invasion, and senior Australian military commanders’ responsibility for planning and carrying out multiple purported war crimes during the attack on Fallujah in late 2004. The article recognises that, in order for Australian officials to be prosecuted under the International Criminal Court (ICC), all domestic remedies must be first exhausted. It therefore specifically addresses which Australian laws can be used, with particular emphasis on anti-terrorist legislation passed in 2002 under the Howard Government and the introduction into Australia’s domestic federal criminal legislation offences equivalent to the ICC Statute offences of genocide, crimes against humanity and war crimes. These provide the most applicable legal tools for prosecuting senior Australian officials for war crimes in Iraq.