The Implementation of the ICC Statute in Argentina

Argentina ratified the International Criminal Court (ICC) Statutein November 2000 and adopted an Implementation Law in December2006. The Law introduces into domestic legislation the crimesfalling under ICC jurisdiction by means of renvoi to the Statute.Such procedure avoids the risk of a unilateral definition ofthe crimes. In addition, the Law provides for a range of penaltiesincluding incarceration. Regrettably penalties envisaging restitution,reparation or rehabilitation of the victim are not providedfor in the Law. In terms of cooperation with the ICC, the Lawestablishes mechanisms for an open and efficient relationshipwith the Court in case of arrests and surrender of persons,as well as requests for assistance and preliminary rulings.     

The Personal Nature of Individual Criminal Responsibility and the ICC Statute

By affirming criminal responsibility of the individual, theICC Statute recognizes a distinction from the internationalresponsibility of states, which is the basis of modern internationalcriminal law. The importance of the principle is evident notonly in the breadth and analytical nature of the provision dealingwith it, i.e. Article 25 of the Statute, but by its being placedin the part of the Statute devoted to the ‘General Principlesof Criminal Law’. After an introductory considerationof the context of the Article and of its general implications,this article analyses the contents of the regulation and thetype of responsibility outlined in it. The principle that emergescould be called the ‘personal nature’ of internationalcriminal responsibility. Although the general principles setout in the ICC Statute are rather rudimentary in comparisonwith what is to be found in the ‘General Part’ ofmost national criminal laws, the principle of personal responsibilityemerging from the Statute is nevertheless in the best traditionsof criminal law. It serves both as the foundation and as thelimitation of international criminal responsibility, so helpingto ensure that modern international criminal law is not a toolfor oppression but rather an instrument of justice.     

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.     

Critical Thoughts on Article 59(2) of the ICC Statute

The International Criminal Court (ICC) has already issued itsfirst arrest warrants. Hence, the question of the custodialstate arresting a person in response to a request issued bythe Court and his or her appearance before competent judicialauthorities (per Article 59(2) ICCSt.), becomes compelling.Several pertinent questions arise in relation to the applicationof this provision. The article addresses, in particular, issuessuch as: (i) the rationale for Article 59; (ii) the implicationsof paragraph 2; (iii) the consequences of non compliance withthis provision; (iv) the impact of human rights decisions onits application and (v) the question of self-referrals in relationto paragraph 2.     

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)     

Mala Captus Bene Detentus and the Right to Challenge the Legality of Arrests Under the ICC Statute

The parameters of legal structures within which perpetrators of most serious international crimes are surrendered to the ICC and the legal frameworks within which the rights of such individuals are best protected are not sufficiently precise in international law. By examining both international and some national jurisprudence with regard to mala captus bene detentus practice, the reach of the right to challenge the legality of one’s arrest is evaluated with a conclusion that there is no uniform state or international practice and that the ICC Statute does not resolve the status of the doctrine nor does it regulate the effects of abuse of process against accused persons.

South Africa's PNR regime: Privacy and data protection

There has been an increase in the collection and use of Passenger Name Record (PNR) data for security purposes globally. Though academic analysis of this trend has remained focused largely on the North American and European context, the Government of South Africa has been using PNRs since 2014 for security purposes. South Africa was the first country on the African continent to implement such a regime and is one of only thirteen states internationally to link its Advanced Passenger Information (API) and PNR systems. While there has been little attention on South Africa's use of PNRs, an inquiry into the country's PNR practices reveals striking privacy concerns, including the potential permanent retention of PNR data and a failure of the state to fully disclose if, and under what conditions, PNR data can be shared with other states. While South Africa has implemented a PNR regime that is comparable to the highest international standards, the data protection requirements appear to be far less developed. In fact, South Africa's PNR regime remains enigmatic as all indications and mention of PNR are elusive and scattered across government publications. As such, this paper aims to provide an introduction into the elements of South African PNR use, including the implications as they relate to law, data protection, and privacy.     

国际刑事法院管辖权与联合国安理会职权关系论——《罗马规约》的妥协性规定评析

关于国际刑事法院管辖权与联合国安理会职权的关系,《罗马规约》作出了妥协性的规定,二者的关系既表现为平等与协作,又反映出相互间的适度制约。这种妥协性的规定反映了国际社会现实,体现了国际刑事法院司法职能与安理会政治职能的相对分离和互动,具有现实合理性。     

《罗马规约》在亚洲的批准与实施探究

回顾<罗马规约>在亚洲的批准情况,并分析多数亚洲国家不愿签署和批准规约的基本缘由;进而,在全面介绍规约在亚洲国家实施概况的基础上,重点介绍规约在柬埔寨的实施情况.最后,还就如何推促规约在亚洲的签署与批准问题,阐释了作者的基本观点.     

In search of interactive globalisation: Critical criminology in South Africa's transition

Maureen Cain (2000) identifies orientalism and occidentalism as features of much criminological writing on ``non–western' societies. As alternatives to these opposite but complimentary tendencies, she argues for the possibility of mutual and reciprocal learning under conditions of interactive globalisation. The purpose of this article is to look for evidence of orientalism, occidentalism and interactive globalisation in the exchange of critical criminological ideas between North and South during the period of South Africa's transition to democracy. The discussion focuses on two bodoes of critical criminological work –– left realism and nodal governance theory –– and traces their development–in–use both as examples of criminological theorising and attempts to reshape the practice of policing. traces of orientalism and occidentalism are detected in the evolution of critical criminology in South Africa over the last 25 years, but it is argued that the exchange of criminological ideas has been far from unidirectional and can indeed be characterised as a continuing process of interactive globalisation.     

Article 75 of the Rome Statute: Reparations and Their Implementation in the Dutch Legal System

Netherlands International Law Review - Unlike the ICTY and ICTR Statutes, the Rome Statute of the ICC provides in Article 75 for various forms of court-ordered reparations for the victims of...     

国际刑事法院《罗马规约》犯罪构成要件刍议——以危害人类罪作为样本

尽管世界各国对于犯罪的规定各不相同,但其犯罪规定中所涵盖的成立犯罪的要件(犯罪要素)却大体相当.这种认识对象与内容的相通,正是国际犯罪概念和国际刑事司法审判活动及其机构产生的基础.国际刑事法院管辖的是整个国际社会关注的最严重犯罪,具体包括四类:灭绝种族罪、危害人类罪、战争罪和侵略罪.《罗马规约》对于犯罪构成要件的规定采用规约规定与《犯罪要件》细释相结合的方式,为在国际刑法领域实现法治化作出了有益的创新,开辟了国际刑事司法的新纪元.     

《国际刑事法院罗马规约》浅析

20 0 2年 7月 1日 ,《国际刑事法院罗马规约》(以下简称“罗马规约”或“规约”) 〔 1〕 经 67个国家批准 ,1 39个国家签署后生效。〔 2〕 这标志着国际刑事法院的正式成立 ,并将对国际法和国际刑法在新世纪的发展产生重大的影响。对于国际刑事法院的成立与罗马规约的生效 ,“大多数国际刑法学者更是欢欣鼓舞 ,对这部国际刑法法典倾注了很大的热情。”〔 3〕 著名国际刑法教授巴西奥尼先生甚至指出 :“国际刑事法院的建立象征并包含着全世界人民所共有的某种基本价值和期望 ,因此 ,也是世界人民的胜利。”〔4〕 国内法学界对罗马规约的制定…     

Corruption and the South African Police

The literature on corruption in countries in the course of transition is likely to escalate in the light of changes in Eastern Europe (Holmes 1997, Varese 1997). The ‘end of empire’ is associated with the breakdown in the rule of law. Through a variety of subterfuges, both individuals and corporate bodies seek to ensure their own survival, within the matrix of the collapse of legal order. In South Africa, similar transformations, as epitomised by the hearings of the Truth and Reconciliation Commission, have provided a window of opportunity to unveil the mechanisms which maintained that apartheid regime for nearly half a century. Understanding that complex practice of state deviance entails recognising the different levels of state power and malpractice in that country. This article flows directly from the Foucauldian notion of the decentralisation of power in modern society. Power in the authoritarian state is not just a function of a clearly-defined state apparatus. Rather that locus co-exists with various sub-foci at lower levels of state and civil society, in which local interactions and power relations, contribute to the totality of control. Apartheid survived for many years not because it signified an authoritarian centralised state but because it could rely on individuals and agencies at lower strata of power to contribute their own efforts to sustaining that abnormal structure. Deviance by state personnel at different levels – to which the Nelson's eye was turned – was critical to the maintenance of white hegemony. The article focuses directly on one such nexus – the extent to which different interests – financial, organisational, and a commitment to racial hegemony – cooperated in a seamless web to ensure that the white rule was paramount in micro-level decision-making structures. Micro-level influences on police training and of police promotions – deviant by any conventional yardstick-served both state and individual interests. This revised version was published online in July 2006 with corrections to the Cover Date.     

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?