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.     

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.     

Plea Agreements in the ICTY: Purpose, Effects and Propriety

Plea agreements have an impact on a number of issues affectingvictims or perpetrators, extending beyond the resource and investigativeadvantages that prompted the growing use of plea agreementsin the International Criminal Tribunal for the former Yugoslavia(ICTY). This article considers whether these effects advanceor offend the objectives underlying the establishment of theICTY. It argues that the plea-agreement process has positiveconsequences for the creation of a historical record and forproviding an opportunity for victims to be heard. It also contendsthat recent rulings have reduced the possibility that plea agreementsmight result in unequal treatment of convicted persons or dismissalof critical charges. Finally, the article suggests that theultimate contribution of plea agreements to the work of theICTY should be viewed not principally as a saving in resources,but rather as a tool for furthering accountability and justiceunder the all too real pressures of limited time and resourceson the fulfilment of the ICTY's mandate.     

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...     

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.     

Constructing Achievement in the International Criminal Tribunal for the Former Yugoslavia (ICTY): A Corpus-Based Critical Discourse Analysis

The International Criminal Tribunal for Yugoslavia (ICTY) was established by the UN Security Council in 1993 to prosecute persons responsible for war crimes committed in the former Yugoslavia during the Balkan wars. As the first international war crimes tribunal since the Nuremburg and Tokyo tribunals set up after WWII, the ICTY has attracted immense interest among legal scholars since its inception, but has failed to garner the same level of attention from researchers in other disciplines, notably linguistics. This represents a significant research gap, as the Tribunal’s public discourse (notably its case law and Annual Reports) can open up interesting avenues of analysis to researchers of law, language, and legal discourse alike. On its official website, the Tribunal claims that it has “irreversibly changed the landscape of international humanitarian law” and lists six specific achievements: “Holding leaders accountable; bringing justice to victims; giving victims a voice; establishing the facts; developing international law and strengthening the rule of the law”. While a number of legal scholars have studied and critiqued the level of ‘achievement’ actually attained by the Tribunal against these metrics and others, of interest to linguists is the ways in which this work might be conveyed discursively. In this paper, we demonstrate how methods from the linguistic field of corpus-based critical discourse analysis can be utilised to explore the discursive construction of such achievements in the language of the ICTY.     

非政府组织与国际刑事法院

近十年来,非政府组织在国际关系中取得的最大成绩就是在促成国际刑事法院的建立方面做出了巨大的努力和贡献。从建立国际刑事法院构想的提出,到《国际刑事法院规约》的起草、谈判,到《规约》的通过与生效,以"支持国际刑事法院的非政府组织联盟"(简称"国际刑事法院联盟")为核心的非政府组织都发挥了至关重要的作用。在国际刑事法院的诉讼程序中,非政府组织也可以发挥信息提供者、法庭之友、法院与受害人和证人之间桥梁、监督人等作用。国际刑事法院已正式认可了非政府组织的作用。非政府组织在国际刑事法院的建立和运行中所发挥的作用堪称国际市民社会参与国际关系的一个范例。     

Who is Afraid of Punishing Aggressors?: On the Double-Track Approach to International Criminal Justice

Since 1947, no alleged crime of aggression has ever been prosecuted,in spite of the many instances in which states have committedacts of aggression with the Security Council sometimes deemingan act to be such. A dual system of international criminal justicehas taken shape slowly. Crimes consisting of serious violationsof jus in bello, that is, war crimes, usually considered lessegregious than the crime of aggression, have been severely prosecutedand punished, in particular by the International Criminal Tribunalfor the former Yugoslavia (ICTY). Yet, the ‘supreme internationalcrime’ — aggressive war — mostly committedby political and military authorities of major powers, has beenignored and its perpetrators still occupy the summit of internationalpower undisturbed.     

前南国际刑事法庭刑事程序中的普通法和大陆法传统：油能溶于水吗

在前南刑事法庭刑事程序中,国际刑事案件的独特性使得越来越多的大陆法系传统因素开始注入普通法诉讼模式。两大法系之间的传统差异已经渐渐走向融合。这些不同的制度应灵活而和谐地相处,共同解决国际犯罪审判所特有的问题。     

Finding a Proper Role for Command Responsibility

This article examines the role that command responsibility currentlyplays in the case law of the International Criminal Tribunalfor the former Yugoslavia (ICTY) and the International CriminalTribunal for Rwanda (ICTR). The ad hoc tribunals rely in principleon a broad concept of command responsibility – which canbe applied to all superiors, including political and civilianones. However, in practice, accused persons have only rarelybeen successfully charged under this form of liability. Indeed,recent case law has gradually adopted a rigorous approach withrespect to the legal requirements of command responsibility.This has made it more difficult to establish criminal liabilityof superiors who have not directly participated in the commissionof international offences. The ad hoc tribunals have expressedan explicit preference for forms of ‘direct’ liabilitywhere the accused can be convicted both under ‘direct’and command responsibility. While the ICTY and ICTR have progressivelyinterpreted other international legal concepts to deal effectivelywith collective crimes committed by leaders of organized groups,they seem to have confined command responsibility to internationalcrimes perpetrated in typical military-like contexts.     

The ICC -- Quo Vadis?

The International Criminal Court (ICC) has had to face manyobjective difficulties in its initial stage. The self-referralsby Uganda and the Democratic Republic of Congo (DRC) pose problems.As for Uganda, the unsealing of the indictments is an achievementfor the Court; however, the rhetorical conflict between thereferring government and the ICC, the continued insecurity innorthern Uganda and the fact that the accused commanders arenot in the custody of the Ugandan authorities highlight thedependence of the ICC on the cooperation of national governments.As for the DRC, the transfer to The Hague of one of the indictees,Lubanga, is significant. Supporters of the ICC hope that thistrial will help to ease many doubts about the direction of theCourt, as the Tadi case was able to do for the InternationalCriminal Tribunal for the former Yugoslavia (ICTY). The SecurityCouncil referral of Darfur is a mixed blessing, on a numberof grounds. However, the posture of Sudanese authorities andthe worsening of the situation in Darfur and eastern Chad clearlyindicate that the ICC does not yet have a deterrence capability.     

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。     

论卢旺达国际刑事法庭的管辖权

卢旺达国际刑事法庭的管辖权包括五类:其属地管辖权涵盖卢旺达及其邻国;其属人管辖权限于自然人;其属事管辖权包含种族灭绝罪、反人道罪和战争罪;其属时管辖权仅限于1994年度发生的犯罪,遭到卢旺达政府的批评;其并行管辖权和优先管辖权则与前南斯拉夫国际刑事法庭规定的同名管辖权有着质的区别。     

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.     

The Creation of Investigating Chambers at the International Criminal Court: An Option Worth Pursuing?

At a time when the position of investigating judge has beenabolished in a number of civil law countries, and is being questionedin those in which it remains, it might seem curious to callfor such a position to be created at the International CriminalCourt (ICC). However, experience at the ad hoc internationalcriminal tribunals (‘ad hoc tribunals’), and especiallyat the International Criminal Tribunal for the former Yugoslaviashows that the essentially adversarial procedure used in internationalcriminal proceedings is not wholly suitable for trying complexand highly political international cases. Having investigatingjudges participate in the investigations of such cases coulddecisively enhance the effectiveness, legitimacy and fairnessof international proceedings. This would be particularly appropriatein the ICC's complex legal system, which allows victims to participatein the proceedings and claim reparations. However, this newprocedure must clearly come with a number of safeguards in orderto avoid the failures attendant on the use of the investigatingjudge in domestic systems, which could be fatal to an embryonicand fragile international court.     

Command Responsibility: Mode of Liability for the Crimes of Subordinates or Separate Offence of the Superior?

The nature of command responsibility is still open to debatein international criminal law: is a superior to be held criminallyresponsible for the crimes committed by his subordinates ‘asan accomplice’, for having participated in the commissionof the crime by omission, or as a perpetrator of a separateoffence of dereliction of duty? This article surveys the post-WW2case law and the first international instruments on this point,and then analyses the jurisprudence of the International CriminalTribunal for the former Yugoslavia (ICTY). The judges appearto have recently adopted a new approach to Article 7(3) ICTYSt.in that the superior is held responsible ‘for failureto prevent or punish with regard to the crimes of the subordinate’and no longer ‘for the crimes of his subordinates’.It is a responsibility ‘sui generis’ indeed, wherethe crime of the subordinate plays a central role in the attributionof responsibility to the superior. It is, therefore, necessaryto carefully consider the relationship between the superior'sfailure to act and the subordinate's crime, both with regardto objective and subjective elements. The same question finallyarises in relation to Article 28 of the Rome Statute, the literalinterpretation of which implies that a superior shall be punishedfor the same crime committed by his subordinates. In order toavoid the risk of holding a person guilty of an offence committedby others in violation of the principle of personal and culpablecriminal responsibility, it is crucial to consider separatelythe different cases of command responsibility, which are basedon distinct objective and subjective requirements.     

Legal Professionalism and International Criminal Proceedings

In criminal practice before international tribunals, the boundariesbetween lack of professionalism (serious misconduct) by prosecutionand taking an erroneous position on the law (procedural error)are particularly blurred, if only because the backgrounds andexpectations of all persons involved in the proceedings areprofoundly different and the playing field is still insufficientlydefined. This is illustrated by the Furundija case brought beforean International Criminal Tribunal for the former Yugoslavia(ICTY) Trial Chamber in 1998. In that case the Chamber heldthat the prosecution, by failing to disclose a document to thedefence, had both engaged in serious misconduct and made a seriousprocedural error. Instead, the Lord Advocate and the Crown Agentof Scotland, later consulted by the ICTY Prosecutor, concludedthat there had only been an error of judgment. National caselaw, for instance that of Canadian courts, makes it clear thata good faith decision not to disclose a document, made in theexercise of professional judgment on a difficult and novel issue,may constitute an error of judgment, but certainly does notamount to misconduct.     

The ICC and Russian Constitutional Problems

The Statute of the International Criminal Court (the ICC Statute)has not yet been submitted to the Russian parliamentary chambers,the Duma, and the Council of the Federation. However, an Inter-AgencyPanel led by the Ministry of Justice has been set up, with aview to drafting amendments to current Russian legislation andfacilitating Russia's cooperation with the ICC. Major problemsstanding in the way of Russia's ratification include certainprovisions of Russia's Constitution, which, for instance, donot provide for an international court substituting nationalcourts, and lay down the right to jury trial and the right toseek pardon. However, there are various ways of reconcilingthe Constitution with the ICC Statute. In short, there are noinsurmountable legal hurdles to harmonizing the Russian Constitutionand laws with the ICC Statute: the question of Russia's ratificationis mostly a question of political will.     

Investigation and Prosecution of Large-scale Crimes at the International Level: The Experience of the ICTY

Although the prosecution of large-scale crimes at the internationallevel shares some similarities to the prosecution of organizedcrime at the national level, there are a number of importantdifferences that make the two areas hardly comparable. Two distinctivetraits of international criminal proceedings stand out in thisregard: (i) the lack of any enforcement agency that would allowprosecuting authorities to carry out investigations on the territoryof an interested state without its assistance and the absenceof a general power to carry out such arrests, which render statecooperation of prime importance and (ii) the fact that the proceduralmodel of international criminal tribunals is mixed containingelements of accusatorial (common law) as well as inquisitorial(civil law) systems. As far as prosecutions are concerned, usefulconcepts and procedures adopted from both legal traditions canbe found in the Statute, the Rules of Procedure and Evidenceas well as in the approach of prosecutors, defence counsel andjudges to the introduction of evidence and, more generally,to the manner in which proceedings are conducted. One of themain examples of this is the acceptance of proof of facts bymeans other than oral evidence as a result of the influenceof the civil law tradition, which has progressively made itsway in the procedural system of the International Criminal Tribunalfor the former Yugoslavia (ICTY). Yet, on the other hand, somemethods normally resorted to in national criminal prosecutionmay turn out to be useful at the international level, such asresorting to insider witnesses. Although known to domestic systems,such practice may have a particular significance in the contextof the prosecution of international crimes. So have additionalforms of criminal participation (such as the notion of jointcriminal enterprise). Only a mixing of traditional and innovativeinvestigative tools and the proper balance of the differentlegal cultures can ensure effective prosecution of internationalcrimes.     

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