Journal of International Criminal Justice - recent issues

Introduction

Stewart, J. G. — Tue, 13 Oct 2009 23:44:04 PDT

The History of the Grave Breaches Regime

Sandoz, Y. — Tue, 13 Oct 2009 23:44:04 PDT

Criminal punishment for violations of the laws of war date to the earliest formal codifications. In particular, the Lieber Code of 1863 contained a large number of references to criminal punishment, which ultimately influenced a large number of the subsequent treaties. This said, initial codifications of the laws and customs of war after Lieber but before the Geneva Conventions of 1949 made only scant reference to individual criminal liability. Nonetheless, the grave breaches regime emerged in 1949 as an important response to the sufferings of Second World War. The idea behind the regime was that certain offences were sufficiently grave to warrant explicit codifications as war crimes. The development of grave breaches was then continued in 1977, first by the inclusion of further offences within Additional Protocol I, then by inclusion of the grave breaches regime within the Statute of the International Criminal Court. As a general rule, this development has nonetheless involved developing rules to deal with the horrors of the past. Potentially, history will serve as a helpful guide for countering the numerous challenges that face grave breaches in the future.

The Grave Breaches Regime as Customary International Law

Henckaerts, J.-M. — Tue, 13 Oct 2009 23:44:04 PDT

The Geneva Conventions were adopted 60 years ago. Today, they are universally ratified. Notwithstanding their universal adherence as treaty law, the customary nature of the provisions of the Geneva Conventions remains relevant. This article examines the claims that the Geneva Conventions, in general, are part of customary international law. Beyond this level of generality, it argues that the grave breaches regime is part of customary international law, including the definition of the grave breaches as well as the procedural rules governing grave breaches. The latter include the obligation to enact effective penal sanctions in domestic law and the obligation to search for and to try or extradite persons suspected of grave breaches on the basis of universal jurisdiction. The article argues that these rules are not simply ‘technical’ rules but are ‘fundamental to the respect of the human person and [humanity]’, a phrase used by the International Court of Justice when examining the customary nature of the Geneva Conventions.

The Implementation of Grave Breaches into Domestic Legal Orders

Dormann, K., Geiss, R. — Tue, 13 Oct 2009 23:44:04 PDT

States are required to implement grave breaches within their domestic criminal law. The obligation to enact legislation necessary to provide effective penal sanctions in relation to grave breaches lies at the heart of any meaningful prosecution of grave breaches of the Geneva Conventions. Knowing what is required of states and understanding the different models of implementation is essential. Yet, despite its importance, this specific obligation has led a somewhat shadowy existence, often neglected in state practice and academic research. It is against this background that the present contribution aims to bring into focus the scope and precise content of this somewhat ambiguously formulated obligation.

The Prosecution of Grave Breaches in National Courts

Ferdinandusse, W. — Tue, 13 Oct 2009 23:44:04 PDT

This article surveys the prosecution of acts constituting grave breaches of the Geneva Conventions in national courts. In these national prosecutions, international criminal law is not always applied in a uniform manner. Acts constituting grave breaches are not only prosecuted as such, but are also charged as other international crimes (like crimes against humanity or genocide) or ordinary crimes, like murder. The author argues that a divergent national application of international criminal law is not necessarily problematic but can (within the limits posed by international law) be a useful and important motor for the development of the law. A survey of national case law demonstrates the potential of the grave breaches regime to ensure universality of punishment for these war crimes, and also reveals that the grave breaches regime has so far not lived up to its potential.

The Contribution of the ICTY to the Grave Breaches Regime

Roberts, K. — Tue, 13 Oct 2009 23:44:04 PDT

This article considers the contribution of the International Criminal Tribunal for the former Yugoslavia (ICTY) to the grave breaches regime as the first body to systematically apply these provisions, and argues that the jurisprudence has breathed life into the regime. It has clarified when grave breaches may apply, through the elucidation of the ‘overall control’ test in establishing the internationality of a conflict; how the regime may be applied in a practice, through the operation of a nexus requirement; and who may benefit from the protection of the regime, through a modern interpretation of ‘protected person’. It is argued that the ICTY has significantly contributed to the definition of underlying grave breaches. With respect to torture, the contribution has been both with respect to the identification of comprised acts, such as rape and other abuses of a sexual nature, as well as in distinguishing the definition from that applied under the Torture Convention. Concerning unlawful confinement, the contribution has focused on interpreting the interaction of different provisions of Geneva Convention IV to bring the breach to life. Ironically, some of these positive contributions may have had the unintended consequence of reducing the role of grave breaches in the charging practices of the Prosecution.

Grave Breaches and Internal Armed Conflicts

Moir, L. — Tue, 13 Oct 2009 23:44:05 PDT

International law has historically been more concerned with the regulation of international, rather than internal, armed conflict. As an integral part of this regime, aimed specifically at the violation of particular rules relating to international armed conflict, the grave breaches provisions of the Geneva Conventions and Additional Protocol I have no apparent relevance to internal armed conflict. This article argues that the concept of grave breaches has, nonetheless, impacted in a significant way upon both the substantive laws of internal armed conflict and their criminal enforcement against individuals. Whether the law has developed to a point where grave breaches can equally be committed during internal armed conflict, or where violations of the laws of internal armed conflict can be considered grave breaches such that the obligations to investigate those offences and to prosecute or extradite offenders now also apply — either through the adoption of a teleological approach to the Geneva Conventions, or else through the development of a new customary rule to that effect — is rather more dubious.

Reflections on the Iudicare Limb of the Grave Breaches Regime

Kress, C. — Tue, 13 Oct 2009 23:44:05 PDT

This article addresses the iudicare limb of the grave breaches regime. While the Hague formula of aut dedere aut iudicare must certainly be considered when construing the iudicare limb of the grave breaches regime, this article shows that the iudicare limb applicable to grave breaches is independent of other similar conceptions. Moreover, we see that there is no absolute duty to arrest, nor can there be an absolute duty to prosecute and to punish. What the iudicare limb in fact entails is a duty to investigate and, where so warranted, to prosecute and to convict. In some circumstances, immunities influence this obligation. There are, in addition, certain implications arising from the procedural safeguards implicit in the iudicare limb. Finally, this article concludes with a word of caution concerning amnesties in hybrid accountability systems, querying whether international practice might slowly come to accept a less categorical regime, as it does in the field of war crimes committed in non-international armed conflicts and crimes against humanity. This would perhaps better reflect the political complexities of the transition from armed conflict to peace.

The Grave Breaches Regime and Universal Jurisdiction

O'Keefe, R. — Tue, 13 Oct 2009 23:44:05 PDT

The mandating of universal jurisdiction by the grave breaches provisions of the 1949 Geneva Conventions was an innovation in relation to both the penal provisions of prior treaties and the prevailing understanding of the international legal basis for national jurisdiction over war crimes. Despite not having been relied on until the 1990s to ground national prosecutions on the basis of universality, the grave breaches provisions have exerted an influence on the development of both treaty-based and customary rules on universal jurisdiction. In some respects, however, this influence has been as an example of how not to draft jurisdictional provisions in international criminal law conventions.

Shortcomings of the Grave Breaches Regime

Fleck, D. — Tue, 13 Oct 2009 23:44:05 PDT

This contribution reviews shortcomings of the grave breaches system as they have evolved in recent jurisprudence and state practice. It first considers textual problems identified by the International Criminal Tribunal for the former Yugoslavia in this respect and evaluates the solutions applied by the Tribunal. Second, the article will assess shortcomings of law and practice related to the application of universal jurisdiction addressing the question of whether failures are political or legal. In the light of such shortcomings, the article will discuss the issue of universal jurisdiction over war crimes as a permissive rule of customary law. Finally, some conclusions are drawn, with a view to outlining some of the remaining problems for the prosecution of serious violations of international humanitarian law, and developing effective solutions.

The Future of the Grave Breaches Regime: Segregate, Assimilate or Abandon?

Stewart, J. G. — Tue, 13 Oct 2009 23:44:05 PDT

The future of the grave breaches regime is impossible to predict with any degree of accuracy — the grave breaches regime has developed in terms that those who negotiated the Geneva Conventions did not foresee, and we are no better situated to guess how the coming decades will unfold. Nonetheless, three possible futures are plausible. In the first, the grave breaches regime may remain segregated from other categories of war crimes in deference to the historical development of these crimes. This future, however, is one that will see a relatively dramatic decline in the use of grave breaches in practice, primarily because other offences cover the same acts more efficiently. In the second possible future, the grave breaches are entirely abandoned, but this eventuality seems both improbable and undesirable. Even though judicial pragmatism has diminished aspects of the grave breaches regime that were once unique, grave breaches still offer important features over and above all alternatives. The grave breaches regime is therefore unlikely to disappear entirely. A third possible future involves assimilating the grave breaches with other categories of war crimes, ideally through the promulgation of a more coherent treaty regime. In the short term, this proposition appears politically untenable, leaving judges to unify the stark disparities between grave breaches and other war crimes. A future that continues to adopt this course will nonetheless pose serious problems for the discipline in the years to come.

Editorial

Zappala, S. — Mon, 27 Jul 2009 06:56:22 PDT

Memory as Remedy for Evil

Todorov, T. — Mon, 27 Jul 2009 06:56:22 PDT

It is often presumed that, if we remember the evil committed in the past, we can avoid it today. However, there is no reason to conclude that evil is generally on the decline. If we observe the process of production of narratives about evil and good, we can identify four main roles: on the one hand (i) the villain and (ii) his victim; on the other (iii) the hero and (iv) his beneficiaries. To this, one should add the distinction between (a) us (our community) and (b) the others (those who are foreign, different or enemies). The sterility of calls to remember is rooted in our constant identification with heroes or victims and the extreme distance we put between evildoers and ourselves. A survey of the French experience shows that to prevent a ‘repetition of events’ requires thinking about the circumstances that gave rise to barbarous acts, the motivations of those who were responsible and the means they employed. Consideration of the Khmer Rouge crimes (1975–1979) shows that terrible collective crimes are not the work of sadists or the mentally ill, but result from reactions familiar to everyone. The Khmer Rouge dreamed of a purified society, purged of its enemies, at long last ‘delivered from evil’. The end seemed to justify the means. According to the author, it is wrong to believe that criminals are different from us, that they are ‘inhuman’. The difference between executioners and victims does not lie in the biological nature of individuals: there is no DNA specific to murderers. Instead, it proceeds from the differing circumstances in which the destiny of one individual unfolds from that of another. How then should we react to evil? When tackling the problems of a traumatic past, we can pursue two different goals: to achieve abstract justice, through the punishment of the culprits, or to aim at the moral well-being of the persons living in the community affected by the crimes. Thus we can have ‘punitive justice’, which uses means such as executions and imprisonment, and aims exclusively at the application of the law, and ‘restorative justice’, which uses other means of punishment and pursues the moral well-being of the community, as was the case for the South African Truth and Reconciliation Commission. In sum, according to the author, the memory of the past serves no purpose if it is used to build an impassable wall between evil and us — we, who identify exclusively with irreproachable heroes and innocent victims and seek to drive the agents of evil outside the confines of humankind. In everyday life, we easily forget the harm we have inflicted, but hold onto the memory of the harm we have endured. The remedy must not consist in merely remembering the evil to which our group or our ancestors were victims. We have to go a step farther and ask ourselves about the reasons that gave rise to the evil.

The Limits of Retributive Justice: Findings of an Empirical Study in Bosnia and Hercegovina

Clark, J. N. — Mon, 27 Jul 2009 06:56:22 PDT

Notwithstanding the recent proliferation of war crimes tribunals, a fundamental question remains: whether the confidence that such institutions have generated among their supporters is, in fact, justified. Using the International Criminal Tribunal for the former Yugoslavia (ICTY) as a case study, this article empirically explores four reputed merits of criminal trials — that they dissipate calls for revenge, individualize guilt, establish a historical record and contribute to reconciliation. It demonstrates that each of these claims, with the possible exception of the first, is problematic, which, in turn, highlights the limits of retributive justice. Hence, the article advocates the creation of a Truth and Reconciliation Commission in Bosnia to complement the ICTY's work. It also maintains that our expectations of war crimes tribunals need to be more realistic, in view of the obstacles and challenges that they face, and that their mandates should be more specifically tailored to the particular circumstances in which they are operating.

Courts of Armed Opposition Groups: Fair Trials or Summary Justice?

Sivakumaran, S. — Mon, 27 Jul 2009 06:56:22 PDT

Courts of armed opposition groups are a frequent feature of internal armed conflicts. The Frente Farabundo Martí para la Liberación Nacional of El Salvador, Liberation Tigers of Tamil Eelam of Sri Lanka and Revolutionary United Front of Sierra Leone all conducted trials in courts they convened. These courts are often criticized for failing to afford fair trial guarantees. This article takes a look at these courts and assesses the criticisms made of them, identifying precisely which due process guarantees are applicable in time of internal armed conflict and how they are interpreted. The article goes on to address the legitimacy of these courts and whether the international community should engage with them, considering some of the advantages and disadvantages engagement brings.

Foreword

Zappala, S. — Mon, 27 Jul 2009 06:56:22 PDT

The Hazards of Interdisciplinary Pollination: Some Critical Comments on Defending Humanity

Dinstein, Y. — Mon, 27 Jul 2009 06:56:23 PDT

The author criticizes the book by Fletcher and Ohlin, Defending Humanity: When Force is Justified and Why? on the grounds that in attempting to develop a new construct of ‘legitimate defence’ — through a fusion of notions of criminal law, international law and philosophy — it is merely creating confusion where ‘self-defence’ is concerned. The author argues that analogies from domestic law are not helpful, and valiant efforts to bring into the fold of ‘self-defence’ the controversial concept of ‘humanitarian intervention’ are not really successful.

A Plea for Defending Humanity

Meyer, R. V. — Mon, 27 Jul 2009 06:56:23 PDT

In this short article, the author addresses some of the criticisms Professor Dinstein raises of the book, Defending Humanity. He argues that these criticisms undervalue both the use of robust jurisprudence of domestic criminal law in fleshing out international criminal law concepts, and the potential of resorting to this wealth of case law to interpret traditional international law from different perspectives. Moreover, in the author's view, Professor Dinstein's unstinting reliance on positive international law is not entirely convincing and is applied inconsistently in support of his strict interpretations.

Can Romantics and Liberals be Reconciled?: Some Further Reflections on Defending Humanity

van der Wilt, H. G. — Mon, 27 Jul 2009 06:56:23 PDT

In their thought-provoking study, Defending Humanity: When Force is Justified and Why?, Fletcher and Ohlin investigate the analogies between individual self-defence in criminal law and collective self-defence in international law. This paper seeks to pursue this intriguing issue, by focusing on a tension between the normative aspiration to separate both components rigidly and social reality in which they are blurred. Obviously, the latter stems from man being a social animal, a situation which is reinforced in time of war, when he identifies himself — and is identified by others — with a collective. Like Fletcher and Ohlin, the author acknowledges international criminal law's mission to bridge the gap between the collective and individual aspects of warfare. But different from Fletcher and Ohlin, whose intellectual quest compels them to highlight the Romantic preoccupation with the collective aspects of warfare, the author emphasizes the need for an individualistic counterweight. In his opinion, such a reappraisal of the individual dimension deeply influences the assessment of both collective and individual self-defence as well as their mutual relationship.

The Analogy's Limit: Defending the Rights of Peoples

Shany, Y. — Mon, 27 Jul 2009 06:56:23 PDT

In Defending Humanity: When Force is Justified and Why? George Fletcher and Jens Ohlin introduce a thought-provoking analogy between self-defence under criminal law and under public international law. At first glance, the analogy is appealing, as it is reasonable to assume that the meaning attributed to the concept of ‘self-defence’ in domestic criminal law has shaped, at least to some extent, the way self-defence has developed in international law. Still, the article argues that context matters, and that the different institutional configuration of the national and international legal and political systems undercuts the analogy offered by Fletcher and Ohlin. Section 1 of the article discusses Fletcher and Ohlin's légitime défense argument — that is, that the right to self-defence provides broad authority to use of force in order to defend a state's own interests or the interests of other states or nations from unlawful violent acts. Arguably, such an argument runs contrary to the renunciation by the UN Charter of the just war theory and is incompatible with the institutional structure that the Charter has created. Section 2 specifically examines the possibility of invoking légitime défense in order to protect sub-statal ‘nations’ (in the framework of humanitarian intervention). Section 3 concludes by offering some observations on the potential analogy between domestic and international criminal law.

The Natural Right to Intervene: The Evolution of the Concepts of Justification and Excuse for Both State and Individual

Meyer, R. V., Maxwell, M. D. M. — Mon, 27 Jul 2009 06:56:23 PDT

One can draw a parallel between the restrictions states place on their soldiers’ use of force and the manner in which the United Nations restricts a state's use of force under Article 2(4) of the Charter. This parallel is useful in showing how both the ‘sovereigns’ limitations on the use of force are, in turn, limited by rule of law principles of natural justice that go beyond self-defence and into the realm of the defence of duress, necessity and coercion, giving rise to a justification or an excuse. The United Nations' absolute restriction on the use of force, therefore, should be limited by more than just the self-defence provision of Article 51 and would potentially allow unilateral humanitarian intervention in extreme circumstances. The US military courts, in dicta, have implied a balancing test in which the order to not use force can be trumped by the imminence and severity of the threat to the innocent; therefore, continued obedience would no longer be mandated. This conclusion, as highlighted by George Fletcher and Jens Ohlin in their book, Defending Humanity, is rooted in the evolution of both law and philosophy.

Foreword

Bhuta, N. C., Nerlich, V. — Mon, 27 Jul 2009 06:56:23 PDT

National Courts and Genocide: The Kravica Case at the Court of Bosnia and Herzegovina

Strippoli, A. — Mon, 27 Jul 2009 06:56:23 PDT

This article comments on the recent Kravica judgment of the Court of Bosnia and Herzegovina, which relates to the mass execution of over 1,000 Bosniaks after the fall of Srebrenica. The judgment relies extensively on the case law of the ad hoc tribunals, at times contributing towards its development. The Court dismissed JCE liability, holding that the accused were mere tools implementing the common plan. It convicted six foot soldiers for co-perpetrating genocide, developing an original test to infer their genocidal intent. Furthermore, it convicted their commander for genocide on the basis of command responsibility, taking a questionable stance regarding his mens rea. The Court declined to state wether the law requires a commander to be simply aware of his subordinate's specific intent, or to share that intent. This approach was justified on the assertion that the higher test was in any event met in this case. In an effort to prove it was so, the Court engaged in an unconvincing reasoning purporting to infer genocidal intent from the commander's omissive conduct.

The Italian Court of Cassation Asserts Civil Jurisdiction over Germany in a Criminal Case Relating to the Second World War: The Civitella Case

Ciampi, A. — Mon, 27 Jul 2009 06:56:23 PDT

On 21 October 2008, the Italian Court of Cassation affirmed that Italian courts have jurisdiction over claims for compensation against the Federal Republic of Germany (FRG) brought by victims of war crimes and crimes against humanity committed during Germany's occupation of Italy in the Second World War (WWII). A former member of the Hermann Göring Division, Max Josef Milde, has been convicted and sentenced to life imprisonment in the same proceedings. The Court took the view that when a conflict arises between the customary rule of state immunity from foreign courts and the principle of protection of fundamental human rights, the latter must prevail. According to the Court, this includes the victims’ judicially enforceable right to seek reparation. The author discusses the specificities of the Civitella case and the implications of the Court's reasoning for this, as for future cases. She argues that, notwithstanding the Italian Government's initial reaction and the institution by Germany of proceedings before the International Court of Justice (ICJ), the Court's ruling represents a welcome development.

The Targeted Killing of Salah Shehadeh: From Gaza to Madrid

Weill, S. — Mon, 27 Jul 2009 06:56:23 PDT

On 22 July 2002, an Israeli Air Force plane dropped a one-ton bomb on a densely populated residential neighbourhood in Gaza City. The military objective of this operation was to kill Hamas' military leader in the Gaza Strip, Salah Shehadeh. More than six years later, in Madrid on 29 January 2009, Judge Fernando Andreu Merelles opened a criminal investigation against seven Israeli political and military officials for allegedly committing a war crime — and possibly a crime against humanity — in that operation. The basis of jurisdiction claimed was universal jurisdiction. As the same facts have been reviewed by different legal authorities in Israel, this case provides us with some considerations on the extent and applicability of the principle of subsidiarity.

Unravelling the Extraterritorial Riddle: An Analysis of R (Hassan) v. Secretary of State for Defence

King, H. — Mon, 27 Jul 2009 06:56:23 PDT

The European Convention on Human Rights imposes an obligation on contracting states to secure the rights of persons within their ‘jurisdiction’. Yet, the meaning of ‘jurisdiction’ is contested, with the result that the extent of states’ extraterritorial obligations is unclear. R (Hassan) v. Secretary of State for Defence is the latest in a series of English cases to examine the obligations of the British forces in Iraq. This comment critically assesses the High Court's reasoning, as well as the House of Lords’ decision in Al-Skeini on which it relies, and in so doing proposes a more nuanced understanding of ‘jurisdiction’.

Eichmann: Is Evil So Banal?

Cassese, A., Bach, G. — Mon, 27 Jul 2009 06:56:23 PDT

Editorial

Jessberger, F. — Tue, 07 Jul 2009 04:58:30 PDT

How Do States Join the International Criminal Court?: The Implementation of the Rome Statute in Japan

Meierhenrich, J., Ko, K. — Tue, 07 Jul 2009 04:58:30 PDT

Against the background of Japan's long-anticipated implementation of the Rome Statute of the International Criminal Court in 2007, this article analyses the legislative implications of treaty accession. One of the causes of the accession delay in Japan — nearly 10 years passed between the government's participation in the adoption of the Rome Statute and its implementation thereof — was the challenge of aligning the conflicting imperatives of domestic and international law. This article delineates these conflicting imperatives, reconstructing the deliberations over procedural and substantive law that attended the drafting of implementing legislation in Japan. We demonstrate in our analysis that unlike most other countries who joined the ICC community as States Parties, Japan had to overcome particularly formidable constitutional and legislative hurdles before membership in the permanent international court could become a possibility. Among other things, the implementation of the Rome Statute required a renegotiation, in key respects, of the fundamental principle upon which Japan's post-World War II foreign and domestic policy rested, namely the renunciation of war and the culture of antimilitarism that is enshrined in Article 9 of the Constitution of Japan.

Shaping the Contours of Domestic Justice: The International Criminal Court and an Admissibility Challenge in the Uganda Situation

Burke-White, W. W., Kaplan, S. — Tue, 07 Jul 2009 04:58:30 PDT

The ICC Pre-Trial Chamber II (PTC) has recently initiated an inquiry into the admissibility of the case against the leadership of the Lords Resistance Army (LRA) in the Uganda situation. In an effort to resolve the conflict in northern Uganda, the government signed a preliminary agreement in 2006 with the LRA providing for domestic prosecution of the indictees. This article examines the issues regarding both the nature of challenging admissibility generally and particular issues that arise from such challenges in the context of state self-referrals. The article proposes three different visions of admissibility that may arise in an admissibility challenge and applies them to the current PTC examination as well as a possible challenge by Uganda. The article suggests a framework for analysis and considers the role of the Court in shaping the contours of acceptable domestic justice.

Foreword

Zappala, S. — Tue, 07 Jul 2009 04:58:30 PDT

The Definitions of International Crimes in the Al Bashir Arrest Warrant Decision

Cryer, R. — Tue, 07 Jul 2009 04:58:30 PDT

This piece concentrates on the way in which the Pre-Trial Chamber in the Al Bashir Arrest Warrant Decision approached the definitions of international crimes. It is critical of the way in which the Pre-Trial Chamber appears to have attempted to practically introduce a requirement that rebels hold territory into the definition of non-international armed conflicts in Article 8(2)(f) of the Rome Statute. It also expresses concern about the way in which the Chamber phrased itself with respect to the interplay of humanitarian law and the law of crimes against humanity, but provides a way of reading the Decision in a manner that renders the two bodies of law coherent. This contribution to the debate then turns to the way in which the Chamber approached the crime of genocide, and expresses some concern about the relationship the Chamber asserted between the Elements of Crimes and the Rome Statute, as well as the way they (mis)interpreted the contextual element of genocide. It also laments that the Chamber did not discuss more completely the vexed matter of group membership in Darfur, and whilst supporting the Majority's approach to the mental element of genocide, regrets that the Chamber did not do enough to promote a coherent law on genocide applicable both within the Rome Statute and beyond.

The Crime of Genocide and Contextual Elements: A Comment on the ICC Pre-Trial Chamber's Decision in the Al Bashir Case

Kress, C. — Tue, 07 Jul 2009 04:58:30 PDT

The Pre-Trial Chamber correctly held that the formulation of the last (common) element in the Elements of Crimes on Genocide does not purport to amend the crime's definition but provides for a welcome clarification. The contextual elements should not, however, be seen as an addition to the crime's actus reus but as an objective point of reference for the determination of a realistic genocidal intent. The Chamber's requirement of a ‘concrete threat’ is unfortunately worded because it suggests an unduly stringent contextual threshold.

The Continuous Quest for Proper Modes of Criminal Responsibility

van der Wilt, H. G. — Tue, 07 Jul 2009 04:58:30 PDT

The author discusses the recent decision of the ICC Pre-Trial Chamber to issue an arrest warrant against President Al Bashir from the viewpoint of the choice of the alleged mode of responsibility. In emphasizing the need and the difficulty of choosing the most proper concept of criminal responsibility, he explains how international criminal law has oscillated from the notion of joint criminal enterprise to the concept of co-perpetration and other forms of participation. In particular, he illustrates how in the first decisions in the ICC system (Lubanga, Katanga and Chui) the notions of co-perpetration and perpetration-by-means have been at the core of the case law. In this regard, he analyses both the majority opinion and the dissent of Judge Usacka in Al Bashir, highlighting the strong influence of German legal thought on the ICC Statute and on recent ICC case law.

Does President Al Bashir Enjoy Immunity from Arrest?

Gaeta, P. — Tue, 07 Jul 2009 04:58:30 PDT

This article discusses whether the International Criminal Court (ICC) has lawfully issued and circulated an arrest warrant against the incumbent head of state of Sudan, Omar al Bashir, and whether its request to the states parties to the Rome Statute to arrest and surrender him is in conformity with the provisions of the Statute. In this article, the argument is made that the rules of customary international law on personal immunities of incumbent heads of state do not apply in the case of the exercise of criminal jurisdiction by an international criminal court; therefore they do not bar the exercise of the jurisdiction of the ICC with respect to an incumbent head of state, even if this individual comes from a state not party to the Rome Statute, like Sudan. However, it is one thing to assert that an international criminal court can ‘lawfully’ issue and circulate an arrest warrant against individuals entitled to personal immunity before national courts, and quite another to say that states can ‘lawfully’ disregard the personal immunity of these same individuals, and surrender them to the requesting international court. This article endeavours to demonstrate that while the ICC arrest warrant is a lawful coercive act against an incumbent head of state, the ICC request to states parties to surrender President Al Bashir is contrary to Article 98(1) of the Rome Statute and it is an act ultra vires. States parties are therefore not bound to comply with this request.

The Legal Nature of Security Council Referrals to the ICC and its Impact on Al Bashir's Immunities

Akande, D. — Tue, 07 Jul 2009 04:58:30 PDT

This article considers whether states are obliged or permitted to arrest Sudanese President Omar al Bashir pursuant to a warrant of arrest issued by the International Criminal Court (ICC). The article considers the extent to which the ICC Statute removes immunities which would ordinarily be available to state officials. It is argued that the removal of the immunity by Article 27 of the ICC Statute applies also at the national level, when national authorities act in support of the ICC. The article examines the application of Article 98 of the ICC Statute and considers the legal nature of Security Council referrals to the ICC. It is argued that the effect of the Security Council referral is that Sudan is to be regarded as bound by the ICC Statute and thus by Article 27. Given that the Statute operates in this case not as a treaty but by virtue of being a Security Council resolution, the removal of immunity operates even with regard to non-parties. However, since any (implicit) removal of immunity by the Security Council would conflict with customary international law and treaty rules according immunity to a serving head of state, the article considers the application of Article 103 of the United Nations (UN) Charter in this case.

Troubled Indictments at the Special Court for Sierra Leone: The Pleading of Joint Criminal Enterprise and Sex-based Crimes

Rose, C. — Tue, 07 Jul 2009 04:58:30 PDT

This article argues that the indictments at the Special Court for Sierra Leone have pleaded joint criminal enterprise and sex-based crimes in ways that both threaten the rights of the accused and weaken the Prosecution's cases against them. While the Taylor Indictment neglects to outline the purpose of the joint criminal enterprise in which the accused allegedly took part, the Prosecution's recent arguments in this respect have further confused the matter. In addition, the RUF and AFRC indictments alleged forced marriage without clearly indicating what crime such conduct would violate. Although the Appeals Chamber provided guidance on the issues of joint criminal enterprise and forced marriage in its recent AFRC Appeal Judgment, its pronouncements may be of limited use or applicability to the ongoing Taylor case.

On the Enforcement of Sentences Imposed by International Courts: Challenges Faced by the Special Court for Sierra Leone

Mulgrew, R. — Tue, 07 Jul 2009 04:58:30 PDT

With less than two years before the proposed closure of the Special Court for Sierra Leone (SCSL) and its Detention Facility, it is still unclear where individuals sentenced by the SCSL will serve their sentences. Drawing on qualitative empirical research, the author analyses the statutory options for the implementation of the sentences of imprisonment imposed by the SCSL. She also makes recommendations for the development of international penal policy and suggests structural reforms for international enforcement systems.

Current Developments at the Ad Hoc International Criminal Tribunals

Margetts, K., Janisiewicz, N. — Tue, 07 Jul 2009 04:58:30 PDT

Jo Stigen, The Relationship between the International Criminal Court and National Jurisdictions: The Principle of Complementarity

Hein, D. P. — Tue, 07 Jul 2009 04:58:30 PDT

David A. Blumenthal and Timothy L.H. McCormack (eds), The Legacy of Nuremberg: Civilising Influence or Institutionalised Vengeance?

Batros, B. — Tue, 07 Jul 2009 04:58:30 PDT

Jonathan Doak, Victims' Rights, Human Rights and Criminal Justice: Reconceiving the Role of Third Parties

Acevedo, J. P. P.-L. — Tue, 07 Jul 2009 04:58:30 PDT

Karin Arts and Vesselin Popovski (eds), International Criminal Accountability and the Rights of Children

McBride, J. — Tue, 07 Jul 2009 04:58:30 PDT