New technologies have the potential to both advance accountability for international crimes and to aid in their perpetration. Most of the existing literature to date focuses on the former, such as how digital evidence can be used in international criminal law (ICL) proceedings, or in the case of the latter, has taken a mainly rights-based approach (such as how technology can infringe upon rights to privacy or freedom of expression). This article answers the understudied question of how technology can serve as the vehicle by which certain international crimes are committed or lead to new offences, and how current ICL frameworks may be able to accommodate these ‘online harms’ to ensure that the law recognizes the full scope of harms caused to victims, who currently may not be able to access redress through the international criminal justice system. It identifies three examples of online harm that have a foreseeable nexus to the perpetration of international crimes, including hate speech and disinformation, sharing footage of crimes to the internet, and online sexual violence. The article evaluates the online harms alongside similar harms that have been encompassed by core ICL crimes, including genocide, crimes against humanity, and war crimes, to assess how online harms might fit into ICL frameworks (e.g. as an aggravating factor at sentencing, a new mode of commission of an existing crime, or a new crime). It concludes that some types of online harm may be more feasible to account for than others, and identifies where the existing ICL architecture falls short, which is important for providing a basis for future research as to how to best include novel online harms under ICL. Finally, the article emphasizes that as technology will only continue to develop and serve as a vehicle for an increasing array of harms, finding ways to account for online harm and bring redress to victims should be an issue at the forefront of ICL.
{"title":"Is International Criminal Law Ready to Accommodate Online Harm?","authors":"Sarah Zarmsky","doi":"10.1093/jicj/mqae013","DOIUrl":"https://doi.org/10.1093/jicj/mqae013","url":null,"abstract":"New technologies have the potential to both advance accountability for international crimes and to aid in their perpetration. Most of the existing literature to date focuses on the former, such as how digital evidence can be used in international criminal law (ICL) proceedings, or in the case of the latter, has taken a mainly rights-based approach (such as how technology can infringe upon rights to privacy or freedom of expression). This article answers the understudied question of how technology can serve as the vehicle by which certain international crimes are committed or lead to new offences, and how current ICL frameworks may be able to accommodate these ‘online harms’ to ensure that the law recognizes the full scope of harms caused to victims, who currently may not be able to access redress through the international criminal justice system. It identifies three examples of online harm that have a foreseeable nexus to the perpetration of international crimes, including hate speech and disinformation, sharing footage of crimes to the internet, and online sexual violence. The article evaluates the online harms alongside similar harms that have been encompassed by core ICL crimes, including genocide, crimes against humanity, and war crimes, to assess how online harms might fit into ICL frameworks (e.g. as an aggravating factor at sentencing, a new mode of commission of an existing crime, or a new crime). It concludes that some types of online harm may be more feasible to account for than others, and identifies where the existing ICL architecture falls short, which is important for providing a basis for future research as to how to best include novel online harms under ICL. Finally, the article emphasizes that as technology will only continue to develop and serve as a vehicle for an increasing array of harms, finding ways to account for online harm and bring redress to victims should be an issue at the forefront of ICL.","PeriodicalId":46732,"journal":{"name":"Journal of International Criminal Justice","volume":null,"pages":null},"PeriodicalIF":0.9,"publicationDate":"2024-05-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140930817","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article reviews the evolution of the role of civil society documentation efforts in international justice proceedings since 2013 circa. It is written from my personal perspective by virtue of my involvement in a series of initiatives aimed to strengthen civil society’s (as well as other international justice actors’) documentation efforts through the collection of standards and best practices, which the essay also discusses. In particular, it reviews the process and challenges of setting forth the first comprehensive guidance and set of best practices for civil society documentation with the Public International Law and Policy Group’s ‘Handbook on Civil Society Documentation of Serious Human Rights Violations’. It argues that civil society documentation efforts have undergone a revolution within the field: from the margins to the very heart of international judicial proceedings upholding accountability for international crimes. This revolution was, in part, rendered possible by a changing documentation landscape and the proliferation of documentation resources and capabilities now readily available to the civil society. After reviewing the current state of play with respect to documentary efforts and documentation best practices, which I situate within the context of a broader evolution of the international justice ‘ecosystem’, the article addresses some ongoing challenges in documentation and areas that would benefit of further strengthening in the future.
{"title":"The Ten-Year Revolution","authors":"Federica D’Alessandra","doi":"10.1093/jicj/mqae011","DOIUrl":"https://doi.org/10.1093/jicj/mqae011","url":null,"abstract":"This article reviews the evolution of the role of civil society documentation efforts in international justice proceedings since 2013 circa. It is written from my personal perspective by virtue of my involvement in a series of initiatives aimed to strengthen civil society’s (as well as other international justice actors’) documentation efforts through the collection of standards and best practices, which the essay also discusses. In particular, it reviews the process and challenges of setting forth the first comprehensive guidance and set of best practices for civil society documentation with the Public International Law and Policy Group’s ‘Handbook on Civil Society Documentation of Serious Human Rights Violations’. It argues that civil society documentation efforts have undergone a revolution within the field: from the margins to the very heart of international judicial proceedings upholding accountability for international crimes. This revolution was, in part, rendered possible by a changing documentation landscape and the proliferation of documentation resources and capabilities now readily available to the civil society. After reviewing the current state of play with respect to documentary efforts and documentation best practices, which I situate within the context of a broader evolution of the international justice ‘ecosystem’, the article addresses some ongoing challenges in documentation and areas that would benefit of further strengthening in the future.","PeriodicalId":46732,"journal":{"name":"Journal of International Criminal Justice","volume":null,"pages":null},"PeriodicalIF":0.9,"publicationDate":"2024-05-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140942324","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"On Regulating Means of Warfare","authors":"Paola Gaeta, Marta Bo","doi":"10.1093/jicj/mqad054","DOIUrl":"https://doi.org/10.1093/jicj/mqad054","url":null,"abstract":"","PeriodicalId":46732,"journal":{"name":"Journal of International Criminal Justice","volume":null,"pages":null},"PeriodicalIF":0.9,"publicationDate":"2024-02-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140419203","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This essay examines the theories according to which ‘actions’ carried out by autonomous weapon systems enabled by strong artificial intelligence in detecting, tracking and engaging with the target (‘intelligent AWS’) may be seen as an ‘act’ of the weapon system for the purpose of legal responsibility. The essay focuses on the material act required for the commission of war crimes related to prohibited attacks in warfare. After briefly presenting the various conceptions of the act as an essential component of the material element of criminal offences, it argues that the material act of war crimes related to prohibited attacks is invariably carried out by the user of an ‘intelligent AWS’. This also holds true in the case of so-called ‘unintended engagements’ during the course of a military attack carried out with an intelligent AWS. The essay moves on to examine the question of whether, in the case of the use of intelligent AWS by the armed forces of a state, the ‘actions’ of intelligent AWS — including those not intended by the user — are attributable to the state. It demonstrates that under a correct understanding of the concept of ‘act of state’ for the purpose of attributing state responsibility under international law, such attribution is unquestionable. It underlines that, suggesting otherwise, would bring to a breaking point the possibility of establishing violations by states of international humanitarian law in the conduct of hostilities.
{"title":"Who Acts When Autonomous Weapons Strike?","authors":"Paola Gaeta","doi":"10.1093/jicj/mqae001","DOIUrl":"https://doi.org/10.1093/jicj/mqae001","url":null,"abstract":"This essay examines the theories according to which ‘actions’ carried out by autonomous weapon systems enabled by strong artificial intelligence in detecting, tracking and engaging with the target (‘intelligent AWS’) may be seen as an ‘act’ of the weapon system for the purpose of legal responsibility. The essay focuses on the material act required for the commission of war crimes related to prohibited attacks in warfare. After briefly presenting the various conceptions of the act as an essential component of the material element of criminal offences, it argues that the material act of war crimes related to prohibited attacks is invariably carried out by the user of an ‘intelligent AWS’. This also holds true in the case of so-called ‘unintended engagements’ during the course of a military attack carried out with an intelligent AWS. The essay moves on to examine the question of whether, in the case of the use of intelligent AWS by the armed forces of a state, the ‘actions’ of intelligent AWS — including those not intended by the user — are attributable to the state. It demonstrates that under a correct understanding of the concept of ‘act of state’ for the purpose of attributing state responsibility under international law, such attribution is unquestionable. It underlines that, suggesting otherwise, would bring to a breaking point the possibility of establishing violations by states of international humanitarian law in the conduct of hostilities.","PeriodicalId":46732,"journal":{"name":"Journal of International Criminal Justice","volume":null,"pages":null},"PeriodicalIF":0.9,"publicationDate":"2024-01-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139644949","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In many cases, and, in particular, in cases concerning crimes committed in the Syrian conflict, an overlap can be identified between international criminal law and counter-terrorism criminal law. The reason for this is the approximative and normative intertwining of these two areas in German criminal law. By way of counter-terrorism criminal law, Germany implemented an organizational crime of membership in an organization whose objective or activities are directed towards the commission of, inter alia, genocide, crimes against humanity, and war crimes, as well as murder. As a consequence, non-state armed groups active in a non-international armed conflict are considered terrorist groups. While this allows for cumulative prosecution, charging, and conviction, in this article an argument will be made that the increasing intertwining of German international criminal law and counter-terrorism criminal law has a problematic side. It blurs the historical, conceptual, and normative differences between the two areas of criminal law. Eventually, this further deepens the asymmetry in the prosecution of state and non-state actors for international crimes.
{"title":"On the Relationship Between German International Criminal Law and Counter-terrorism Criminal Law","authors":"J. Geneuss","doi":"10.1093/jicj/mqad051","DOIUrl":"https://doi.org/10.1093/jicj/mqad051","url":null,"abstract":"\u0000 In many cases, and, in particular, in cases concerning crimes committed in the Syrian conflict, an overlap can be identified between international criminal law and counter-terrorism criminal law. The reason for this is the approximative and normative intertwining of these two areas in German criminal law. By way of counter-terrorism criminal law, Germany implemented an organizational crime of membership in an organization whose objective or activities are directed towards the commission of, inter alia, genocide, crimes against humanity, and war crimes, as well as murder. As a consequence, non-state armed groups active in a non-international armed conflict are considered terrorist groups. While this allows for cumulative prosecution, charging, and conviction, in this article an argument will be made that the increasing intertwining of German international criminal law and counter-terrorism criminal law has a problematic side. It blurs the historical, conceptual, and normative differences between the two areas of criminal law. Eventually, this further deepens the asymmetry in the prosecution of state and non-state actors for international crimes.","PeriodicalId":46732,"journal":{"name":"Journal of International Criminal Justice","volume":null,"pages":null},"PeriodicalIF":0.9,"publicationDate":"2024-01-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139442454","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Syrian State Torture on Trial","authors":"Fin-Jasper Langmack","doi":"10.1093/jicj/mqad047","DOIUrl":"https://doi.org/10.1093/jicj/mqad047","url":null,"abstract":"","PeriodicalId":46732,"journal":{"name":"Journal of International Criminal Justice","volume":null,"pages":null},"PeriodicalIF":0.9,"publicationDate":"2024-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139452351","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article suggests an account in the language of criminal law that merits the language for criminal accountability over the language of human rights, as a form of accountability, when prosecution is not possible. Calling for the prosecution of those most responsible for international crimes seems to be feasible after the war has ended, or at least when there is a vision for a political transition, but the war in Syria is ongoing and a vision for political transition remains elusive. The Syrian conflict has produced almost all kinds of heinous crimes, yet there is no clear political will to hold the alleged perpetrators of atrocity crimes accountable. At the same time, calls for criminal accountability in Syria, and discourse to achieve international criminal justice are taking place before the civil war ends. This article relies on the expressive theory of punishment to assess the rationales of calls for criminal accountability during the ongoing conflict in Syria. Out of many rationales, the article notes that calls for criminal accountability open the possibility of punishment and send a message of condemnation to perpetrators as well as a message of acknowledgment to victims. Furthermore, using the language of criminal accountability as a basis for the calls is stronger than using the language of human rights. The article discusses the problem of standing to call those responsible for international crimes to account and proposes that our shared humanity provides the authority for such calls while also pointing out limitations of this approach.
{"title":"Should We Call for Criminal Accountability During Ongoing Conflicts?","authors":"Ghuna Bdiwi","doi":"10.1093/jicj/mqac037","DOIUrl":"https://doi.org/10.1093/jicj/mqac037","url":null,"abstract":"\u0000 This article suggests an account in the language of criminal law that merits the language for criminal accountability over the language of human rights, as a form of accountability, when prosecution is not possible. Calling for the prosecution of those most responsible for international crimes seems to be feasible after the war has ended, or at least when there is a vision for a political transition, but the war in Syria is ongoing and a vision for political transition remains elusive. The Syrian conflict has produced almost all kinds of heinous crimes, yet there is no clear political will to hold the alleged perpetrators of atrocity crimes accountable. At the same time, calls for criminal accountability in Syria, and discourse to achieve international criminal justice are taking place before the civil war ends. This article relies on the expressive theory of punishment to assess the rationales of calls for criminal accountability during the ongoing conflict in Syria. Out of many rationales, the article notes that calls for criminal accountability open the possibility of punishment and send a message of condemnation to perpetrators as well as a message of acknowledgment to victims. Furthermore, using the language of criminal accountability as a basis for the calls is stronger than using the language of human rights. The article discusses the problem of standing to call those responsible for international crimes to account and proposes that our shared humanity provides the authority for such calls while also pointing out limitations of this approach.","PeriodicalId":46732,"journal":{"name":"Journal of International Criminal Justice","volume":null,"pages":null},"PeriodicalIF":0.9,"publicationDate":"2023-12-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138954871","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In seven trials to date, the International Criminal Court (ICC) has relied on the expertise of historians, anthropologists and political scientists to provide historical and political context. Overview expert witnesses help the judges appreciate the evidence of charged crimes in a wider context of conflict and violence. In this article, I consider the fundamental purpose and factors militating in favour of engaging an overview expert. In addition, I first review and then reflect on the current use of overview expert evidence — as a subset of expert evidence — in ICC trials, to better understand its legal and practical utility in international crimes cases. I focus on four aspects: relevance in criminal proceedings, timing of engaging an expert, selection of experts and impact on the fairness of proceedings.
{"title":"Context Matters","authors":"Yulia Nuzban","doi":"10.1093/jicj/mqad049","DOIUrl":"https://doi.org/10.1093/jicj/mqad049","url":null,"abstract":"In seven trials to date, the International Criminal Court (ICC) has relied on the expertise of historians, anthropologists and political scientists to provide historical and political context. Overview expert witnesses help the judges appreciate the evidence of charged crimes in a wider context of conflict and violence. In this article, I consider the fundamental purpose and factors militating in favour of engaging an overview expert. In addition, I first review and then reflect on the current use of overview expert evidence — as a subset of expert evidence — in ICC trials, to better understand its legal and practical utility in international crimes cases. I focus on four aspects: relevance in criminal proceedings, timing of engaging an expert, selection of experts and impact on the fairness of proceedings.","PeriodicalId":46732,"journal":{"name":"Journal of International Criminal Justice","volume":null,"pages":null},"PeriodicalIF":0.9,"publicationDate":"2023-12-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138536034","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Correction to: Crime of Aggression against Ukraine: The Role of Regional Customary Law","authors":"","doi":"10.1093/jicj/mqad045","DOIUrl":"https://doi.org/10.1093/jicj/mqad045","url":null,"abstract":"","PeriodicalId":46732,"journal":{"name":"Journal of International Criminal Justice","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-11-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135087250","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Abstract This article explores the use of remorse as a source of leniency at international criminal tribunals. It outlines the difficulties that beset international tribunals’ attempts to develop a clear, consistent conceptualization of the idea of remorse. Using a range of perspectives, it offers ways forward in terms of both comprehending remorse, as experienced by perpetrators of international crimes, and incorporating remorse into the present international criminal legal framework. In particular, it analyses how sincere expressions of remorse within the international criminal courtroom can signal and produce transformative effects for different players operating in the terrain of international criminal justice.
{"title":"‘Is It Too Late Now to Say Sorry?’","authors":"Radhika Kapoor","doi":"10.1093/jicj/mqad046","DOIUrl":"https://doi.org/10.1093/jicj/mqad046","url":null,"abstract":"Abstract This article explores the use of remorse as a source of leniency at international criminal tribunals. It outlines the difficulties that beset international tribunals’ attempts to develop a clear, consistent conceptualization of the idea of remorse. Using a range of perspectives, it offers ways forward in terms of both comprehending remorse, as experienced by perpetrators of international crimes, and incorporating remorse into the present international criminal legal framework. In particular, it analyses how sincere expressions of remorse within the international criminal courtroom can signal and produce transformative effects for different players operating in the terrain of international criminal justice.","PeriodicalId":46732,"journal":{"name":"Journal of International Criminal Justice","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-11-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135975786","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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