Abstract On 31 May 2023, the Appeals Chamber of the International Residual Mechanism for Criminal Tribunals (IRMCT) delivered its judgment in Stanišić and Simatović, marking the conclusion of the first full retrial in the history of international criminal law and providing occasion to reflect on how retrials before the International Criminal Court and other international criminal tribunals ought to be conducted. The focus of this article pertains to the Trial Chamber’s approach to the admissibility of new prosecutorial evidence during the course of the retrial, and specifically, its decision to exclude all new prosecutorial evidence from the scope of the retrial, unless exceptional circumstances justified its admission. This article questions whether the adoption of this exclusionary rule was a valid exercise of the Trial Chamber’s discretion and, from a normative standpoint, whether such a decision was and remains a desirable approach to the admissibility of prosecutorial evidence in international criminal retrials. This article argues that despite the strong and persistent objections raised by the prosecution during the Stanišić and Simatović retrial, the exclusionary rule constituted a valid exercise of the Trial Chamber’s powers and could serve as a blueprint for the admissibility of new prosecutorial evidence in potential future retrials.
{"title":"The Admission of New Prosecutorial Evidence in International Criminal Retrials","authors":"Adaena Sinclair-Blakemore","doi":"10.1093/jicj/mqad042","DOIUrl":"https://doi.org/10.1093/jicj/mqad042","url":null,"abstract":"Abstract On 31 May 2023, the Appeals Chamber of the International Residual Mechanism for Criminal Tribunals (IRMCT) delivered its judgment in Stanišić and Simatović, marking the conclusion of the first full retrial in the history of international criminal law and providing occasion to reflect on how retrials before the International Criminal Court and other international criminal tribunals ought to be conducted. The focus of this article pertains to the Trial Chamber’s approach to the admissibility of new prosecutorial evidence during the course of the retrial, and specifically, its decision to exclude all new prosecutorial evidence from the scope of the retrial, unless exceptional circumstances justified its admission. This article questions whether the adoption of this exclusionary rule was a valid exercise of the Trial Chamber’s discretion and, from a normative standpoint, whether such a decision was and remains a desirable approach to the admissibility of prosecutorial evidence in international criminal retrials. This article argues that despite the strong and persistent objections raised by the prosecution during the Stanišić and Simatović retrial, the exclusionary rule constituted a valid exercise of the Trial Chamber’s powers and could serve as a blueprint for the admissibility of new prosecutorial evidence in potential future retrials.","PeriodicalId":46732,"journal":{"name":"Journal of International Criminal Justice","volume":"18 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-10-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135617572","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 An error in the operation of an autonomous weapon system (AWS) results in civilians or civilian objects being attacked. In such situations, have civilians or civilian objects been ‘made the object of attack’, such that there is a breach of the rule prohibiting attacks against civilians or civilian objects? This question — which is important because of the high probability of such errors — forms the subject of this article. It argues that the rule prohibiting attacks against civilians or civilian objects requires due diligence — contextually reasonable efforts — across the targeting process, to ensure that civilians or civilian objects are not attacked. This implies that AWS errors breach this rule if the errors are unreasonable, i.e., if they originate in a failure of due diligence at any point in the process of development and deployment of AWS. Moreover, the risk-sensitivity of due diligence obligations suggests that the higher degree of risk involved in the development and use of an AWS leads to a corresponding increase in what constitutes contextually reasonable efforts to ensure that civilians or civilian objects are not attacked.
{"title":"Autonomous Weapon Systems, Errors and Breaches of International Humanitarian Law","authors":"Abhimanyu George Jain","doi":"10.1093/jicj/mqad043","DOIUrl":"https://doi.org/10.1093/jicj/mqad043","url":null,"abstract":"Abstract An error in the operation of an autonomous weapon system (AWS) results in civilians or civilian objects being attacked. In such situations, have civilians or civilian objects been ‘made the object of attack’, such that there is a breach of the rule prohibiting attacks against civilians or civilian objects? This question — which is important because of the high probability of such errors — forms the subject of this article. It argues that the rule prohibiting attacks against civilians or civilian objects requires due diligence — contextually reasonable efforts — across the targeting process, to ensure that civilians or civilian objects are not attacked. This implies that AWS errors breach this rule if the errors are unreasonable, i.e., if they originate in a failure of due diligence at any point in the process of development and deployment of AWS. Moreover, the risk-sensitivity of due diligence obligations suggests that the higher degree of risk involved in the development and use of an AWS leads to a corresponding increase in what constitutes contextually reasonable efforts to ensure that civilians or civilian objects are not attacked.","PeriodicalId":46732,"journal":{"name":"Journal of International Criminal Justice","volume":"17 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-10-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135617569","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 If autonomous weapon systems (AWS) cause harm beyond their legitimate military use, e.g., by killing innocent civilians, the question arises as to who can be held responsible. Due to the great number of persons involved in the construction, programming, training, and deploying of AWS, a ‘responsibility gap’ has been diagnosed. As it is neither theoretically nor practically feasible to impose criminal responsibility on AWS themselves, various doctrines of international criminal law (ICL) have been suggested with a view toward making individual persons responsible for the AWS’s malfunctioning. The mens rea requirements of ICL are, however, likely to severely limit individual criminal responsibility. The author suggests that the emphasis should not be on bending legal doctrine in a futile effort to close the ‘responsibility gap’ but on establishing specific obligations to train, test, and continually observe the operation of AWS in order to avoid malfunctioning.
{"title":"Convicting Autonomous Weapons?","authors":"Thomas Weigend","doi":"10.1093/jicj/mqad037","DOIUrl":"https://doi.org/10.1093/jicj/mqad037","url":null,"abstract":"Abstract If autonomous weapon systems (AWS) cause harm beyond their legitimate military use, e.g., by killing innocent civilians, the question arises as to who can be held responsible. Due to the great number of persons involved in the construction, programming, training, and deploying of AWS, a ‘responsibility gap’ has been diagnosed. As it is neither theoretically nor practically feasible to impose criminal responsibility on AWS themselves, various doctrines of international criminal law (ICL) have been suggested with a view toward making individual persons responsible for the AWS’s malfunctioning. The mens rea requirements of ICL are, however, likely to severely limit individual criminal responsibility. The author suggests that the emphasis should not be on bending legal doctrine in a futile effort to close the ‘responsibility gap’ but on establishing specific obligations to train, test, and continually observe the operation of AWS in order to avoid malfunctioning.","PeriodicalId":46732,"journal":{"name":"Journal of International Criminal Justice","volume":"30 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-10-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"136062635","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 International criminal courts and tribunals have missed opportunities to recognize gendered experiences, including when addressing crimes without a clearly sexual component. The International Criminal Court (ICC) has an opportunity to take a different approach when considering the crime against humanity of deportation in its Bangladesh/Myanmar proceedings. While the prevalence of sexual and other gendered violence, including rape and killings, in Myanmar and perpetrated against the Rohingya is well-documented, and will likely form an important aspect of investigations, there is also scope to explore the gendered nature of displacement. This article reviews the intersection of international criminal law with broader critiques of international law concerned with displacement. It then investigates how ICC Chambers could take a gender-competent approach towards the elements of the crime against humanity of deportation and forcible transfer of population in the Bangladesh/Myanmar proceedings, including when examining the concepts of expulsion and coercion, lawful presence and the purpose of the forcible displacement. It proposes a contextual approach to that analysis, informed by gender-inclusive expert evidence, gender-competent investigation practices and thoughtful integration of victims’ representations
{"title":"Gender and Forced Displacement at the International Criminal Court","authors":"Emma Palmer","doi":"10.1093/jicj/mqad036","DOIUrl":"https://doi.org/10.1093/jicj/mqad036","url":null,"abstract":"Abstract International criminal courts and tribunals have missed opportunities to recognize gendered experiences, including when addressing crimes without a clearly sexual component. The International Criminal Court (ICC) has an opportunity to take a different approach when considering the crime against humanity of deportation in its Bangladesh/Myanmar proceedings. While the prevalence of sexual and other gendered violence, including rape and killings, in Myanmar and perpetrated against the Rohingya is well-documented, and will likely form an important aspect of investigations, there is also scope to explore the gendered nature of displacement. This article reviews the intersection of international criminal law with broader critiques of international law concerned with displacement. It then investigates how ICC Chambers could take a gender-competent approach towards the elements of the crime against humanity of deportation and forcible transfer of population in the Bangladesh/Myanmar proceedings, including when examining the concepts of expulsion and coercion, lawful presence and the purpose of the forcible displacement. It proposes a contextual approach to that analysis, informed by gender-inclusive expert evidence, gender-competent investigation practices and thoughtful integration of victims’ representations","PeriodicalId":46732,"journal":{"name":"Journal of International Criminal Justice","volume":"18 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-10-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"136063966","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 In the discourse around prosecution of perpetrators of the crime of aggression against Ukraine, there is a need to consider the impact of Eastern European regional norms, both treaty-based and customary. This concerns both the interpretation of principles of responsibility for the crime of aggression as well as the modes of prosecution thereof. The article argues that, in Eastern Europe, the crime of aggression is a well-established norm of international and national law, and aggression — as a conduct by a state — is defined based on the principle of first use of force, while political, economic and any other justifications in order to avoid responsibility are disallowed. Individual responsibility for the crime of aggression represents a departure from the International Criminal Court’s Rome Statute standard and is instead based on the International Military Tribunal’s Charter, which limits its scope to responsibility for a war of aggression. At the same time, it does not preclude, for example, prosecution of those responsible for the administration of occupied territories. As a consequence, the leadership clause might be understood as broader in comparison to the Rome Statute standards.
{"title":"Crime of Aggression against Ukraine","authors":"Patrycja Grzebyk","doi":"10.1093/jicj/mqad035","DOIUrl":"https://doi.org/10.1093/jicj/mqad035","url":null,"abstract":"Abstract In the discourse around prosecution of perpetrators of the crime of aggression against Ukraine, there is a need to consider the impact of Eastern European regional norms, both treaty-based and customary. This concerns both the interpretation of principles of responsibility for the crime of aggression as well as the modes of prosecution thereof. The article argues that, in Eastern Europe, the crime of aggression is a well-established norm of international and national law, and aggression — as a conduct by a state — is defined based on the principle of first use of force, while political, economic and any other justifications in order to avoid responsibility are disallowed. Individual responsibility for the crime of aggression represents a departure from the International Criminal Court’s Rome Statute standard and is instead based on the International Military Tribunal’s Charter, which limits its scope to responsibility for a war of aggression. At the same time, it does not preclude, for example, prosecution of those responsible for the administration of occupied territories. As a consequence, the leadership clause might be understood as broader in comparison to the Rome Statute standards.","PeriodicalId":46732,"journal":{"name":"Journal of International Criminal Justice","volume":"59 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-10-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135303811","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 On October 2021, Colombia and the Office of the Prosecutor (OTP) of the International Criminal Court (ICC) signed a Cooperation Agreement that closed the preliminary examination opened in 2004. This is the first agreement of its kind. This article analyses the evolution of the OTP’s reasoning in considering whether a state has genuinely administered justice in a transitional context. To do so, it chronologically analyses the Colombian case, which is the first peace process in the world developed entirely under the continued scrutiny of the ICC. Furthermore, the Colombian situation was the ICC’s most extended preliminary examination, influencing in turn, the transitional justice outcomes as well as the position of the OTP. The Cooperation Agreement offers, therefore, an outstanding opportunity to analyse from a practical point of view, debates that have been predominantly theoretical and will have future consequences elsewhere.
{"title":"International Criminal Court Standards in a Context of Transitional Justice","authors":"Carlos Gutiérrez-Rodríguez","doi":"10.1093/jicj/mqad033","DOIUrl":"https://doi.org/10.1093/jicj/mqad033","url":null,"abstract":"Abstract On October 2021, Colombia and the Office of the Prosecutor (OTP) of the International Criminal Court (ICC) signed a Cooperation Agreement that closed the preliminary examination opened in 2004. This is the first agreement of its kind. This article analyses the evolution of the OTP’s reasoning in considering whether a state has genuinely administered justice in a transitional context. To do so, it chronologically analyses the Colombian case, which is the first peace process in the world developed entirely under the continued scrutiny of the ICC. Furthermore, the Colombian situation was the ICC’s most extended preliminary examination, influencing in turn, the transitional justice outcomes as well as the position of the OTP. The Cooperation Agreement offers, therefore, an outstanding opportunity to analyse from a practical point of view, debates that have been predominantly theoretical and will have future consequences elsewhere.","PeriodicalId":46732,"journal":{"name":"Journal of International Criminal Justice","volume":"31 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-09-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135247800","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 examines Australia’s obligation to investigate war crimes in the context of its obligations under the Rome Statute of the International Criminal Court (ICC). This obligation is contrasted with Australia’s investigation of war crimes to date, with a particular focus on the current investigations into alleged war crimes by Australian Defence Forces in Afghanistan. The article then discusses the jurisdiction of the ICC, and the important effect of the principle of complementarity under Article 17 of the Rome Statute. The article concludes by assessing the future of war crimes investigations in Australia, drawing attention to the lessons which can be learned moving forward — both domestically and by other states facing allegations of war crimes committed by their own forces.
{"title":"Australia’s Investigation of Alleged ADF War Crimes in Afghanistan","authors":"Julia Flint","doi":"10.1093/jicj/mqad032","DOIUrl":"https://doi.org/10.1093/jicj/mqad032","url":null,"abstract":"Abstract This article examines Australia’s obligation to investigate war crimes in the context of its obligations under the Rome Statute of the International Criminal Court (ICC). This obligation is contrasted with Australia’s investigation of war crimes to date, with a particular focus on the current investigations into alleged war crimes by Australian Defence Forces in Afghanistan. The article then discusses the jurisdiction of the ICC, and the important effect of the principle of complementarity under Article 17 of the Rome Statute. The article concludes by assessing the future of war crimes investigations in Australia, drawing attention to the lessons which can be learned moving forward — both domestically and by other states facing allegations of war crimes committed by their own forces.","PeriodicalId":46732,"journal":{"name":"Journal of International Criminal Justice","volume":"19 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-09-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135769912","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 With advancing technology, complex decision-making in warfare, including targeting, is increasingly assisted by machines. Although involving humans in decision-making is often seen as a safeguard against machine errors, it does not always prevent them. Machines can make incorrect determinations or delay them when time is critical. In these cases, human operators, influenced by automation bias (excessive trust in machines’ determinations, despite the availability of contradicting or different information from other sources) or complacency (excessive trust in machines’ determinations, leading to reduced vigilance), may fail to recognize machine errors, potentially resulting in conduct amounting to a war crime. Considering the role of automation bias and complacency in the determination of the criminal responsibility of systems’ operators is crucial, especially, for understanding the accountability framework for war crimes involving autonomous weapon systems (AWS). By exploring how automation bias and complacency affect the determination of criminal responsibility for humans who operate AWS, this article offers insights for lawmakers at the national and international levels to understand complexities and effectively shape legislative responses with respect to criminal responsibility. This article also examines automation bias and complacency in psychology, their relevance in military operations employing AWS, and their potential to exonerate human operators from criminal responsibility. It concludes by advocating for legislative, organizational, and technical measures to counteract automation bias and complacency.
{"title":"Exploring the Impact of Automation Bias and Complacency on Individual Criminal Responsibility for War Crimes","authors":"Antonio Coco","doi":"10.1093/jicj/mqad034","DOIUrl":"https://doi.org/10.1093/jicj/mqad034","url":null,"abstract":"Abstract With advancing technology, complex decision-making in warfare, including targeting, is increasingly assisted by machines. Although involving humans in decision-making is often seen as a safeguard against machine errors, it does not always prevent them. Machines can make incorrect determinations or delay them when time is critical. In these cases, human operators, influenced by automation bias (excessive trust in machines’ determinations, despite the availability of contradicting or different information from other sources) or complacency (excessive trust in machines’ determinations, leading to reduced vigilance), may fail to recognize machine errors, potentially resulting in conduct amounting to a war crime. Considering the role of automation bias and complacency in the determination of the criminal responsibility of systems’ operators is crucial, especially, for understanding the accountability framework for war crimes involving autonomous weapon systems (AWS). By exploring how automation bias and complacency affect the determination of criminal responsibility for humans who operate AWS, this article offers insights for lawmakers at the national and international levels to understand complexities and effectively shape legislative responses with respect to criminal responsibility. This article also examines automation bias and complacency in psychology, their relevance in military operations employing AWS, and their potential to exonerate human operators from criminal responsibility. It concludes by advocating for legislative, organizational, and technical measures to counteract automation bias and complacency.","PeriodicalId":46732,"journal":{"name":"Journal of International Criminal Justice","volume":"68 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-09-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"136061621","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 deals with establishing the criminal responsibility, through the model of commission by omission, of autonomous weapon systems (AWS) users in situations where failures to suspend AWS-driven attacks have caused a war crime. The author tackles the question of whether an omission to stop such an AWS may amount to the actus reus of war crimes of unlawful attacks and does so by establishing how the doctrine of commission by omission can be applied on the basis of the grave breaches regime in the First Additional Protocol to the Geneva Conventions and the Rome Statute of the International Criminal Court. In deconstructing the status of commission by omission under both these legal frameworks, this article analyses whether the substantive conditions of commission by omission, namely, the legal duty to act and the capacity to act, are met. The author suggests that ‘human control’, manifested in the ability to supervise, intervene and stop an AWS-driven attack, should be considered a necessary pre-condition for the imputation of criminal responsibility in at least some expected scenarios of AWS use. In the absence of such human control, there would be no accountability for unlawful attacks, including indiscriminate attacks, caused by AWS, which would lead to impunity for such crimes. On the one hand, the attribution of responsibility by omission has, therefore, crucial implications for closing the ‘responsibility gap’ within this context. On the other hand, based on the analysis of ‘control’ as the key principle for criminal responsibility by omission, the author argues that an additional treaty obligation should be adopted to ensure human control over AWS and preserve accountability for potential unlawful attacks.
{"title":"Criminal Responsibility by Omission for Failures to Stop Autonomous Weapon Systems","authors":"Marta Bo","doi":"10.1093/jicj/mqad029","DOIUrl":"https://doi.org/10.1093/jicj/mqad029","url":null,"abstract":"Abstract This article deals with establishing the criminal responsibility, through the model of commission by omission, of autonomous weapon systems (AWS) users in situations where failures to suspend AWS-driven attacks have caused a war crime. The author tackles the question of whether an omission to stop such an AWS may amount to the actus reus of war crimes of unlawful attacks and does so by establishing how the doctrine of commission by omission can be applied on the basis of the grave breaches regime in the First Additional Protocol to the Geneva Conventions and the Rome Statute of the International Criminal Court. In deconstructing the status of commission by omission under both these legal frameworks, this article analyses whether the substantive conditions of commission by omission, namely, the legal duty to act and the capacity to act, are met. The author suggests that ‘human control’, manifested in the ability to supervise, intervene and stop an AWS-driven attack, should be considered a necessary pre-condition for the imputation of criminal responsibility in at least some expected scenarios of AWS use. In the absence of such human control, there would be no accountability for unlawful attacks, including indiscriminate attacks, caused by AWS, which would lead to impunity for such crimes. On the one hand, the attribution of responsibility by omission has, therefore, crucial implications for closing the ‘responsibility gap’ within this context. On the other hand, based on the analysis of ‘control’ as the key principle for criminal responsibility by omission, the author argues that an additional treaty obligation should be adopted to ensure human control over AWS and preserve accountability for potential unlawful attacks.","PeriodicalId":46732,"journal":{"name":"Journal of International Criminal Justice","volume":"138 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-09-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135258397","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 As far back as 1994, Sir Arthur Watts QC, a pre-eminent international jurist of his time, put the matter of head of state immunity for international crimes in these unequivocal terms: ‘It can no longer be doubted that as a matter of general customary international law a Head of State will personally be liable to be called to account if there is sufficient evidence that he authorized or perpetrated such serious international crimes.’ Most senior jurists of Watt’s ilk who opined on the matter came to a similar conclusion. Yet, some concerning recent academic commentary wrongly suggests that there remains doubt around the question. For example, the Advisory Committee on Public International Law (CAVV), an academic thinktank that advises the Dutch government, suggested in its report on the accountability of President Putin that ‘in international legal practice, there is no clear-cut answer to the question of whether there is an exception to functional immunity for international crimes, including the crime of aggression’. This article uses the CAVV recommendation as a case study in certain mistakes and confusions that have long plagued the discourse on the immunity of state officials, especially heads of state, accused or suspected of international crimes.
早在1994年，当时杰出的国际法学家亚瑟·沃茨爵士(Sir Arthur Watts QC)就明确提出了国家元首对国际罪行的豁免问题:“毫无疑问，作为一般习惯国际法的问题，如果有足够的证据表明国家元首本人授权或犯下了这种严重的国际罪行，那么他本人将有责任被追究责任。”大多数与瓦特同级的资深法学家在这个问题上都得出了类似的结论。然而，最近一些有关的学术评论错误地暗示，围绕这个问题仍然存在疑问。例如，向荷兰政府提供咨询意见的学术智库国际公法咨询委员会(CAVV)在其关于普京总统问责制的报告中指出，"在国际法律实践中，对于包括侵略罪在内的国际罪行是否存在职能豁免例外的问题，没有明确的答案"。本文以人权委员会的建议为案例，研究长期困扰国家官员、特别是国家元首、被指控或涉嫌犯有国际罪行的人的豁免问题的某些错误和混淆。
{"title":"International Law Rejects Immunity for International Crimes — Full Stop","authors":"Chile Eboe-Osuji","doi":"10.1093/jicj/mqad028","DOIUrl":"https://doi.org/10.1093/jicj/mqad028","url":null,"abstract":"Abstract As far back as 1994, Sir Arthur Watts QC, a pre-eminent international jurist of his time, put the matter of head of state immunity for international crimes in these unequivocal terms: ‘It can no longer be doubted that as a matter of general customary international law a Head of State will personally be liable to be called to account if there is sufficient evidence that he authorized or perpetrated such serious international crimes.’ Most senior jurists of Watt’s ilk who opined on the matter came to a similar conclusion. Yet, some concerning recent academic commentary wrongly suggests that there remains doubt around the question. For example, the Advisory Committee on Public International Law (CAVV), an academic thinktank that advises the Dutch government, suggested in its report on the accountability of President Putin that ‘in international legal practice, there is no clear-cut answer to the question of whether there is an exception to functional immunity for international crimes, including the crime of aggression’. This article uses the CAVV recommendation as a case study in certain mistakes and confusions that have long plagued the discourse on the immunity of state officials, especially heads of state, accused or suspected of international crimes.","PeriodicalId":46732,"journal":{"name":"Journal of International Criminal Justice","volume":"18 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-09-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"136072658","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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