The development of autonomous weapons systems (AWS) and, more generally, the role of artificial intelligence in warfare, may come to pose unprecedented challenges to criminal law, including by making it harder to link harm to individuals who can be held responsible, due to the pivotal role of the concepts of actus reus, mens rea and causation in that domain. In this context, the notion of meaningful human control has been proposed to address some of the challenges of ensuring accountability for serious violations of international humanitarian law. One possibility might be to link — conceptually, or even legally — meaningful human control with the ‘control theory’ propounded at the International Criminal Court to assign criminal responsibility. Under this theory, the ascription of criminal responsibility to an individual as a direct perpetrator requires an assessment of whether they enjoy an effective ability to decide on the commission of a crime. This article elaborates on some of the issues posed by this approach, proceeding then to consider the most ‘extreme’ instance of AWS, i.e. the deployment of swarms of drones operating autonomously and coordinating their behaviour in a decentralized manner.
{"title":"Crimes without Humanity?","authors":"G. Acquaviva","doi":"10.1093/jicj/mqad024","DOIUrl":"https://doi.org/10.1093/jicj/mqad024","url":null,"abstract":"\u0000 The development of autonomous weapons systems (AWS) and, more generally, the role of artificial intelligence in warfare, may come to pose unprecedented challenges to criminal law, including by making it harder to link harm to individuals who can be held responsible, due to the pivotal role of the concepts of actus reus, mens rea and causation in that domain. In this context, the notion of meaningful human control has been proposed to address some of the challenges of ensuring accountability for serious violations of international humanitarian law. One possibility might be to link — conceptually, or even legally — meaningful human control with the ‘control theory’ propounded at the International Criminal Court to assign criminal responsibility. Under this theory, the ascription of criminal responsibility to an individual as a direct perpetrator requires an assessment of whether they enjoy an effective ability to decide on the commission of a crime. This article elaborates on some of the issues posed by this approach, proceeding then to consider the most ‘extreme’ instance of AWS, i.e. the deployment of swarms of drones operating autonomously and coordinating their behaviour in a decentralized manner.","PeriodicalId":46732,"journal":{"name":"Journal of International Criminal Justice","volume":null,"pages":null},"PeriodicalIF":0.9,"publicationDate":"2023-07-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"60868204","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 explains variation in state cooperation with International Criminal Court (ICC)’s investigations and prosecutions across cases and over time. The idea motivating this study stems from the observation of the mixed record of state cooperation with ICC operations. For legal professionals and scholars this observation is puzzling, since states falling within the ICC’s territorial jurisdiction are legally bound to provide full judicial assistance to the Court. Thus, why do some countries entertain collaborative relations with the ICC while others display hostility towards it? I argue that state leaders’ perceptions of potential ICC indictment best explain variation in state behaviour. This article aims to contribute to a better understanding of how state attitudes form and of the extent to which external actors, spearheaded by the ICC Prosecutor’s Office (OTP), can change them. The research findings suggest that: 1) neither formal state consent (ratification) nor regime type are reliable predictors of state cooperation; 2) state leaders’ perception of potential ICC indictment appears better suited to correctly predict state behaviour in all the situations investigated by the OTP; 3) the OTP’s signalling strategy — including the timing of its intervention — affects state leaders’ perception of future ICC indictment and, in turn, the prospects of state cooperation; 4) when state authorities deny cooperation, regime change provides a one-time opportunity to start ICC–state relations anew.
{"title":"Of Crimes and Crowns","authors":"Marco Bocchese","doi":"10.1093/jicj/mqad021","DOIUrl":"https://doi.org/10.1093/jicj/mqad021","url":null,"abstract":"\u0000 This article explains variation in state cooperation with International Criminal Court (ICC)’s investigations and prosecutions across cases and over time. The idea motivating this study stems from the observation of the mixed record of state cooperation with ICC operations. For legal professionals and scholars this observation is puzzling, since states falling within the ICC’s territorial jurisdiction are legally bound to provide full judicial assistance to the Court. Thus, why do some countries entertain collaborative relations with the ICC while others display hostility towards it? I argue that state leaders’ perceptions of potential ICC indictment best explain variation in state behaviour. This article aims to contribute to a better understanding of how state attitudes form and of the extent to which external actors, spearheaded by the ICC Prosecutor’s Office (OTP), can change them. The research findings suggest that: 1) neither formal state consent (ratification) nor regime type are reliable predictors of state cooperation; 2) state leaders’ perception of potential ICC indictment appears better suited to correctly predict state behaviour in all the situations investigated by the OTP; 3) the OTP’s signalling strategy — including the timing of its intervention — affects state leaders’ perception of future ICC indictment and, in turn, the prospects of state cooperation; 4) when state authorities deny cooperation, regime change provides a one-time opportunity to start ICC–state relations anew.","PeriodicalId":46732,"journal":{"name":"Journal of International Criminal Justice","volume":null,"pages":null},"PeriodicalIF":0.9,"publicationDate":"2023-07-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42671700","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":"Christoph Sperfeldt, Practices of Reparations in International Criminal Justice","authors":"L. Moffett","doi":"10.1093/jicj/mqad020","DOIUrl":"https://doi.org/10.1093/jicj/mqad020","url":null,"abstract":"","PeriodicalId":46732,"journal":{"name":"Journal of International Criminal Justice","volume":null,"pages":null},"PeriodicalIF":0.9,"publicationDate":"2023-06-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46535683","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}
Denys Azarov, D. Koval, Gaiane Nuridzhanian, Volodymyr Venher
The new wave of Russia’s aggression against Ukraine that began on 24 February 2022, and the intensification of the armed conflict accompanied by grave breaches of international humanitarian law, has received significant scholarly attention. Many academic interventions have examined the developments in Ukraine through the frameworks of jus ad bellum and jus in bello. Some, however, have applied a genocide lens to make sense of reported numerous and widespread violations of international humanitarian and human rights law. This article contributes to the latter stream of scholarship by contextualizing the arguments for the existence of genocidal intent behind the seemingly unrelated crimes committed by the armed forces of the Russian Federation all over Ukraine. The authors pay particular attention to the language and pseudo-historical references used by Russia’s leaders as a justification for the invasion of Ukraine and argue that these statements and expressions indicate the existence of genocidal intent. This article also reflects on the issue of the systematic destruction of cultural heritage of Ukraine as further evidence of the intent to destroy the Ukrainian nation understood as a protected national group under the Genocide Convention, at least in part. Finally, the authors analyse the genocidal acts that have apparently been committed, including killings; the causing of serious bodily or mental harm; the forcible transfer of Ukrainian children to Russia, and the deliberate infliction of conditions of life aimed at the physical destruction of the Ukrainian nation. It is stressed that there are reasonable grounds to believe that the destruction of the Ukrainian nation by Russia has been pursued through commission of these prohibited acts. Their nature and large-scale character serve as further evidence of genocidal intent to destroy the Ukrainian nation.
{"title":"Understanding Russia’s Actions in Ukraine as the Crime of Genocide","authors":"Denys Azarov, D. Koval, Gaiane Nuridzhanian, Volodymyr Venher","doi":"10.1093/jicj/mqad018","DOIUrl":"https://doi.org/10.1093/jicj/mqad018","url":null,"abstract":"\u0000 The new wave of Russia’s aggression against Ukraine that began on 24 February 2022, and the intensification of the armed conflict accompanied by grave breaches of international humanitarian law, has received significant scholarly attention. Many academic interventions have examined the developments in Ukraine through the frameworks of jus ad bellum and jus in bello. Some, however, have applied a genocide lens to make sense of reported numerous and widespread violations of international humanitarian and human rights law. This article contributes to the latter stream of scholarship by contextualizing the arguments for the existence of genocidal intent behind the seemingly unrelated crimes committed by the armed forces of the Russian Federation all over Ukraine. The authors pay particular attention to the language and pseudo-historical references used by Russia’s leaders as a justification for the invasion of Ukraine and argue that these statements and expressions indicate the existence of genocidal intent. This article also reflects on the issue of the systematic destruction of cultural heritage of Ukraine as further evidence of the intent to destroy the Ukrainian nation understood as a protected national group under the Genocide Convention, at least in part. Finally, the authors analyse the genocidal acts that have apparently been committed, including killings; the causing of serious bodily or mental harm; the forcible transfer of Ukrainian children to Russia, and the deliberate infliction of conditions of life aimed at the physical destruction of the Ukrainian nation. It is stressed that there are reasonable grounds to believe that the destruction of the Ukrainian nation by Russia has been pursued through commission of these prohibited acts. Their nature and large-scale character serve as further evidence of genocidal intent to destroy the Ukrainian nation.","PeriodicalId":46732,"journal":{"name":"Journal of International Criminal Justice","volume":null,"pages":null},"PeriodicalIF":0.9,"publicationDate":"2023-06-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49086884","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}
The US Army war crimes trials held in Manila from 1945 to 1947 prosecuted around 200 Japanese military personnel for war crimes committed against US prisoners of war and Filipino non-combatants. Japanese defendants attempted to argue, with little success, that the defence of superior orders justified their actions. General Douglas MacArthur (Supreme Commander for the Allies in the Pacific or SCAP) was adamant that superior orders would not serve to excuse alleged Japanese war criminals from war crimes. What is clear from the trial documents and other archival material from Manila is that not all sections of the prosecution agreed with MacArthur’s interpretation of the law. However, it seems as though MacArthur’s pronouncement in relation to the application of superior orders may have had a profound impact on not only the Manila trials, but also with subsequent trials in World War II and beyond. This article explores the various arguments in relation to superior orders emanating from the US Army trials in Manila. The trials in Manila show that the rejection of superior orders as a defence in war crimes offered a reasonable foundation and precedent for how subsequent courts and tribunals evaluated the defence of superior orders within the context of war crimes jurisprudence.
{"title":"‘He Offered a Prayer for the Flier He Had Just Killed’","authors":"J. Fellows, Mark Chong","doi":"10.1093/jicj/mqad017","DOIUrl":"https://doi.org/10.1093/jicj/mqad017","url":null,"abstract":"\u0000 The US Army war crimes trials held in Manila from 1945 to 1947 prosecuted around 200 Japanese military personnel for war crimes committed against US prisoners of war and Filipino non-combatants. Japanese defendants attempted to argue, with little success, that the defence of superior orders justified their actions. General Douglas MacArthur (Supreme Commander for the Allies in the Pacific or SCAP) was adamant that superior orders would not serve to excuse alleged Japanese war criminals from war crimes. What is clear from the trial documents and other archival material from Manila is that not all sections of the prosecution agreed with MacArthur’s interpretation of the law. However, it seems as though MacArthur’s pronouncement in relation to the application of superior orders may have had a profound impact on not only the Manila trials, but also with subsequent trials in World War II and beyond. This article explores the various arguments in relation to superior orders emanating from the US Army trials in Manila. The trials in Manila show that the rejection of superior orders as a defence in war crimes offered a reasonable foundation and precedent for how subsequent courts and tribunals evaluated the defence of superior orders within the context of war crimes jurisprudence.","PeriodicalId":46732,"journal":{"name":"Journal of International Criminal Justice","volume":null,"pages":null},"PeriodicalIF":0.9,"publicationDate":"2023-05-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47417568","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}
Responding to the wider concern with how to understand the connections between sex and violence in the context of conflict-related sexual violence, this article examines how international criminal law constructs what is sexual about sexual violence. The article adopts a narrative expressivist approach to the knowledge generating effects of international criminal proceedings, using a discourse analysis of judgments and trial transcripts to demonstrate how ‘the sexual’ in sexual violence emerges in the judgments of international criminal courts primarily as a social question, in how sexual violence injures the conjugal order of the community to which victims belong. Drawing on the concept of sexual subjectivity, the article nevertheless reveals how some testimonies during the proceedings of international criminal trials go beyond this dominant narrative, offering instead a perspective that captures the specifically sexualized harm inflicted on individuals by sexual violation. The article ultimately exposes how the dominant narrative of sexual violence that emerges through the judgments of international criminal courts tends to overlook the injury to individual sexual subjectivity inflicted by sexual violence and, in doing so, functions to discount victims’ full subjectivity, including in their sexual lives.
{"title":"What is Sexual about Sexual Violence?","authors":"Ciara Laverty","doi":"10.1093/jicj/mqad019","DOIUrl":"https://doi.org/10.1093/jicj/mqad019","url":null,"abstract":"\u0000 Responding to the wider concern with how to understand the connections between sex and violence in the context of conflict-related sexual violence, this article examines how international criminal law constructs what is sexual about sexual violence. The article adopts a narrative expressivist approach to the knowledge generating effects of international criminal proceedings, using a discourse analysis of judgments and trial transcripts to demonstrate how ‘the sexual’ in sexual violence emerges in the judgments of international criminal courts primarily as a social question, in how sexual violence injures the conjugal order of the community to which victims belong. Drawing on the concept of sexual subjectivity, the article nevertheless reveals how some testimonies during the proceedings of international criminal trials go beyond this dominant narrative, offering instead a perspective that captures the specifically sexualized harm inflicted on individuals by sexual violation. The article ultimately exposes how the dominant narrative of sexual violence that emerges through the judgments of international criminal courts tends to overlook the injury to individual sexual subjectivity inflicted by sexual violence and, in doing so, functions to discount victims’ full subjectivity, including in their sexual lives.","PeriodicalId":46732,"journal":{"name":"Journal of International Criminal Justice","volume":null,"pages":null},"PeriodicalIF":0.9,"publicationDate":"2023-05-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42966179","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}
The criminalization of the unlawful use of force in international relations is not usually linked to conscription of an army to fight such a war. However, historical precedent in the Nuremberg and Tokyo International Military Tribunals established that conscription was part of the common plan to wage a war of aggression. After a brief history of conscription and its justifications, this article examines that precedent and then analyses how it could be put to use in a prosecution of the crime of aggression under the Rome Statute of the International Criminal Court. Finally, it argues that there is a normative case for the inclusion of conscription within the scope of the crime of aggression because of the harm done to both the conscripts and the state and people of the place they invade.
{"title":"Conscription to Fight a War of Aggression under International Criminal Law","authors":"N. Boister","doi":"10.1093/jicj/mqad016","DOIUrl":"https://doi.org/10.1093/jicj/mqad016","url":null,"abstract":"\u0000 The criminalization of the unlawful use of force in international relations is not usually linked to conscription of an army to fight such a war. However, historical precedent in the Nuremberg and Tokyo International Military Tribunals established that conscription was part of the common plan to wage a war of aggression. After a brief history of conscription and its justifications, this article examines that precedent and then analyses how it could be put to use in a prosecution of the crime of aggression under the Rome Statute of the International Criminal Court. Finally, it argues that there is a normative case for the inclusion of conscription within the scope of the crime of aggression because of the harm done to both the conscripts and the state and people of the place they invade.","PeriodicalId":46732,"journal":{"name":"Journal of International Criminal Justice","volume":null,"pages":null},"PeriodicalIF":0.9,"publicationDate":"2023-05-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41472038","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 Apartheid is a crime against humanity, yet no person has ever been prosecuted for this crime. In 2021 two individuals were indicted in South Africa for the crime of apartheid. This is an historic first in the country which gave the policy of apartheid its name and material content. The indictment is, however, also a reminder that the non-prosecution of apartheid is a legal and moral issue to be understood in the context of South Africa’s transition from apartheid to democracy. Furthermore, the indictment, while historic and of international significance, concerns constitutional, procedural and prosecutorial issues that illustrate the complexities of the application of international criminal law in domestic criminal justice systems. This contribution argues that all these factors should be acknowledged and analysed. Ultimately, and despite the many obstacles and complexities, it is submitted that it is right to indict individuals who, through their crimes, made the apartheid system possible even if they were not in positions of leadership.
{"title":"Prosecuting the Crime against Humanity of Apartheid","authors":"Gerhard Kemp, Windell Nortje","doi":"10.1093/jicj/mqad023","DOIUrl":"https://doi.org/10.1093/jicj/mqad023","url":null,"abstract":"Abstract Apartheid is a crime against humanity, yet no person has ever been prosecuted for this crime. In 2021 two individuals were indicted in South Africa for the crime of apartheid. This is an historic first in the country which gave the policy of apartheid its name and material content. The indictment is, however, also a reminder that the non-prosecution of apartheid is a legal and moral issue to be understood in the context of South Africa’s transition from apartheid to democracy. Furthermore, the indictment, while historic and of international significance, concerns constitutional, procedural and prosecutorial issues that illustrate the complexities of the application of international criminal law in domestic criminal justice systems. This contribution argues that all these factors should be acknowledged and analysed. Ultimately, and despite the many obstacles and complexities, it is submitted that it is right to indict individuals who, through their crimes, made the apartheid system possible even if they were not in positions of leadership.","PeriodicalId":46732,"journal":{"name":"Journal of International Criminal Justice","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135466370","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 whether it is appropriate on legal and policy grounds to criminalize as war crimes the acts of governance performed by non-state armed groups controlling territory. Using the administration of justice by armed groups and the Al Hassan case before the International Criminal Court as a reference point, it sheds light on the problems raised by the adoption of an overly broad definition of the war crimes’ nexus to the armed conflict. When the definition of ‘nexus’ is stretched to cover also rebel governance activities, the outcome is at odds with international humanitarian law’s provisions and nature. This approach also has detrimental consequences, including exposing non-state armed groups to unfair and asymmetric criminalization. This article submits that acts of rebel governance should not be criminalized as war crimes — other legal frameworks may be more suitable from a legal and policy standpoint to compel armed groups to comply with international standards and engage with them fruitfully.
{"title":"Criminalizing Acts of Rebel Governance as War Crimes","authors":"Diletta Marchesi","doi":"10.1093/jicj/mqad026","DOIUrl":"https://doi.org/10.1093/jicj/mqad026","url":null,"abstract":"Abstract This article explores whether it is appropriate on legal and policy grounds to criminalize as war crimes the acts of governance performed by non-state armed groups controlling territory. Using the administration of justice by armed groups and the Al Hassan case before the International Criminal Court as a reference point, it sheds light on the problems raised by the adoption of an overly broad definition of the war crimes’ nexus to the armed conflict. When the definition of ‘nexus’ is stretched to cover also rebel governance activities, the outcome is at odds with international humanitarian law’s provisions and nature. This approach also has detrimental consequences, including exposing non-state armed groups to unfair and asymmetric criminalization. This article submits that acts of rebel governance should not be criminalized as war crimes — other legal frameworks may be more suitable from a legal and policy standpoint to compel armed groups to comply with international standards and engage with them fruitfully.","PeriodicalId":46732,"journal":{"name":"Journal of International Criminal Justice","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135466145","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":"Darryl Robinson, Justice in Extreme Cases. Criminal law Theory Meets International Criminal Law","authors":"Niccolò Pons","doi":"10.1093/jicj/mqad014","DOIUrl":"https://doi.org/10.1093/jicj/mqad014","url":null,"abstract":"","PeriodicalId":46732,"journal":{"name":"Journal of International Criminal Justice","volume":null,"pages":null},"PeriodicalIF":0.9,"publicationDate":"2023-04-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42042093","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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