Pub Date : 2023-10-17DOI: 10.1163/15718123-bja10159
Demetra Fr. Sorvatzioti
Abstract The icc ’s legal framework combines continental and common law features. The sentencing regime provides for a separate hearing process unknown to the continentals. The principle of proportionality governs sentencing determination. Proportionality is met by analysing gravity and moral blameworthiness. In Ongwen , the icc should address his moral blameworthiness by considering his unique dual status as a former abducted child soldier and perpetrator, the expert evidence regarding the lra and the Acholi culture and history. The Court sentenced Ongwen in a rather formal traditional continental way. However, conviction is not the icc ’s ultimatum, and sentencing should not be a pure side effect of conviction. When the icc tries cases of non-western peoples, it is essential to express its understanding and respect for diversity. By addressing cultural, social, and historical aspects of the case and the offender as part of the sentencing reasoning, the icc performs the balancing process needed for proportionality.
{"title":"Proportionality and Moral Blameworthiness in Ongwen’s icc Sentencing Decision","authors":"Demetra Fr. Sorvatzioti","doi":"10.1163/15718123-bja10159","DOIUrl":"https://doi.org/10.1163/15718123-bja10159","url":null,"abstract":"Abstract The icc ’s legal framework combines continental and common law features. The sentencing regime provides for a separate hearing process unknown to the continentals. The principle of proportionality governs sentencing determination. Proportionality is met by analysing gravity and moral blameworthiness. In Ongwen , the icc should address his moral blameworthiness by considering his unique dual status as a former abducted child soldier and perpetrator, the expert evidence regarding the lra and the Acholi culture and history. The Court sentenced Ongwen in a rather formal traditional continental way. However, conviction is not the icc ’s ultimatum, and sentencing should not be a pure side effect of conviction. When the icc tries cases of non-western peoples, it is essential to express its understanding and respect for diversity. By addressing cultural, social, and historical aspects of the case and the offender as part of the sentencing reasoning, the icc performs the balancing process needed for proportionality.","PeriodicalId":55966,"journal":{"name":"International Criminal Law Review","volume":"74 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-10-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"136038975","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-10-09DOI: 10.1163/15718123-bja10162
Giel Verhagen
Abstract Since 2019, the Dutch Public Prosecutor has tried four cases in which the accused has been cumulatively charged with a terrorism-related crime as well as a core international crime. This article examines the Dutch selection and prioritisation process of these charges when they are combined, comparing it to cases that solely include a core international crime charge and solely include terrorism-related charges. The findings suggest that, as a result of the suspect-driven approach and limited universal jurisdiction in the Netherlands, the available evidence is the most important criterion in the selection and prioritisation process in cases that include core international crimes. Moreover, resources can also be identified as an influential factor, whereas this aspect features less prominently in cases that only include terrorism-related charges. The influence of other criteria, such as gravity, remains ambiguous.
{"title":"Brothers in Arms? The Selection and Prioritisation of Core International Crimes and Terrorism in the Netherlands","authors":"Giel Verhagen","doi":"10.1163/15718123-bja10162","DOIUrl":"https://doi.org/10.1163/15718123-bja10162","url":null,"abstract":"Abstract Since 2019, the Dutch Public Prosecutor has tried four cases in which the accused has been cumulatively charged with a terrorism-related crime as well as a core international crime. This article examines the Dutch selection and prioritisation process of these charges when they are combined, comparing it to cases that solely include a core international crime charge and solely include terrorism-related charges. The findings suggest that, as a result of the suspect-driven approach and limited universal jurisdiction in the Netherlands, the available evidence is the most important criterion in the selection and prioritisation process in cases that include core international crimes. Moreover, resources can also be identified as an influential factor, whereas this aspect features less prominently in cases that only include terrorism-related charges. The influence of other criteria, such as gravity, remains ambiguous.","PeriodicalId":55966,"journal":{"name":"International Criminal Law Review","volume":"37 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-10-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135147111","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-10-06DOI: 10.1163/15718123-bja10163
Linda Mushoriwa
Abstract This paper examines whether traditional justice mechanisms have a place in international trials where the accused has committed core international crimes; through the lens of The International Criminal Court’s approach in the Ongwen case. Trial Chamber ix declined to incorporate the mato oput traditional justice mechanism of the Acholi people of Northern Uganda. The paper argues that although concerns have been raised regarding the application of traditional justice mechanisms in the aftermath of mass atrocities, they can still play a significant role alongside prosecutions for international crimes before international criminal tribunals and the International Criminal Court. It recommends ways in which traditional justice mechanisms can be incorporated into proceedings before the icc and concludes that if the Court is to be a truly universal Court as was envisaged at its inception it ought to holistically consider the issues brought before it, particularly from the Global South.
{"title":"The Prosecutor v Dominic Ongwen: An Examination of the Role of Traditional Justice Mechanisms in International Criminal Justice","authors":"Linda Mushoriwa","doi":"10.1163/15718123-bja10163","DOIUrl":"https://doi.org/10.1163/15718123-bja10163","url":null,"abstract":"Abstract This paper examines whether traditional justice mechanisms have a place in international trials where the accused has committed core international crimes; through the lens of The International Criminal Court’s approach in the Ongwen case. Trial Chamber ix declined to incorporate the mato oput traditional justice mechanism of the Acholi people of Northern Uganda. The paper argues that although concerns have been raised regarding the application of traditional justice mechanisms in the aftermath of mass atrocities, they can still play a significant role alongside prosecutions for international crimes before international criminal tribunals and the International Criminal Court. It recommends ways in which traditional justice mechanisms can be incorporated into proceedings before the icc and concludes that if the Court is to be a truly universal Court as was envisaged at its inception it ought to holistically consider the issues brought before it, particularly from the Global South.","PeriodicalId":55966,"journal":{"name":"International Criminal Law Review","volume":"6 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":"134945306","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-08-30DOI: 10.1163/15718123-bja10161
P. McAuliffe
{"title":"Transitional Justice for Foxes: Conflict, Pluralism and the Politics of Compromise, written by Frank Haldemann","authors":"P. McAuliffe","doi":"10.1163/15718123-bja10161","DOIUrl":"https://doi.org/10.1163/15718123-bja10161","url":null,"abstract":"","PeriodicalId":55966,"journal":{"name":"International Criminal Law Review","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2023-08-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44131684","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-08-28DOI: 10.1163/15718123-bja10160
R. Grey, R. Killean
This article explores Khmer-language media reporting of the final appeal judgment at the Extraordinary Chambers in the Courts of Cambodia (Case 002/02). Media reports are interesting for two reasons. First, as a source of opinions expressed in Cambodia’s official language (Khmer), which often remain beyond purview of international observers. Second, as one of the few sources of information about the eccc available to the Cambodian public now that official Court outreach has largely ceased. Yet, free media is significantly curtailed in Cambodia, and reporting on the eccc is likely to be shaped by what is politically safe to print, as well as what is deemed publicly interesting. Against this backdrop this article explores: the press’s tendency to downplay Cambodian political interference in the eccc proceedings; its (mis)representation of the eccc’s genocide findings; its reporting on the prosecution of sexual and gender-based crimes; and its use of ‘justice for victims’ rhetoric.
{"title":"Communicating Justice: Cambodian Press Coverage of the eccc’s Final Judgment","authors":"R. Grey, R. Killean","doi":"10.1163/15718123-bja10160","DOIUrl":"https://doi.org/10.1163/15718123-bja10160","url":null,"abstract":"\u0000This article explores Khmer-language media reporting of the final appeal judgment at the Extraordinary Chambers in the Courts of Cambodia (Case 002/02). Media reports are interesting for two reasons. First, as a source of opinions expressed in Cambodia’s official language (Khmer), which often remain beyond purview of international observers. Second, as one of the few sources of information about the eccc available to the Cambodian public now that official Court outreach has largely ceased. Yet, free media is significantly curtailed in Cambodia, and reporting on the eccc is likely to be shaped by what is politically safe to print, as well as what is deemed publicly interesting. Against this backdrop this article explores: the press’s tendency to downplay Cambodian political interference in the eccc proceedings; its (mis)representation of the eccc’s genocide findings; its reporting on the prosecution of sexual and gender-based crimes; and its use of ‘justice for victims’ rhetoric.","PeriodicalId":55966,"journal":{"name":"International Criminal Law Review","volume":"1 1","pages":""},"PeriodicalIF":0.3,"publicationDate":"2023-08-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41831139","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-08-25DOI: 10.1163/15718123-bja10157
Kathleen M. Maloney, M. O’Brien, V. Oosterveld
The Ongwen case, concluded in December 2022 at the International Criminal Court (icc), convicted the defendant of a gender-based act that had never been litigated by the icc: forced marriage. This article argues that the judicial consideration of forced marriage in Ongwen has settled the international jurisprudence in three important ways. First, it clarified the classification of forced marriage as an ‘other inhumane act’. Second, it recognised and solidified the conduct and harms captured by the term ‘forced marriage’, distinguishing it from other crimes against humanity. Finally, it confirmed that prosecution of forced marriage does not contravene nullum crimen sine lege principles. These outcomes will play a key role in future recognition and prosecutions of forced marriage in international criminal law. This article suggests that the logical next step is to explicitly list forced marriage as a crime against humanity in the Rome Statute and the draft Crimes Against Humanity Convention.
{"title":"Forced Marriage as the Crime Against Humanity of ‘Other Inhumane Acts’ in the International Criminal Court’s Ongwen Case","authors":"Kathleen M. Maloney, M. O’Brien, V. Oosterveld","doi":"10.1163/15718123-bja10157","DOIUrl":"https://doi.org/10.1163/15718123-bja10157","url":null,"abstract":"\u0000The Ongwen case, concluded in December 2022 at the International Criminal Court (icc), convicted the defendant of a gender-based act that had never been litigated by the icc: forced marriage. This article argues that the judicial consideration of forced marriage in Ongwen has settled the international jurisprudence in three important ways. First, it clarified the classification of forced marriage as an ‘other inhumane act’. Second, it recognised and solidified the conduct and harms captured by the term ‘forced marriage’, distinguishing it from other crimes against humanity. Finally, it confirmed that prosecution of forced marriage does not contravene nullum crimen sine lege principles. These outcomes will play a key role in future recognition and prosecutions of forced marriage in international criminal law. This article suggests that the logical next step is to explicitly list forced marriage as a crime against humanity in the Rome Statute and the draft Crimes Against Humanity Convention.","PeriodicalId":55966,"journal":{"name":"International Criminal Law Review","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2023-08-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45888840","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-08-17DOI: 10.1163/15718123-bja10158
W. Nortje, N. Quenivet
Dominic Ongwen was convicted and sentenced for numerous atrocities by the International Criminal Court (icc) in 2021. The Defence focused on the coercive environment that Ongwen was subjected to from his abduction as a boy until his surrender as an adult. The icc rejected the claim of duress as a ground for excluding criminal responsibility in the context of a past and present coercive environment. This article examines how the icc interpreted and applied duress in the Ongwen case and evaluates whether a coercive environment can be categorised as a unique defence in the icc Statute. This is done by scrutinising whether a coercive environment has been raised as a defence in domestic jurisdictions. This paper shows that national courts have not recognised a defence specific to crimes committed in a coercive environment and thus concludes that no such defence can be used by defendants before the icc.
{"title":"Fertile or Futile Grounds for Excluding Criminal Responsibility? A Critical Analysis of the Ongwen Judgment in Relation to the Claim of Coercive Environment","authors":"W. Nortje, N. Quenivet","doi":"10.1163/15718123-bja10158","DOIUrl":"https://doi.org/10.1163/15718123-bja10158","url":null,"abstract":"\u0000Dominic Ongwen was convicted and sentenced for numerous atrocities by the International Criminal Court (icc) in 2021. The Defence focused on the coercive environment that Ongwen was subjected to from his abduction as a boy until his surrender as an adult. The icc rejected the claim of duress as a ground for excluding criminal responsibility in the context of a past and present coercive environment. This article examines how the icc interpreted and applied duress in the Ongwen case and evaluates whether a coercive environment can be categorised as a unique defence in the icc Statute. This is done by scrutinising whether a coercive environment has been raised as a defence in domestic jurisdictions. This paper shows that national courts have not recognised a defence specific to crimes committed in a coercive environment and thus concludes that no such defence can be used by defendants before the icc.","PeriodicalId":55966,"journal":{"name":"International Criminal Law Review","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2023-08-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43922270","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-07-14DOI: 10.1163/15718123-bja10156
Zuzanna Godzimirska, Nabil M. Orina
Building on a growing body of scholarship that accentuates the communicative foundations and dimensions of international criminal justice, the article explores how defendants and their defence teams navigate the discursive battleground in the course of trials at the International Criminal Court (icc). Given the central role of narratives in the construction and (de)legitimation of identities, and their profound implications for perceptions about trial participants, the article seeks to understand what implications defences’ relative disadvantage vis-á-vis the prosecutions’ in terms of institutional support, access to resources and media visibility, have for their strategies of narrative control and positioning. To this end, the article charts the discursive battle sites at global, regional and local levels, maps specific strategies of narrative control in these sites, and zooms in on two prominent themes in the identity construction of defendants within and beyond the icc courtroom.
{"title":"Scapegoats and Underdogs: Narrative Control and Defence Positioning within and Beyond the International Criminal Court","authors":"Zuzanna Godzimirska, Nabil M. Orina","doi":"10.1163/15718123-bja10156","DOIUrl":"https://doi.org/10.1163/15718123-bja10156","url":null,"abstract":"\u0000Building on a growing body of scholarship that accentuates the communicative foundations and dimensions of international criminal justice, the article explores how defendants and their defence teams navigate the discursive battleground in the course of trials at the International Criminal Court (icc). Given the central role of narratives in the construction and (de)legitimation of identities, and their profound implications for perceptions about trial participants, the article seeks to understand what implications defences’ relative disadvantage vis-á-vis the prosecutions’ in terms of institutional support, access to resources and media visibility, have for their strategies of narrative control and positioning. To this end, the article charts the discursive battle sites at global, regional and local levels, maps specific strategies of narrative control in these sites, and zooms in on two prominent themes in the identity construction of defendants within and beyond the icc courtroom.","PeriodicalId":55966,"journal":{"name":"International Criminal Law Review","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2023-07-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45979968","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-07-14DOI: 10.1163/15718123-bja10154
V. Shatilo, S. Kharytonov, V. Kovbasa, A. Svintsytskyi, A. Lyseiuk
Notwithstanding the war that raged through the former Yugoslavia in the 1990s, Russia’s aggression against Ukraine is admittedly the first armed conflict of such a scale to take place almost in the heart of Europe. The Russian–Ukrainian war poses a threat to the international order, and risks escalating into a Third World War, especially if Belarus sides with Russia to participate in the armed conflict. While it could seem that in the 21st century all issues and conflicts arising between states should be resolved at the diplomatic level, in accordance with the requirements and norms of relevant international pacts and treaties, humanity still turns to such a destructive and cruel way of resolving them as war. This article explores the issue of accountability prospects for crimes perpetrated in the context of Russia’s invasion of Ukraine, both from the viewpoint of State responsibility and from that of individual criminal responsibility.
{"title":"Prospects for State and Individual Responsibility in Cases of Aggression in the Context of Russia’s Armed Aggression Against Ukraine","authors":"V. Shatilo, S. Kharytonov, V. Kovbasa, A. Svintsytskyi, A. Lyseiuk","doi":"10.1163/15718123-bja10154","DOIUrl":"https://doi.org/10.1163/15718123-bja10154","url":null,"abstract":"\u0000Notwithstanding the war that raged through the former Yugoslavia in the 1990s, Russia’s aggression against Ukraine is admittedly the first armed conflict of such a scale to take place almost in the heart of Europe. The Russian–Ukrainian war poses a threat to the international order, and risks escalating into a Third World War, especially if Belarus sides with Russia to participate in the armed conflict. While it could seem that in the 21st century all issues and conflicts arising between states should be resolved at the diplomatic level, in accordance with the requirements and norms of relevant international pacts and treaties, humanity still turns to such a destructive and cruel way of resolving them as war. This article explores the issue of accountability prospects for crimes perpetrated in the context of Russia’s invasion of Ukraine, both from the viewpoint of State responsibility and from that of individual criminal responsibility.","PeriodicalId":55966,"journal":{"name":"International Criminal Law Review","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2023-07-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49654439","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-07-11DOI: 10.1163/15718123-bja10155
M. Christensen, Nabil M. Orina
{"title":"Power and Brokerage in International Criminal Justice","authors":"M. Christensen, Nabil M. Orina","doi":"10.1163/15718123-bja10155","DOIUrl":"https://doi.org/10.1163/15718123-bja10155","url":null,"abstract":"","PeriodicalId":55966,"journal":{"name":"International Criminal Law Review","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2023-07-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45310971","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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