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Essence of Crimes against Humanity Raised by Challenges at ICC

Published on September 27, 2011        Author: 

Two recent challenges to the jurisdiction of the International Criminal Court in the Kenya situation bring out exciting questions of the essence of crimes against humanity. Defence counsel have challenged jurisdiction on the grounds that the violence in Kenya, which involved over one thousand killings and hundreds of rapes, did not constitute a crime against humanity (see: challenge, challenge and prosecution response).  This issue has divided the Pre-Trial Chamber in past proceedings.  As this is a jurisdictional challenge, the outcome can and almost certainly will be appealed to the Appeals Chamber.  The case raises extraordinarily difficult questions about the demarcation line between crimes against humanity and ‘ordinary’ crimes, and thus the role and scope of international criminal law.

Previously, in the decision to authorize the investigation, the Pre-Trial Chamber divided on this issue, with both the majority and the dissent providing compelling arguments. The ICC Statute requires a “State or organization” behind the crime against humanity; Judge Kaul in dissent argued for a more stringent standard of a “State-like” organizations, whereas Judges Trendafilova and Tarfusser adopted a more flexible “capacity” test for an organization.

The more stringent approach advanced by Judge Kaul has attracted support in thoughtful and well-reasoned recent scholarship.  My aim in this comment is simply to add that a convincing theoretical account can also be advanced on behalf of the majority’s broader approach.  I do not seek to point to any flaws in the reasoning of the dissent or the scholars favouring the more stringent approach, as their reasoning is perfectly sound and impeccable.  Indeed, I acknowledge that the “state-like” theory is internally coherent, reconcilable with limited doctrinal authorities and consistent with a sound theory of crimes against humanity.  My aim is modestly to lay alongside that theory another plausible theory, which is also internally coherent, consistent with the authorities and consistent with a sound theory of crimes against humanity. Read the rest of this entry…

 

ICC Review Conference: Taking Stock of Stocktaking

Published on June 3, 2010        Author: 

In the opening days of the Review Conference, one often heard references to the Review Conference as an “historic event” and a “second constitutional moment”.  With the significant exception of the possible adoption of the crime of aggression, which would indeed be a profound development, there is reason to ask whether the Conference is more a “constitutional moment” or just “another day at the office”.

My first blog highlighted the potential value of the stocktaking exercise.  Amending attitudes and understandings could prove as important, or more important, than amending the Statute.  I remain positive about the idea of stock-taking, the topics selected, the format adopted and the prominent panelists invited to open discussions.

However, given that the venue is a Review Conference, and given that the stocktaking is in part a substitute for actual amendments to the Statute, one might have hoped that the delegates would at least tackle a few issues of comparable difficulty and significance and take some meaningful decisions about their vision for international justice.  Instead, the discussions among States have adhered quite closely to safe, well-worn and self-congratulatory scripts.

Thus, for example, in the discussions on peace and justice, most States intervened to deliver an essentially similar message:  Peace is good.  Justice is good.  Peace and justice are not contradictory.  Except perhaps sometimes when they at least seem so, and such situations require careful thought and handling.  The last point is typically made in a knowledgeable tone hinting that the speaker has a few deep insights into how this is done (and giving the sense that different delegations might handle the balancing in very different ways).  Repeat 40 times in different voices and languages, with no real delving into controversies or solutions. Read the rest of this entry…

 
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ICC Review Conference Opens in Kampala; Features Intriguing Hybrid Character

Published on May 31, 2010        Author: 

The International Criminal Court Review Conference opened today, May 31, 2010 in Kampala, Uganda.   The Conference has drawn thousands of participants, including heads of state, ministers, diplomats and other State officials, NGOs, parliamentarians, academics, media and officials from international courts and from the United Nations (including the current Secretary General and his predecessor).  The conference is hosted by Uganda, the first State Party to refer a situation to the Court and a site of the Court’s earliest investigations.

 The Review Conference marks the first opportunity to consider amendments to the Rome Statute, which was adopted at a Diplomatic Conference in 1998.  The centre of attention on the agenda is the crime of aggression, which has brought to the fore contrasting visions of the role of the ICC and its relationship with other international institutions.  Other proposed amendments include war crimes and the ‘transitional provision’ (discussed below).  The scope of the Review Conference has expanded beyond discussion of amendments; participants have seized the opportunity for a deeper discussion on the future shape of international criminal justice.  Thus, a “stock-taking” exercise is taking place to discuss complementarity, cooperation, peace and justice, and the impact on victims and affected communities.

 AGGRESSION

 The crime of aggression presents by far the most controversial, the most complex and most profound questions.  Read the rest of this entry…

 
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