War Crimes

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UN Security Council Referrals to the ICC and the Principle of Legality

Introduction On 1 November 2021, the Appeals Chamber (AC) of the International Criminal Court (ICC) rendered an interesting judgment relating to a jurisdictional challenge brought by the Defence in the case of Ali Muhammad Ali Abd-Al-Rhaman (“Ali Kushayb”). The challenge is noteworthy because it confronted the Court with novel issues of law relating to the basis and extent of its jurisdiction in cases of UN Security Council Referrals (as provided for in art 13(b) of the Rome Statute, RS). Even though it rejected all challenges, the AC did clarify important legal issues corrected some of the reasoning of the Pre-Trial Chamber II. In essence, this decision is about the application of the principle of legality or nullum crimen sine lege before the ICC in situations in a non-party state referred to it by the UN Security Council (UNSC). The reasoning provided for in the judgment clarifies several pertinent issues regarding the basis, scope and extent of its jurisdiction in these cases. The fact that Judge Ibáñez’s expressed a separate opinion for…

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The Weakest Link of the Troika? The Immunity of Heads of Government in Customary International Law

There have been a flurry of cases in the English courts concerning foreign leaders in recent months. Permission has been granted to serve the President of Mozambique in a case involving claims challenging state guarantees of the financing for projects in Mozambique. The Fifth President of Ukraine (2014-2019) Petro Poroshenko has been found to be immune…

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The Ntaganda appeal judgment and the meaning of ‘attack’ in conduct of hostilities war crimes

One of the many interesting issues raised by the ICC’s recent Ntaganda appeal judgment, and the subject of this post, is whether war crimes referring to ‘attacks’ require a nexus to hostilities. IHL has traditionally distinguished between protecting persons from the conduct of hostilities (Hague law) and protecting persons in the power of a belligerent (Geneva…

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Australian war crimes in Afghanistan: The Brereton Report

On Thursday 19 November Australia faced a reckoning with its recent past in Afghanistan.* Australian political culture approaches our armed forces with a great degree of deference and respect. Three of our last four Governors General have been, for example, senior military leaders. The Australian Defence Force support operations in respect of the January 2020 bushfires and the…

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The First Report of the OPCW’s Investigation and Identification Team on Syria

In April 2020, the Investigation and Identification Team (IIT) formed by the Director General of the Organisation for Prevention of Chemical Weapons (OPCW) to identify the perpetrators of the use of chemical weapons in the Syrian Arab Republic released its First Report (First IIT Report). The IIT was established pursuant to a decision of the Conference…

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