International human rights law (IHRL), international humanitarian law (IHL) and international criminal law (ICL) have trouble staying faithful to the two pillars of customary international law – state practice and opinio juris. In ICL, the Tadić Interlocutory Appeal on Jurisdiction and the Kupreškić Trial Judgement have even gone as far as enunciating new models to identify customs. In this article, I show that the approaches to customs’ identification postulated in these two cases were conflict-avoidance techniques used by the International Criminal Tribunal for the Former Yugoslavia (ICTY) to bring together IHRL and IHL. The crux of the matter in the Tadić and Kupreškić cases was that the human rights of the victims of war crimes committed in internal conflicts required that a new approach to customary international law be adopted. Thus, the criminal aspect of IHL (i.e., ICL) was updated, and conceptual conflicts between IHL and IHRL were avoided.

Perceptions of the International Criminal Court have undergone a deep malaise, particularly on the African continent. The frequent target of these perceptions is the Court’s Office of the Prosecutor; its prosecutorial selections have generated the most trenchant criticism of bias. These perceptions, often amplified by political elites and hostile media coverage, risk damaging the Court’s perceived legitimacy among its most essential audience: affected communities. These communities are crucial to the achievement of the Court’s goals, and are those within which justice must be seen to be done. In this light, this article conducts an analysis of the Office’s rhetoric and its ability to persuade affected communities that the Court is politically independent. The article outlines how the Office’s public communications express a key message of legalism; a belief in technical rule-compliance and in law’s superiority to politics. Using a classic Aristotelian framework, I argue that legalism lacks persuasiveness; it makes a weak appeal to the Prosecutor’s reputation, has a limited appeal in eliciting emotional support, and, is not a sufficiently logical explanation of the Court’s independence. In summary, legalism is a weak tactic of legitimation and a well-worn progress narrative. The article’s analysis has implications for other international institutions and the rhetoric they adopt to legitimate their independence. More specifically, the article concludes with recommendations that can help the Office reflect on its rhetoric and thus, develop a meaningful dialogue to those comm unities that are the Court’s raison d’être.

Between 1945 and 1949, the British military conducted a large number of war crimes trials in Europe and Asia. Based on historical archival records, among other sources, this article evaluates and compares the British authorities’ implementation of the 1945 Royal Warrant and war crimes trials in Europe and Asia, with a specific focus on trials organized in Germany and Singapore. By examining the British war crimes trial experience in those two jurisdictions, the article analyzes factors shaping the evolution of the Royal Warrant's legal framework and trial model in different contexts. It therefore contributes to the growing historical work on post-Second World War trials and current debates among scholars of transitional justice and international criminal law on the contextual factors that impact on war crimes trials.

The theories of joint criminal enterprise and joint control over the crime have often been cited as the paramount example of fragmentation in the jurisprudence of the International Criminal Court and the UN Tribunals. While the analyses on these two forms of co-perpetration have generally focused on contrasting the different definitional criteria that they rely on to distinguish between principals and accessories to a group crime, this article shifts the focus to one legal element that, although common for both theories, has actually caused a deeper dissonance in the topical case law of the international courts and tribunals: the ‘common plan’ requirement. It is argued that the varying interpretations of this element have given rise to three materially distinct constructions of co-perpetration responsibility in international criminal law. Several normative and practical concerns stemming from the adoption of broad definitions for the common plan element, and the related idea of ascribing responsibility for ‘excess’ crimes of the executed plan, are analyzed to emphasize the need for having a critical discussion on this element of co-perpetration.

What role have international legal scholars played in the development of international criminal law? Building on recent studies of the citation practices of international courts, the article provides an empirical assessment of the use and functions of citations to scholarly writings in the judgments of international criminal courts and tribunals. Using a mixed-methods approach, the article combines: a) a quantitative analysis of judgments interpreting the law of war crimes across four international and hybrid courts; with b) qualitative interviews with judges and legal officers at the International Criminal Court (ICC), the ad hoc Tribunals, and the Special Court for Sierra Leone (SCSL). The article argues that scholarly writings have been strikingly visible in the judgments of international criminal courts and tribunals, and especially at the ICC, which entails significant implications for the functions of academic writings and the role of international legal scholars.

On 9 April 2018, the Prosecutor of the International Criminal Court filed a request seeking the composition of a Pre-Trial Chamber, in order to decide whether the Court has territorial jurisdiction over the Rohingya deportation from Myanmar to Bangladesh as a crime against humanity. This filing is a first for the Court on at least two fronts; it is the first time the Prosecutor has asked the Court to interpret Article 12(2)(a) and apply qualified territoriality; it is also the first time the Prosecutor has asked for a ruling on jurisdiction under Article 19(3).

This study explores certain procedural questions emerging from this request, such as the Court’s authority to decide while its jurisdiction is ‘dormant’; the function of Article 19(3) within the Rome Statute’s overall system concerning jurisdictional determinations; issuing a decision on jurisdiction, while avoiding prejudice to subsequent proceedings and without rendering meaningless the right to challenge jurisdiction under Article 19(2) of the Statute. The article accepts that the request is a step in the right direction, as it signals the Prosecutor’s determination to investigate the Rohingya crisis. However, the manner and timing of its presentation give rise to plausible claims of incompatibility with the Court’s procedural framework. Arguably, the Court may well instruct the Prosecutor to assume the risk of wasting precious resources and proceed with further investigations, pending the final determination of the jurisdictional question at a later stage.