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Chapter 5 examines two subtle forms of backlash politics: bureaucratic and budgetary restrictions. Using examples from the Inter-American Commission on Human Rights and the ICC, this chapter explains why states turn to these bureaucratic and budgetary levers to undermine international courts. By imposing bureaucratic restrictions and tightening the tribunals’ purse strings, states and political elites can undermine the structural, adjudicative, and normative authority of courts. While this form of backlash politics does not garner the same attention as withdrawals or threatened substitutions, as the case studies show, it can be equally damaging. Moreover, because of the tribunals’ abiding dependence on member states for material and staff support, it is particularly difficult for the tribunals to guard against this form of backlash.
Chapter 4 focuses on the second manifestation of backlash politics: the creation of alternate or substitute justice mechanisms. This chapter considers how the tribunals’ dependency on member states, normative discontent, the domestic implications of international human rights and criminal adjudication, and the likelihood of future repression prompted a set of African Union (AU) member states to try to orchestrate a mass walkout of the International Criminal Court (ICC) and the establishment of a new, tri-chamber AU court that would supplant – but not fully replace – the ICC’s jurisdiction. The chapter then pivots to Latin America and examines a similar effort led by Venezuela to create a UNASUR human rights court that would supplant the Inter-American Human Rights System.
Chapter 4 delves into the practice of the international judiciary and, specifically, international war crimes tribunals and the International Court of Justice (ICJ). By analysing the approaches of post–World War II tribunals, the committee established to review the 1999 NATO bombing campaign in the Former Yugoslavia, the Special Court for Sierra Leone, and the International Criminal Court, the first part of the chapter reflects on the conceptual, normative, and practical limitations of international criminal law. The second part provides a critical reading of two important ICJ cases, the Nuclear Weapons Advisory Opinion and the Armed Activities case (Congo v. Uganda), dealing respectively with the ecological devastation of nuclear weapons and pillage of natural resources in the Congo. The chapter ultimately contends that international justice, both in its criminal and inter-state dimensions, is concerned about individual/state agency, quantifiable harm, and its proximate causes. Thinking in these narrow terms about the ecological impacts of militarism and resource extraction associated with conflict fails to grasp the structural dimensions of the problem, the plurality of actors involved, and the obligations owed to other human and non-human beings.
Chapter 6 undertakes a detailed study of the jurisdictional provisions that govern the crime of aggression (Articles 15bis and 15ter). In contrast to the ICC’s ordinary jurisdictional regime, the provisions allow States Parties to shield their nationals, and entirely insulate the nationals of non-States Parties, from prosecution, except in the case of Security Council referral. The chapter considers the legality of this regime. It then examines the different interpretations of the jurisdictional provisions offered by States and commentators, and the effect of the resolution under which the ICC Assembly of States Parties (ASP) activated the Court’s jurisdiction in 2017. Based on a detailed examination of the jurisdictional provisions, relevant ICC ASP resolutions, and the governing amendment provision, the chapter sets out exactly who is subject to the ICC’s jurisdiction. It also examines the requirements of opt-out declarations, the role of Security Council determinations as to the existence of an act of aggression, the expected operation of the Pre-Trial Division filter, and the effect of a Security Council referral.
Chapter 1 provides an overview of historic efforts to criminalise the unlawful use of inter-State armed force, culminating in the adoption of the crime of aggression amendments at the Review Conference of the Rome Statute in 2010 and the activation of the International Criminal Court’s jurisdiction over the crime in 2017. In the course of tracing this history, the chapter explains the political and legal issues that prevented States from reaching earlier agreement over the inclusion of the crime of aggression under the International Criminal Court’s jurisdiction. The chapter also outlines the approach of the balance of the book.
Chapter 2 counters each of the policy arguments that have been mounted against the criminalisation of State acts of aggression, including arguments relating to uncertainties surrounding the prohibition of the use of force; that acts of aggression are too complex an episode for adjudication by a criminal tribunal; that the criminalisation of aggression will politicise the ICC; that there is a risk of a fragmentation of relevant rules of international law caused by differing decisions of the ICC, the UN Security Council, and the International Court of Justice; and claims that the criminalisation of acts of aggression will have a chilling effect on States’ willingness to use force when they should (namely, to prevent atrocity crimes). The dissection of such arguments demonstrates that each objection is misguided and sets out the case in favour of criminalisation. The chapter also assesses the geopolitical significance of the crime, considering the extent to which the criminalisation of the unlawful use of force represents a shift in the balance between power and law. Finally, the chapter examines the likely impact of the crime of aggression on the rules of the jus ad bellum.
Chapter 7 analyses a range of practical issues that the ICC can expect to encounter in prosecuting the crime of aggression, including implications for judicial elections and the staffing of the Court; the identification of the ‘victims’ of the crime for the purposes of victims’ participation and reparation; and how the obligation of States Parties to cooperate with the Court in the investigation and prosecution of Rome Statute crimes will work in relation to aggression. The chapter next considers the issues likely to arise in the context of domestic prosecutions, including the bases of criminal jurisdiction that may be relied upon, and challenges that will arise, including those relating to immunities, securing the presence of the accused and the necessary evidence, as well as the taint of victor’s justice and the risk associated with non-expert judges interpreting the definition of the crime of aggression. The chapter also canvasses the contemplated review of the amendments and suggests proposals for reform. Finally, the chapter concludes with an assessment of the geopolitical impact of the crime of aggression amendments.
The adoption of the Rome Statute of the International Criminal Court (ICC) was widely lauded as a success with regard to the recognition and potential prosecution of conflict-related sexual violence. More than twenty years later, however, many observers are disillusioned with the ICC’s dire track record concerning the implementation of its progressive legal framework. In many cases, the Court and particularly its Prosecutor have been criticized for failing to adequately address and prioritize sexual violence, culminating in only a single final conviction since 2002. Nevertheless, the ICC’s emerging practice shows progress with regard to the conceptual understanding of conflict-related sexual violence and the realization of the Statute’s full potential in ensuring accountability for sexual crimes. Taking into account the evolving jurisprudence, the Article explores the persisting challenges and the perceived gap between aspirations and reality regarding the prosecution of sexual violence at the ICC.
After the crime of aggression was adopted under the Rome Statute of the International Criminal Court, Carrie McDougall used her intimate involvement in the crime's negotiations, combined with extensive scholarly reflection to produce the first and most comprehensive academic study. This updated second edition offers an exhaustive and sophisticated legal analysis of the crime's definition, as well as the provisions governing the ICC's exercise of jurisdiction over the crime. It explores the desirability of holding individuals to account for unlawful uses of inter-State armed force, the geo-political significance of the crime and a range of practical issues likely to arise in prosecutions before both the ICC and domestic courts. This book is highly relevant to all academics and practitioners interested in the crime of aggression, as well as broader issues relating to the prohibition of the use of force, international criminal law and the ICC.
More than 20 years on from the signing of the Rome Statute, delivering victim-centred justice through reparations has been fraught with legal and practical challenges. The Court’s jurisprudence on reparations only began to emerge from 2012 and struggles to find purchase on implementation on the ground. In its first few cases of Lubanga, Katanga, and Al Mahdi the eligibility and forms of reparations have been limited to certain victims, subject to years of litigation, and faced difficulties in delivery due to ongoing insecurity. This is perhaps felt most acutely in the Bemba case, where more than 5,000 victims of murder, rape and pillage were waiting for redress, and the defendant was not indigent, but where he was later acquitted on appeal, thereby extinguishing reparation proceedings. This article critically appraises the jurisprudence and practice of the International Criminal Court (ICC) on reparations. It looks at competing principles and rationales for reparations at the Court in light of comparative practice in international human rights law and transitional justice processes to consider what is needed to ensure that the ICC is able to deliver on its reparations mandate. An underpinning argument is that reparations at the ICC cannot be seen in isolation from other reparation practices in the states where the Court operates. Reparative complementarity for victims of international crimes is essential to maximize the positive impact that the fulfilment of this right can have on victims and not to sacrifice the legitimacy of the Court, nor quixotically strive for the impossible.
Commentators now regularly declare that the International Criminal court (ICC) – and international criminal law as a whole – is in crisis. It is certainly the case that the ICC faces a number of operational challenges, and that these challenges worry its defenders. However, one unexamined rationalist assumption is that the Court’s inability to deliver consistent outputs will mean waning influence. This article explores an alternative constructivist theory that the ICC produces diffuse social impacts that are not necessarily tied to its operating effectively. This theory is tested statistically using Google Trends data. Specifically, the article examines whether ICC intervention in a country is associated with more internet search for ‘human rights’. Taking this to be a measure of changing discourse in countries, the article finds that some types of ICC involvement are associated with a far higher interest in human rights, and that this interest only increases as ICC involvement extends in time. In short, despite its disappointments, evidence suggests that the ICC still serves a socio-pedagogical function. Though it does not fit well within a rational evaluation framework, this kind of information should be considered in ICC performance reviews.
The second case study chapter analyses the role of the International Criminal Court (ICC) in marketised global justice. A particular focus is on the treaty relationships between the ICC and other organisations, which integrate a global trade regime with a global criminal law regime. To demonstrate how this works, the Cotonou Partnership Agreement (CPA) is analysed. The CPA, a treaty regime that overlooks trade and political relationships between the European Union and seventy-nine African, Caribbean, and Pacific states, is presented as a mechanism that throws light on the ICC’s role in enabling and encasing. This integrated trade law and criminal law perspective offers a novel reading of the 2016 withdrawal announcements of three African states from the ICC. It also presents the reading of new policies by the ICC (in response to the backlash against it) as a ‘re-brand’ and therefore as deeper integration with the market.
European countries are seen as strong supporters of international adjudicatory institutions related to human rights and international criminal law, while the USA has generally been more skeptical about international courts and tribunals. While positions of the USA and Europe have generally been similar in relation to tribunals examining issues to trade and investment, for example. More recently and especially since the election of President Trump, the USA’s position towards all international courts and tribunals, including on matters of international economic law. The election of President Trump has resulted in a profound antagonism towards international courts and tribunals, and multilateral institutions more generally, in both words and facts. Differently, European countries, guided in large part by the European Union, have broadly maintained their support for international courts and tribunals, including trade related courts, and have voiced their desire for substantial changes in investor-state dispute resolution mechanisms. In both cases, European countries have not tried to dissociate from those courts, but rather, have argued for stronger, clearer and more permanent dispute resolution mechanisms.
This chapter focuses on the 2007 events in the Juba Peace Talks between the Lord’s Resistance Army/Movement (LRA/M) and the Government of Uganda. Entering the year with a frayed relationship between the LRA/M and the mediator due to the lack of activity to deal decisively with Ugandan army attacks on the LRA as it was trying to assemble as part of negotiations, 2007 brought to the fore the challenging internal dynamics of the LRA/M. These included internal distrust and sabotage but also increased engagement with an ever-growing collection of outside actors which pulled the LRA/M in different directions. One way of maintaining coherence was to exert control at the very heart of the LRA, which led to the killing by Joseph Kony of his deputy, Vincent Otti. The year 2007 also showed increased international engagement, including from the USA, which further confused possibilities for the peace talks: The international community signalled simultaneously its willingness to find a solution to the arrest warrants by the International Criminal Court as well as its support for a military strike against the LRA. In the broader dynamics of the talks, these contradictions further strengthened the impasse.
The Lord's Resistance Army (LRA) is one of Africa's most notorious armed rebel groups, having operated across Uganda, South Sudan, Sudan, the Central African Republic and the Democratic Republic of the Congo. When they entered the Juba Peace Talks with the Ugandan Government in 2006, the peace deal seemed like a gift to fighters who had for years barely been surviving in Central Africa's jungles. Yet the talks failed. Why? Based on exclusive interviews with LRA fighters and their notorious leader Joseph Kony, Mareike Schomerus provides insights into how the LRA experienced the Juba Talks, revealing developing dynamics and deep distrust within a conflict system and how these became entrenched through the peace negotiations. In so doing, Schomerus offers an explanation as to why current approaches to ending armed violence not only fail but how they actively contribute to their own failure, and calls for a new approach to contemporary peacemaking.
The Juba Peace Talks between the Lord’s Resistance Army/Movement (LRA/M) and the Government of Uganda were the most promising attempt to end one of Africa’s longest running wars, yet they ended without a peace agreement and are thus largely considered a failure. This chapter unpacks the lessons that the Juba Talks offer for contemporary peacemaking: The need to understand the importance of the developing dynamics and how individuals experienced the peace talks; the phenomenon that peace talks can entrench, rather than transform, violent conflicts; and the challenges in researching and documenting these dynamics and entrenchments. The chapter concludes that the LRA/M to a great extent maintained its reputation as an unreliable and violent negotiation partner torn apart by infighting. The Government of Uganda made few political concessions and instead relief on military intervention; international actors failed to establish themselves as principled with clear guidelines. These dynamics had been present in the conflict and continued during the Juba Talks and beyond, confirming the LRA/M’s perception of being trapped in a hostile and unchangeable system. Only with a holistic approach to managing the ebbs and flows of political conflict can interaction and systems in entrenched situations be changed over the long term.
This chapter gives a detailed and dramatic account of the first year of the Juba Peace Talks between the Lord’s Resistance Army/Movement (LRA/M) and the Government of Uganda. It highlights the many tensions and contradictions that occurred, for example, the pressure to bring LRA senior commanders to the table while they feared for their security, Ugandan government insistence to put a deadline on the talks, the lack of capacity within the LRA/M delegation to deliver negotiation papers, the technical and military challenge to have the LRA fighters assemble, the contradictions within international approaches that simultaneously supported the ICC while also requesting that to back off. Ownership of the process became complex for the LRA/M who sought broad civil society participation while aiming to maintain their powerful hold on the process. In offering a narrative of the convoluted and complex events of this first year of peace talks, the chapter also argues that the developing dynamics of the talks made the pursuit of peace not just an unthankful but rather a damaging experience: For the LRA/M, the start to the negotiations was an experience of continuation, with existing political and military power relations entrenched, rather than transformed.
In July 2020 the International Criminal Court opened the trial in the Al Hassan case. For the first time in the history of international criminal justice a defendant is being tried with the charge of the war crime of sentencing or execution without due process in the context of a non-international armed conflict. Together with its equivalent in international armed conflicts – the war crime of denying a fair trial – this offence falls within the category of the war crimes of denying judicial guarantees. Although there are differences in their constitutive elements, both offences prohibit states and armed non-state actors from depriving prisoners of war and civilians of certain minimum judicial guarantees. The provisions that regulate these two crimes, however, present interpretative and practical issues which, so far, have not received sufficient consideration. Most notably, the material elements of the offences raise a range of interpretative doubts and are of cumbersome application. The objectives of the article are (i) to identify the issues posed by the material elements of the war crimes of denying judicial guarantees, (ii) to warn of the pitfalls hidden by the interpretation of the offences, and (iii) to trigger the debate on the issues that the crimes raise.
Advances in mobile phone technology and social media have created a world where the volume of information generated and shared is outpacing the ability of humans to review and use that data. Machine learning (ML) models and “big data” analytical tools have the power to ease that burden by making sense of this information and providing insights that might not otherwise exist. In the context of international criminal and human rights law, ML is being used for a variety of purposes, including to uncover mass graves in Mexico, find evidence of homes and schools destroyed in Darfur, detect fake videos and doctored evidence, predict the outcomes of judicial hearings at the European Court of Human Rights, and gather evidence of war crimes in Syria. ML models are also increasingly being incorporated by States into weapon systems in order to better enable targeting systems to distinguish between civilians, allied soldiers and enemy combatants or even inform decision-making for military attacks.
The same technology, however, also comes with significant risks. ML models and big data analytics are highly susceptible to common human biases. As a result of these biases, ML models have the potential to reinforce and even accelerate existing racial, political or gender inequalities, and can also paint a misleading and distorted picture of the facts on the ground. This article discusses how common human biases can impact ML models and big data analytics, and examines what legal implications these biases can have under international criminal law and international humanitarian law.
The 1990s saw a systemic shift from the liberal post–World War II international order of liberal multilateralism (LIO I) to a post–Cold War international order of postnational liberalism (LIO II). LIO II has not been only rule-based but has openly pursued a liberal social purpose with a significant amount of authority beyond the nation-state. While postnational liberal institutions helped increase overall well-being globally, they were criticized for using double standards and institutionalizing state inequality. We argue that these institutional features of the postnational LIO II led to legitimation problems, which explain both the current wave of contestations and the strategies chosen by different contestants. We develop our argument first by mapping the growing liberal intrusiveness of international institutions. Second, we demonstrate the increased level and variety of contestations in international security and international refugee law. We show that increased liberal intrusiveness has led to a variety of contestation strategies, the choice of which is affected by the preference of a contestant regarding postnational liberalism and its power within the contested institution.