International Criminal Court

A Prescription for Optimism – Judge Kim Prost on the Future of the International Criminal Court

Judge Kim Prost was elected as Judge of the International Criminal Court (ICC) in 2018, for a term of nine years. Due to her international expertise, Judge Prost contributed to the United Nations Convention Against Transnational Organized Crime, and the United Nations Convention Against Corruption. Judge Prost also served as a member of the Canadian delegation for the negotiation of the Rome Statute – the legislation that governs the International Criminal Court.
No violence no hate speech

Some Observations on Hate Speech in Armed Conflicts

In proceedings instituted before the International Court of Justice, The Gambia alleged that Myanmar’s treatment of the Rohingya people breached the Genocide Convention, relying in part on the expressions of hate by Myanmar as evidence of the special intent required. Professor Rikhof recently wrote an article about hate speech in international criminal law in this Journal The-ICC-and-Hate-Speech. In this article I will offer some thoughts on the hate speech in The Gambia’s pleadings, the arguments before the International Court of Justice (ICJ) and the only conviction this year at the International Criminal Court (ICC) in the Ntaganda case from a Canadian legal perspective.
Rohingya refugees entering Bangladesh

Prosecutor-initiated Investigation Authorized into Crimes Against Rohingya with Bangladesh Territorial Element

On November 14, 2019, Pre-Trial Chamber III authorized the Office of the Prosecutor to proceed with an investigation into alleged crimes committed against the Rohingya people of Myanmar. This decision flows from the September 6, 2018 novel conclusions of Pre-Trial Chamber I that the International Criminal Court (the “Court” or ICC) can assert jurisdiction over the alleged deportation of the Rohingya people from Myanmar - even though that State is not party to the Rome Statute of the International Criminal Court - to Bangladesh which is a State party.
Soldiers drive past the American Embassy

When is an alleged torturer "a person acting in an official capacity" according to the United Kingdom Supreme Court?

The United Kingdom Supreme Court (UKSC) held in R v. TRA that ‘persons acting in an official capacity’ who engage in torture contrary to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), as implemented in the UK by s. 134 of the Criminal Justice Act 1988 (CJA) as required by article 2(1) of the CAT, need not be State officials, but can be persons acting on behalf of non-State organizations which administer a locale in the capacity of de facto ‘governments.

Chasing Justice

The International Criminal Court’s Assembly of States Parties 2019 (ASP) at The Hague is only a few days away. While I look forward to the new experience at The Hague, I continue to consider how the Hague can bring justice to the people of my country, Syria.
Bosco Ntaganda

Ntaganda is sentenced to 30 years

Bosco Ntaganda was sentenced to 30 years based on eighteen charges arising from attacks made on Lendu people in the Ituri region of the Democratic Republic of the Congo in 2002 and 2003. This Journal published a commentary how-bosco-ntaganda-was-convicted-as-an-indirect-co-perpetrator-in-eighteen-crimes and later early-submissions-about-how-ntaganda-reparations-hearings-should-proceed. This comment will explore the Trial Chamber’s reasons for his 30-year sentence.
Extraordinary Chambers in the Courts of Cambodia

Who Are Most Responsible in International Criminal Law?

On 28 November 2019, a hearing will begin before the Pre-Trial Chamber (PTC) of the Extraordinary Chambers in the Court of Cambodia (ECCC) in Case 003, the MEAS Muth case (see here while for an overview of the proceedings in the ECCC, see here). The hearing is an appeal of the two separate closing orders of the national and international co-investigating judges of November 28, 2018 resulting from a disagreement between them about whether MEAS Muth was subject to the ECCC’s personal jurisdiction as “a senior leader or one of the persons most responsible for crimes committed during the period of 17 April 1975 to 6 January 1979 in the Democratic Kampuchea” (DK)(article 2 of the law establishing the ECCC, see here). As this issue is also at the heart of the two other remaining cases before the ECCC, namely the YIM Tith and AO An case and the PTC has already found that another person, IM Chaem, did not fall within this category (see here), an overview of this notion of ‘most responsible’ is timely.
Mr Laurent Gbagbo and Mr Charles Blé Goudé

The ICC and Hate Speech

On July 16, 2019, an ICC Trial Chamber issued the written reasons for its oral decision of January 15, 2019 (see here) in the case of Laurent Gbagbo and Charles Blé Goudé pertaining to the situation in the Republic of Côte D’Ivoire acquitting them of all charges and ordering their immediate release. The decision was split, with Judges Tarfusser and Henderson in the majority (with their reasons filed as a separate opinion by Judge Henderson, which has been removed from the ICC website but can be found here) and a strong dissent by Judge Herrera Cabuccia (which has also been removed from the ICC website but can be found here). The Prosecutor has appealed the decision (see here).
Bosco Ntaganda

Early submissions about how Ntaganda reparations hearings should proceed

The second Lubanga Appeals Chamber decision on reparations (Lubanga II) was released shortly after the conviction of one of his confederates, Bosco Ntaganda, of five crimes against humanity and 13 counts of war crimes, including one arising from the use of child soldiers all in the Ituri province of the Congo. He was one of Lubanga’s commanders. Ntaganda has appealed his conviction. The sentencing hearing is scheduled for November 7, 2019 (here). The Appeals Chamber decision has been the subject of descriptive commentary (here).
timeline of International crim court

The ICC’s Investigation Problem and Safeguarding Justice for the Rohingya

As of the date of writing, Pre-Trial Chamber III of the International Criminal Court (ICC) is preparing to decide whether the Situation in Bangladesh/Myanmar is to become the Office of the Prosecutor’s (OTP) twelfth ongoing investigation going into 2020 (ICC Proposed Budget 2020, at para 107). As the OTP’s investigatory case load continues to increase, it seems natural to review whether it has the necessary capacity to deal with this increase in workload. The “investigatory capacity” of the ICC to carry out investigations while retaining the ability to perform such investigations within the standards required of criminal proceedings that respect the interests of justice, may have been taken for granted for too long. It is particularly notable that the Rome Statute provides no limitation to the number of situations that can be referred to the Prosecutor. This raises the overall issue about whether some fundamental changes in the OTP’s investigatory policies are needed.
Protest of Tahoe Resources Teaser

Transnational Justice for Guatemalan Victims of Human Rights Violations at a Canadian-owned Mine in a Dispute About Lack of Local Consultation

After a six-year legal battle, a group of Guatemalan plaintiffs has achieved a landmark victory in the emerging field of transnational litigation for business-related abuses. It is the first time in Canadian courts that foreign citizens have reached a successful conclusion to a lawsuit against a Canadian mining company for human rights violations.
Sergei Magnitsky

Absurdity and Abuse: European Court of Human Rights Finds Russia Violated Magnitsky's Rights

The decision of the European Court reflects existing jurisprudence and is not particularly novel in its conclusions or interpretations of Convention articles. Rather, this case is notable because its facts spawned laws in various countries that now target the property of foreign nationals who have committed gross violations of internationally recognized human rights. The case is also a chilling illustration of how laws and due process institutions can be manipulated by government officials in an effort to cloak with legitimacy clear violations of human rights.
The Judges of the International Criminal Court Teaser

ICC Moot Court Competition 2019: Mooting Whether Humanitarian Intervention Comes Within the Frame of the Crime of Aggression

Are all wars aggressive? Or are some just? What does it mean for a state to wage a just war, and how do we punish those who wage aggressive wars? These are questions that the international community continues to wrestle with. On July 17, 2018, new light was shed on this distinction when the International Criminal Court (ICC) finally acquired jurisdiction over the crime of aggression. Both the Nuremberg and Tokyo Tribunals, created after World War II, had jurisdiction to hold individuals criminally responsible for the aggressive military policies of the Japanese and German regimes. Nonetheless, international consensus on the definition of the crime of aggression has proven elusive for half a century. This disagreement over the crime of aggression was a major obstacle to the formation of the ICC in 2002. It took a further eight years before the Kampala Amendments to the Rome Statute were adopted, and an additional eight years before these amendments came into force, creating a definition of the crime of aggression for the Rome Statute of the ICC.
Scorched vehicles

PART III: Crimes Against Humanity in Cameroon

This is the third and final article in the Global Justice Journal series on the crisis in Cameroon. Part I of the series, Cameroon’s Unfolding-Catastrophe: Contextualizing The Crisis (June 17, 2019) provided the background ongoing conflict in the Anglophone regions of Cameroon, drawing on the ground-breaking report launched by the Centre for Human rights and Democracy in Africa and the Raoul Wallenberg Centre in June 2019 entitled Cameroon’s Unfolding Catastrophe: Evidence of Human Rights Violations and Crimes against Humanity (June 3, 2019)
Free Gaza movement

Comoros referral: The Appeals Chamber of the International Criminal Court gives guidance to the Prosecutor

On September 2, the Appeals Chamber of the International Criminal Court (ICC) ordered the Prosecutor (OTP) to review the decision not to proceed with an investigation of a situation referred to it by the Union of Comoros concerning the May 31, 2010 Israeli raid on a humanitarian aid flotilla bound for the Gaza Strip on the grounds of ‘insufficient gravity’ (here) with a partial dissent (here).
Bosco Ntaganda

How Bosco Ntaganda was convicted as an “indirect co-perpetrator” in eighteen crimes

Bosco Ntaganda was found guilty of 18 crimes against humanity and war crimes by a Trial Chamber of the International Court of Justice (ICC) on July 8, 2019 (here). He was convicted as a direct perpetrator in three crimes as well as an indirect co-perpetrator in those three and the 15 other crimes. This article will explore how the Trial Chamber applied the nascent law of ‘indirect co-perpetration’.
Soviet Tank

Book Review: Payam Akhavan Interviews Noah Weisbord About his Book “The Crime of Aggression: The Quest for Justice in an Age of Drones, Cyberattacks, Insurgents, and Autocrats.”

On 15 December 2017, States Parties to the Rome Statute, meeting in New York, agreed to activate the ICC’s jurisdiction over the crime of aggression. For the first time since the Nuremberg and Tokyo tribunals, it will be possible to hold leaders individually responsible for waging wars of aggression. Professor Noah Weisbord is a (if not the) leading authority on the crime of aggression under international law.