Ch. 16-International Human Rights

I ntern ational Human Rights

PHILIP

ALSTON

Citation. Philip Alston, International Human Rights (New York, NYU Law, 2024).

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Chapter 16. Responding to Mass Violations: Prosecutions and Transitional Justice

This chapter looks at the responses of international law in general, and of the international human rights regime in particular, to mass violations of human rights and humanitarian law. The primary focus is on the evolution of the field of international criminal law (ICL) since the Nuremberg judgment, with emphasis on the role of the International Criminal Court (ICC). The ICC was created by the Rome Statute of 1998, and brought into existence when the Statute entered into force on 1 July 2002, after sixty states had ratified the treaty. The ad hoc tribunals set up by the Security Council in relation to the former Yugoslavia in 1993 and Rwanda in 1994 played a crucial role in developing both the legal and procedural foundations of this body of law.674

THE EVOLUTION OF INTERNATIONAL CRIMINAL LAW

The creation of an international criminal tribunal was agreed upon in the Treaty of Versailles after World War I. Although German Kaiser Wilhelm II was the principal target, the Netherlands refused to extradite him, and a few desultory trials were held in Leipzig in 1921 before German courts. The Nuremberg and Tokyo war crimes trials of the late 1940s set important precedents but the Cold War quickly dimmed enthusiasm for institutionalizing such a system on a continuing global basis. While scholars such as Georg Schwarzenberger and Cherif Bassiouni sought to rekindle the debates,675 it was not until after the fall of the Berlin Wall in 1989, combined with the outrage generated by well-documented atrocities in the former Yugoslavia and Rwanda in the early 1990s, that sufficient political will could be mustered. The first step was the creation of the two ad hoc tribunals, followed by agreement on the ICC Statute in 1998. The record of the ICC over the past two decades has been somewhat chequered, with various missteps along the way. By 2019, the barrage of criticism of the Court’s record was so great that the Assembly of States Parties appointed a group of independent experts to provide ‘concrete, achievable and actionable recommendations aimed at enhancing the performance, efficiency and effectiveness of the Court and the Rome Statute system as a whole’. The review, chaired by Richard Goldstone, made 384 recommendations in a 348-page report.676 Nevertheless, most observers acknowledge that the court’s very existence is an immense achievement, that the standards enshrined in the Statute have definitively changed the legal landscape, and that much potential remains to be realized. The flurry of activity around the situations in Ukraine and Gaza since 2022 has also breathed new life into the overall ICL system.

When the ad hoc tribunals were established, they were given primacy over national court systems, which had to yield to the relevant international tribunal. Over time, both began to develop a more nuanced division of responsibility with the national legal systems. In contrast, Articles 17 and 19 of the Rome Statute embody the crucial principle of complementarity which ensures that primacy is given to national-level jurisdictions, as long as the relevant case is being ‘genuinely’ investigated or prosecuted by a state that has jurisdiction.677

Despite the many overlaps between ICL on the one hand, and human rights and humanitarian law on the other, they are by no means synonymous, as noted by Darryl Robinson, in ‘The Identity Crisis of International Criminal Law’, 21 Leiden J. Int’l L (2008) 925, at 946:

… ICL practitioners often assume that the ICL norms are coextensive with their human rights or humanitarian law counterparts, and uncritically transplant concepts and jurisprudence from other domains to flesh out their content. Such assumptions overlook the fact that these bodies of law have different purposes and consequences and thus entail different philosophical commitments.

Human rights law and humanitarian law apply to collective entities – states or parties to conflict. They focus on systems, seeking to improve the practices of states (or parties to

674 See generally R. Cryer, D. Robinson and S. Vasiliev, An Introduction to International Criminal Law and Procedure (4th edn., 2019).

675 See G. Schwarzenberger, ‘The Problem of an International Criminal Law’, 3 Current Legal Problems (1950) 263; and M. C. Bassiouni, International Criminal Law (3 vols., 3rd edn., 2008).

676 Independent Expert Review of the International Criminal Court and the Rome Statute System: Final Report (30 September 2020).

677 P. Seils, Handbook on Complementarity (International Center for Transitional Justice, 2016).

conflict) in order to advance protection of and respect for identified beneficiaries. The remedies in each area of law are roughly comparable to civil remedies, such as a cessation of the conduct, an apology, an undertaking of non-repetition, and possibly compensation or other efforts to restore the status quo ante.

The primary focus of ICL, on the other hand, is on the culpability of individuals. … [T]he scope of ICL is much narrower: it addresses only the most serious crimes of concern to the international community as a whole. Moreover, ICL is enforced through a particularly robust method – the arrest, stigmatization, punishment, and imprisonment of individual human beings found responsible for crimes. …

[Two kinds of] substantive and structural conflation [are common]. The crude form is the assumption that, because a prohibition is recognized in human rights or humanitarian law, it therefore must be (or ought to be) criminalized in ICL as well. Such arguments tend to overlook questions of legality and personal culpability and whether criminal law is the appropriate tool to deal with the problem.

The more subtle, and more interesting, variation occurs with respect to those norms that are indisputably recognized as criminalized in ICL, and which are drawn from human rights law or humanitarian law. Where an ICL prohibition is drawn from another area of law, it is understandable to assume that the norms have the same scope as they have in their original domain. Through the resulting unreflective transplantation or mimicry of human rights or humanitarian law norms, norms are absorbed into criminal law without awareness that they may be novel to criminal law and hence without scrutiny as to whether they comply with the fundamental principles peculiar to criminal law.

The existing regime of ICL accords priority to four ‘core’ crimes: genocide, crimes against humanity, war crimes, and the crime of aggression. These are increasingly referred to as ‘atrocity crimes’, a label that, as we shall see below, is not without its critics. International law recognizes various other crimes, including piracy, slavery, torture, terrorism and drug trafficking, and new crimes have also been proposed such as ‘ecocide’678 and ‘domicide’ (the systematic and deliberate mass destruction of homes during violent conflict (UN Doc. A/77/190 (2022)).

In the materials that follow, we first take note of the legacy of the ICTY and ICTR, the work of which significantly influenced today’s ICC. We then introduce the ICC and the scope of its jurisdiction, before considering definitions of the core crimes and examining a major recent case.

A. INTERNATIONAL CRIMINAL TRIBUNALS FOR THE FORMER YUGOSLAVIA AND RWANDA

The two ad hoc tribunals were the result of very specific historical circumstances, as Milena Sterio and Michael Scharf explain in their introduction to The Legacy of Ad Hoc Tribunals in International Criminal Law: Assessing the ICTY's and the ICTR's Most Significant Legal Accomplishments (2019) 1:

Prior to its dissolution in 1991–92, Yugoslavia was not so much an ethnic melting pot as a boiling cauldron of ethnic tension with deep historic roots. The ascent of a hardline Serbian nationalist government in Serbia headed by Slobodan Milosevic prompted Croatia and Slovenia to declare their independence on June 25, 1991, with Bosnia following suit on March 1, 1992. The Bosnian Serbs, under the leadership of their selfstyled president, Radovan Karadzic, and military leader, Ratko Mladic, immediately

678 Provisionally defined as ‘unlawful or wanton acts committed with knowledge that there is a substantial likelihood of severe and either widespread or long-term damage to the environment being caused by those acts’: Stop Ecocide Foundation, Independent Expert Panel for the Legal Definition of Ecocide (June 2021), Art. 8 ter (1); see also R. Mwanza, ‘The Right to a Healthy Environment as a Catalyst for the Codification of the Crime of Ecocide’, 117 AJIL Unbound (2023) 189; and C. G. Gonzalez, ‘Racial Capitalism, Climate Change, and Ecocide’, 41 Wisconsin Int’l L. J. (2024) 479 (‘the move to codify ecocide does not challenge the laws, institutions, or ideologies that reproduce racial capitalism’).

launched attacks against the Croatian and Muslim populations in northeast and southern Bosnia, with the goal of connecting Serb-populated regions in north and west Bosnia to Serbia in the east. Within a few months, the Serbs had expelled, killed, or imprisoned 90 percent of the 1.7 million non-Serbs who once lived in Serbian-held areas of Bosnia.

With Russia’s assumption of the permanent seat and veto of the Soviet Union in the Security Council in December 1991, the Security Council emerged from the Cold War paralysis of the previous forty years and was experiencing a rare (though short-lived) era of cooperation. The first test for the reinvigorated Council was the deepening crisis in the Balkans. The Security Council adopted a series of measures aimed at restoring peace and halting the bloodshed, including imposing economic sanctions on Serbia, establishing a no-fly zone, creating safe areas, authorizing force to ensure the delivery of humanitarian aid, and excluding Serbia from participating in the General Assembly. Finally, on May 25, 1993, the Security Council adopted Resolution 827, establishing “an international tribunal for the sole purpose of prosecuting persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since January 1, 1991.” Within two years, the Tribunal had been set up at The Hague, its eleven judges had been elected by the General Assembly, its Chief Prosecutor had been selected by the Security Council, and its first trial was ready to begin.

While the ICTY was preparing its first case, a genocidal conflagration was ignited in the small African nation of Rwanda by the death of its Hutu president when his plane was shot down by a surface-to-air missile on April 6, 1994. Nearly 800,000 people (mostly of the minority Tutsi tribe) were slaughtered during the next hundred days at a rate nearly three times greater than the rate of the loss of Jewish lives during the Holocaust. When the massacres began in Rwanda, the Security Council’s first reaction was to withdraw nearly all the United Nations peacekeeping troops from the country for their safety. In July 1994, the Security Council established a Commission of Experts, which issued a report on October 2, 1994, confirming that genocide had been committed by the Hutus against the Tutsis and recommending the establishment of an International Criminal Tribunal to prosecute the perpetrators. A month later, on November 8, 1994, the Security Council adopted Resolution 955, providing for the establishment of a second ad hoc tribunal for Rwanda, which would have its own trial chambers to be headquartered in Arusha, Tanzania, but share the Prosecutor and the Appeals Chamber of the ICTY.

In 2010, the Security Council established the International Residual Mechanism for Criminal Tribunals (IRMCT) to carry out the remaining essential functions of the two ad hoc tribunals. Among its tasks are to locate and arrest the four remaining persons indicted by the ICTR, and assist national jurisdictions in handling requests related to prosecuting international crimes committed in the former Yugoslavia and Rwanda. The Council’s resolution (Res. 1966 of 2010) directed that the IRMCT ‘should be a small, temporary and efficient structure, whose functions and size will diminish over time, but it is currently scheduled to operate until the end of 2024.

Legacies of the Ad Hoc Tribunals

By the time the ICTY closed in December 2017, it had indicted 161 individuals, resulting in 91 convictions, 18 acquittals, and 13 cases being referred to national courts. Thirty-seven of those indicted either died (including, most notably, Slobodan Milošević, the former Serbian President) or had their indictments withdrawn. Other prominent defendants included Ratko Mladic, head of the Bosnian Serb army which carried out the Srebrenica massacre, sentenced to life imprisonment, and Radovan Karadžić, president of the Republika Srpska (a Serbian enclave in Bosnia) who evaded capture until 2008 and in 2016 was sentenced to 40 years in prison.

On its own legacy website, the ICTY claims to have ‘irreversibly changed the landscape of international humanitarian law, provided victims an opportunity to voice the horrors they witnessed and experienced, and proved that those suspected of bearing the greatest responsibility for atrocities committed during armed conflicts can be called to account’ (https://www.icty.org/).

The ICTR closed down in December 2015, having indicted 93 individuals, of whom 62 were convicted, 14 were acquitted or released, and two died before judgment. Those convicted included a former Rwandan Prime Minister, former army chief of staff, the former Defence Ministry chief of staff, as well as corporate and media figures.

On its legacy website, the ICTR notes that it was ‘at the forefront of the global fight against impunity, prosecuting those considered most responsible for the gravest crimes committed in 1994. … [I]ts legacy lays the foundation for a new era in international criminal justice’(https://unictr.irmct.org/). Sara Kendall and Sarah Nouwen, in ‘Speaking of Legacy: Toward an Ethos of Modesty at the International Criminal Tribunal for Rwanda’, 110 Am. J. Int’l L. (2016) 212 note, however, that the website ‘foregrounds ICTR trials without noting the thousands of domestic criminal trials that took place under Rwanda’s 1996 law governing the prosecution of genocide-related crimes or the prosecution of around 400,000 individuals through community-based gacaca courts.’ It ‘also claims that the ICTR has also led to “healing” without mentioning the work of other actors, such as civil society organizations and the Rwandan state. Meanwhile, accounts of decreasing political freedom in Rwanda are conspicuously absent.’

The following readings provide insights into different aspects of the legacy of the two tribunals.

CARSTEN

STAHN, THE ICTY IS DEAD! LONG LIVE THE ICTY! STAHN ET AL. (EDS.), LEGACIES OF THE INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA (2020) 71

Historically, the Tribunal went through different phases. … [It] was created in what we now view as the ‘heroic’ age of international justice. Like other criminal institutions, the ICTY had teething problems. Initially, there was a feeling that the Tribunal would not get off the ground. Some feared that a failure of the ICTY ‘would also mark the end of any international criminal justice’. Relatively small cases broke the ice. The ICTY used a ‘pyramid strategy’, through which it sought to gradually build cases against senior leaders through investigation and prosecution of mid- or low-level perpetrators. The Tadić case679 became the signature case … although Duško Tadić was overall a relatively minor figure in the Yugoslav conflict. …

… Tadić’s story formed the backbone of some of the most important legal moments in the development of international criminal justice: the famous 1995 Interlocutory Appeal on Jurisdiction, which articulated the modern law on non-international armed conflict, or the legendary 1999 Appeals Judgment which reframed the test for the qualification of international armed conflicts (‘overall control’) and (re-) invented Joint Criminal Enterprise (JCE) beyond its post-Second World War context. Most importantly, Tadić illustrated like hardly any other case the emancipation of international criminal justice in the United Nations system after 1945. Both ad hoc tribunals asserted their independence from their creator. Criminal adjudication was formally separated from the executive authority.

Then, the Tribunal faced the ‘big fish versus small fish’ dilemma. It was questionable whether the ICTY had enough power to go after the most responsible leaders. With growing arrests through international forces and political pressure, the tribunal was expected to try high-level defendants. It ran mega trials, like the Slobodan Milošević trial. This practice showed the complexity of cases, but also the risks of extensive charging and the limits of self-representation. The ICTY became a laboratory for procedural adjustment and innovation. It sought to devise a system that is best suited to atrocity crimes. Initially, rules were largely drafted in analogy to domestic systems. But they had to adjust to the context of international criminal proceedings. One of the biggest successes of the procedural law is that it managed to identify certain weaknesses of a purely adversarial culture and to develop certain special rules for effective adjudication of international crimes. In some areas, such as sexual and gender-based violence, they are ahead of domestic systems.

Over time, the tribunal almost became a victim of its success. Its caseload grew. This led to heightened expectations by affected communities, including victim groups. But it also posed capacity constraints. States soon became interested in downsizing. The tribunal solved this partly through the Completion Strategy. It had

679 Prosecutor v Dusko Tadić (Appeals Chamber Decision) IT- 94- 1- AR72 (2 October 1995).

some positive spin-offs. It led to a ‘rediscovery of complementarity’, which has become crucial for other international criminal courts and tribunals as well. …

A … major innovation of the ICTY is that it adjusted the law to changing patterns of violence, including the role of non- State actors in the commission of crimes. This is reflected, inter alia, in the wide definition of armed conflict, which includes conflicts between armed groups, the reading of the policy element of crimes against humanity, or the extension of torture or command responsibility to civilian structures. The ICTY also adapted to changing means of warfare. It established, inter alia, that rape was used as a weapon of war in the municipality of Foča, and that the shelling and sniping of Sarajevo constituted an act of terror against the civilian population.

Through its jurisprudence, the ICTY tried not only to establish individual criminal responsibility but to contribute to the coherence of the international legal order. The Tribunal partly constituted the law that it enacted. In particular, it has taken an active stance on the development of international customary law. It found that opinio juris may be more important than practice for the establishment of customary law in the humanitarian field and grounded crimes in custom. The reliance on customary law as a source was also a means to preserve its own legacy, namely to ensure that other courts follow its interpretations.

The ICTY also had a significant impact within Serbia, as documented by Diane Orentlicher in Some Kind of Justice: The ICTY’s Impact in Bosnia and Serbia (2018) 424:

The ICTY helped catalyze a serious, if plainly incomplete, process of judicial reckoning in Serbia … . … [T]he [Office of the Prosecutor] bolstered the professionalism and independence of its Serbian partner … [and] Serbian lawyers’ participation in the ICTY’s Visiting Young Professionals and Liaison Prosecutors programs … helped seed a new generation of professionals committed to principles of impartial justice. …

The domestic institutions have always operated in a constrained environment, and have come under heightened pressure during the era of “reformed” nationalist leadership. Serbia’s government has … “actively engaged in creating a social environment where the prosecution of those responsible for war crimes, especially those who held medium or high ranks, has become virtually impossible.’ To be sure, recent reversals are not unusual. Looking to experience in other post-conflict settings, transitional justice processes are anything but “neat and straightforward” but instead are “complex and messy.” Progress is often followed by setbacks, which, in turn, might be followed by further advances.

… In time, what began as a modest enterprise can take root, deepen into a habit of accountability, mold public expectations and deepen a society’s moral commitments.

An overview of the legacy of the ad hoc tribunals is provided by Michael Scharf and Milena Sterio, in ‘Conclusion’ in Sterio and Scharf, p. 000 above, at 357:

… The tribunals have successfully prosecuted several defendants of genocide and other genocidal offenses; they have prosecuted defendants and developed important case law regarding crimes of sexual violence; they have fine-tuned various modes of liability useful toward the prosecution of various defendants, such as superior responsibility and joint criminal enterprise liability; they have established a legacy of cooperation with national prosecutorial authorities and an operational legacy regarding complex case management; they have developed a procedural legacy regarding international criminal proceedings, through the elaboration of sophisticated rules of procedure and evidence; and they have established a legacy of defense rights, applicable to all defendants, including those accused of the most heinous violations of international criminal law. On the other hand, the ICTY and the ICTR have been far less successful in achieving national reconciliation and goals of societal transformation. This may be an important lesson for future tribunals: while it may be appropriate to ask such future international criminal courts to render justice and

develop international criminal law, it may be futile to demand that such courts accomplish extrajudicial goals of societal change and reconciliation. …

Second, … the ICTY and the ICTR have contributed significantly to the development of international criminal law in both the normative as well as the operational sense. … [They] have established that the same principles of individual liability apply to international as well as to internal armed conflict; in addition, they have successfully convicted defendants of genocidal offenses, and thereby confirmed the importance of imposing genocide liability on particular defendants within particular conflicts. Moreover, the ICTY and the ICTR have developed case law on the prosecution of speech crimes, by imposing additional liability on defendants for inciting the commission of serious crimes within international criminal law. The tribunals have elaborated on various modes of liability, including superior responsibility and advanced modes of joint criminal enterprise, which have enabled the prosecution of nondirect perpetrators of international crimes. The ICTY and the ICTR have also focused on defense rights, by establishing that duress can be a mitigating factor in the imposition of a criminal sentence, and both tribunals have contributed to a sentencing legacy, by establishing a uniform and coherent sentencing approach in the field of international criminal law. In addition, the tribunals have created an operational legacy, by creating specific case management procedures and courtroom management techniques which ensure that international criminal trials proceed in a fair and just manner. …

While less has been written about the ICTR’s legacy, it too is both impressive and less comprehensive than once hoped, as noted by Sara Kendall and Sarah Nouwen, at p. 000 above, 218:

Perhaps the least contested element of the ICTR’s legacy is the fact that its case law has made significant contributions to doctrinal international criminal law and has demonstrated that individuals in certain positions can be held to account for grave crimes. The ICTR legacy website claims that the Tribunal is responsible for many inaugural moments in the field: it was “the first” international tribunal to enter a judgment for genocide; to interpret the definition of genocide set out in the 1948 Genocide Convention; to define rape in international criminal law and to recognize it as a means of perpetrating genocide; and, since Nuremberg, to issue a judgment against a former head of state, among other things. …

The Tribunal has also promoted international criminal law as a professional field. As anthropologist Nigel Eltringham has argued, “there can be no doubt that a significant legacy of the ICTR is . . . the creation of a cadre of lawyers and judges who are equipped to populate international courtrooms in the future.” …

Finally, the ICTR, like the ICTY, has helped make individual criminal accountability a response to mass atrocity. … The institutionalization of international criminal law has resulted in this particular conception of justice becoming more preeminent than alternative conceptions, such as restorative and distributive justice. The ICTR has thus contributed to the idea of international criminal law being the path towards “justice to all people, everywhere.” According to some commentators, the development and preservation of that legacy requires that the application of international criminal law becomes a standard and universal response to mass atrocity.

By rendering judgment against seventy defendants, the ICTR has “done” a considerable amount of retributive justice. The Tribunal promoted individual criminal responsibility for genocide, crimes against humanity, and war crimes in Rwanda and beyond, by holding people to account who might have otherwise escaped accountability. From the perspective of promoting the rule of law, the fact that it has prosecuted senior members of the former government, including a prime minister, is particularly significant, as it

demonstrates that even those once in the highest positions of power can be held legally accountable for their actions.

Nonetheless, the pro-accountability and anti-impunity message has been weakened by the fact that the ICTR has opened no cases against people with ties to the incumbent government for crimes allegedly committed by the RPF/Army during the 1994 conflict. According to … Alison Des Forges, at least 25,000 to 30,000 people, including civilians, may have been killed by the RPF. Des Forges argued that these killings were widespread and systematic rather than “unconnected crimes” carried out by individual soldiers, and that RPF commanders must have known about and at least tolerated these abuses. …

… Key among [the reasons why the ICTR did not move against the RPF] is the Tribunal’s extensive dependence upon the Rwandan government for cooperation, ranging from granting permission for its investigators to enter Rwanda to not blocking Rwandans from testifying before the ICTR. Rather than fearing international condemnation or even sanctions for noncooperation, the Rwandan government has managed to maintain financial and political support by leveraging the West’s guilt for its failures during the genocide

While the achievements of the ad hoc tribunals are important, along with their jurisprudential legacy, their perceived excesses and shortcomings also shaped the debates around a future ICC, as traced by Stuart Ford, in ‘The Impact of the Ad Hoc Tribunals on the International Criminal Court’, in Sterio and Scharf, p. 000 above, at 307:

While states had expressed a belief at their creation that the ad hoc tribunals would not have the ability to create new international law, the reality was slightly different. The text of the ICTY Statute was, for political reasons, quite vague about the details of the crimes within the jurisdiction of the court. This gave the judges considerable latitude to interpret the text. And interpret it they did. For example, in one of its earliest decisions, the ICTY Appeals Chamber held that the court had jurisdiction over crimes committed in noninternational conflicts, and that there was individual criminal responsibility for violations committed during noninternational conflicts. This was arguably inconsistent with the most straightforward reading of the Statute and contrary to the position taken by many states when these issues were debated during the negotiation of Additional Protocol II to the Geneva Conventions. Moreover, the ICTY Appeals Chamber justified this decision, in part, on the grounds that international law had moved away from a “Statesovereignty-oriented approach,” and had moved toward a “human-being-oriented approach.” In the same decision, the court went on to adopt a definition of “armed conflict” that was broader than that which states had accepted in the Additional Protocols. The decision “stunned” international lawyers with its breadth. And states were probably not happy to hear judges at the ICTY declare that state sovereignty was no longer at the center of international law.

While the Rome Statute ended up incorporating most of the changes to the laws of war that were pioneered by the judges at the ICTR and ICTY, states were concerned that the judges had gone too far in expanding the scope of international law. This made states nervous, particularly as many of the accused at international criminal tribunals are agents of a state. Thus, the drafters of the Rome Statute did several things designed to limit the ability of the judges at the ICC to create new international law.

One thing the drafters did was to define the crimes within the jurisdiction of the ICC in great detail. While the crime of genocide is laid out quite briefly in the Rome Statute, the definition of crimes against humanity has more than twenty sub-parts, and that of war crimes has more than fifty sub-parts. These crimes are then further expanded upon in the Elements of Crimes. Contrast this with the Statute of the ICTY, which is far less detailed. For example, the ICTY Statute simply lists “persecutions on political, racial and religious grounds” as a crime against humanity. The Rome Statute has a much longer and more

detailed definition of persecution. It is then further defined in a separate definitions section. The components of the crime are then also explained in the Elements of Crimes. The difference is even more striking for war crimes. The Statute of the ICTY granted the court jurisdiction over violations of “the laws and customs of war.” It then provided a nonexhaustive list of such violations. The Rome Statute takes a completely different approach. It grants the court jurisdiction over war crimes, but it provides the judges with an extremely detailed definition of war crimes. There is no provision in Article 8 of the Rome Statute like the open-ended “including but not limited to” language in Article 3 of the ICTY Statute. The effect is to constrain the ability of judges to expand the scope of international criminal law through their decisions.

Hybrid Courts

Before turning to the ICC, it should be noted that a range of hybrid or partly internationalized criminal courts have been set up. Laura Dickinson, in ‘The Promise of Hybrid Courts’, 97 Am. J. Int’l L. (2003) 295, at 310, argues that such bodies ‘may be more likely to be perceived as legitimate by local and international populations because both have representation on the court’. In addition, they increase the capacity of domestic legal institutions, and might facilitate broader adaptation and dissemination of the relevant norms and processes.

The most prominent examples include:

(i) the Special Court for Sierra Leone,680 set up following a civil war between 1991 and 2002. Sierra Leone appointed a minority of the judges, with the UN Secretary-General appointing the rest. Between 2002 and 2013, it convicted eight of thirteen persons indicted, including former President Charles Taylor, who was sentenced to 50 years’ imprisonment for war crimes and crimes against humanity.

(ii) the Extraordinary Chambers in the Courts of Cambodia,681 which conducted investigations and trials between 2006 and 2022. It will continue its operations until 2025, with a promotional mandate, and to consider reparations. The tribunal’s purpose was to try leaders of the Khmer Rouge regime, which governed from 1975 to 1979, during which 1.7 million people are estimated to have died by execution, forced labour, or starvation. It was a national court involving local and foreign judges. The former Head of State, Khieu Samphan, was convicted of genocide, crimes against humanity and war crimes,682 and he and two others (‘Duch’, the former head of a notorious interrogation centre, and Nuon Chea, former Deputy Secretary of the Communist Party) were sentenced to life imprisonment. The court had originally been expected to try as many as 30 defendants. One achievement was that 165,000 Cambodians attended the first two trials between 2009 and 2015.

A media report marking the closing of the tribunal summed up its challenges:

The tribunal’s awkward pairing of two judicial systems, and two often-conflicting views of its purpose, led to delays and sometimes-acrimonious disputes. Besides coming under criticism for its high cost and slow pace, the tribunal was marred by corruption and succumbed to pressure from Prime Minister Hun Sen, himself a former Khmer Rouge cadre, to limit the scope of the prosecutions.683

(iii) the Special Tribunal for Lebanon,684 which was set up in 2009 to prosecute those responsible for the 2005 killing of Lebanese Prime Minister Rafik Hariri and 21 others. All the judges were appointed by the UN Secretary-General, but the Tribunal applied

680 C. Jalloh, The Legal Legacy of the Special Court for Sierra Leone (2020).

681 J. Bernath, The Khmer Rouge Tribunal: Power, Politics, and Resistance in Transitional Justice (2023); and S. Meisenberg and I. Stegmiller (eds.), The Extraordinary Chambers in the Courts of Cambodia: Assessing their Contribution to International Criminal Law (2016).

682 J. Ciorciari, ‘Case 002/02 Against Khieu Samphan’, 62 Int’l Leg. Mat. (2023) 937.

683 S. Mydans, ‘6 Years, 3 Convictions: The Khmer Rouge Trials Come to an End’, The New York Times (22 September 2022).

684 O. Kavran, ‘The Special Tribunal for Lebanon and its Outreach Programme’, 20 J. Int’l Crim. Just. (2022) 81.

Lebanese law and criminal procedures. Three individuals were tried in absentia and ultimately convicted, after the Appeals Chamber reversed two earlier acquittals. The court held 499 hearings and gathered 174,000 pages of evidence before its mandate ended in December 2023. This assessment of the most significant conviction is instructive:

… [The Trial] Chamber must settle with a story and a finding that is incomplete and at least a little unconvincing. … At best, the decision might serve as a resource to inform dialogue and discussion within Lebanon about how to apportion responsibility within its fragile political system. At worst, it will further destabilize the Lebanese polity and render any positive reading of [international criminal justice] suspect and unconvincing. …685

(iv) the Extraordinary African Chambers of the Courts of Senegal. For details see Ch. 12, above.686

(v) the Kosovo Specialist Chambers687 were set up in 2015 with jurisdiction over crimes against humanity, war crimes and other crimes under Kosovo law, committed in Kosovo between 1998 and 2000 by or against citizens of Kosovo or the Federal Republic of Yugoslavia. This followed a report by the Parliamentary Assembly of the Council of Europe (Doc. 12462 of 7 January 2011) alleging that Serbians and Albanian Kosovars had been imprisoned ‘in secret places of detention under [Kosovo Liberation Army] control in northern Albania and were subjected to inhuman and degrading treatment, before ultimately disappearing.’ Trafficking in human organs was also alleged. The Chambers were set up under an international agreement with the European Union, ratified by the Kosovo Assembly. They are based in The Hague, composed of international judges and other personnel, and funded by the EU, Canada, Norway, Switzerland, Turkey, and the United States. In April 2023, an especially important case began against the former KLA leader and President of Kosovo, Hashim Thaçi, and three other former senior officials for war crimes and crimes against humanity.

The tribunals in Sierra Leone, Cambodia, and Lebanon were all set up following negotiated agreements with the UN. In the latter case, the Security Council had to pass a resolution to bring the provisions of the agreement into force. The Kosovo tribunal resulted from negotiations with the European Union.

B. THE INTERNATIONAL CRIMINAL COURT688

The General Assembly first instructed the International Law Commission to study the possibility of establishing a permanent criminal court in 1948. While extensive work was undertaken, it was not until 1992 that the Assembly requested the Commission to draft a statute, which then became the basis for intensive negotiations at the Rome Conference in 1998. The ICC treaty came into force in 2002 and, as of 2024, 123 countries are states parties to it (33 from Africa, 19 from Asia-Pacific, 18 from Eastern Europe, 28 from Latin America and the Caribbean, and 25 from the group of ‘Western European and other’ States). Burundi withdrew from the Statute in 2017 and the Philippines in 2019, each after preliminary investigations had been opened in relation to situations in those countries. Non-parties include China, Egypt, India, Indonesia, Iran, Israel, Libya, Pakistan, Russia, Rwanda, Sudan, Syria, the United States and Zimbabwe.

In addition to the Court, the Rome Statute established the Assembly of States Parties, which oversees the management of the Court, elects the judges and the Prosecutor, and approves the budget. There is also a Trust Fund for Victims, which implements reparations ordered by the court and provides physical, psychological, and material support to victims and their families. The court itself consists of four principal organs: the Presidency;

685 M. Burgis-Kasthala, ‘Time for Justice? Reflections on Narrative Absences and Presences in the Special Tribunal for Lebanon’s Ayyash Decision’, 33 Eur. J. Int’l. L. (2022) 1213, at 1241.

686 J. P. Perez-Leon-Acevedo, ‘The Extraordinary African Chambers in the Senegalese Courts and the Development of International Criminal Law in Africa’, in J. Sarkin and E. Siang’andu (eds.), Africa's Role and Contribution to International Criminal Justice (2021) 53.

687 https://www.scp-ks.org/en.

688 See C. Stahn (ed.), The International Criminal Court in Its Third Decade: Reflecting on Law and Practices (2024).

the Judicial Divisions (18 judges are allocated among the Pre-Trial, Trial and Appeals divisions); the Office of the Prosecutor (OTP), which investigates crimes and initiates criminal proceedings; and the Registry, which manages the court’s administration, including its headquarters, detention unit, and public defense office. For 2024, the ICC had a budget of €197 million, and employed over 900 personnel from some 100 countries.

By 2024, 31 cases had been brought before the court and 17 investigations were ongoing by the OTP into the following situations: Uganda, the DRC, Darfur (Sudan), Kenya, Libya, Côte d’Ivoire, Central African Republic (I and II), Mali, Georgia, Burundi, Bangladesh/Myanmar, Afghanistan, Palestine, the Philippines, Venezuela I and Ukraine. The situations in Nigeria and Venezuela (II) were being monitored as part of preliminary examinations. Seven persons were in custody and 14 suspects remained at large.

The ICC held its first hearing in 2006, concerning war crimes charges against Thomas Lubanga Dyilo, a Congolese warlord accused of recruiting child soldiers; his subsequent conviction in 2012 was the first in the court's history. The OTP has opened twelve official investigations and is conducting an additional nine preliminary examinations. A total of 46 individuals have been indicted. High-ranking individuals have included Ugandan rebel leader Joseph Kony, former President Omar al-Bashir of Sudan, President Uhuru Kenyatta of Kenya, Libyan head of state Muammar Gaddafi, President Laurent Gbagbo of Ivory Coast and former Vice President Jean-Pierre Bemba of the Democratic Republic of the Congo, although of these only the last was so far convicted.

1. The ICC Statute: Jurisdiction

The extent of the court’s jurisdiction was at the core of debates at the Rome Conference. Issues included the respective roles to be played by the Prosecutor, states parties and the Security Council in relation to investigations and prosecutions, the circumstances under which non-parties could consent to jurisdiction, the powers of the Security Council to make referrals and to pause cases, and the limits to be placed upon the independence of the Prosecutor.

The agreed starting points were that the court’s jurisdiction was ‘limited to the most serious crimes of concern to the international community as a whole’ (Article 5), namely the four core crimes, and that the complementarity principle would prioritize effective action at the national level over international involvement.689 In temporal terms, the ICC has jurisdiction only over crimes committed after 1 July 2002 and, in relation to a given state, only after the Statute enters into force for it.

The jurisdictional arrangements are of critical importance because of the legal and political compromises struck, and of how carefully they were negotiated. There is no substitute for studying the key provisions, and they are reproduced below. As reflected in Articles 12-14, the court has jurisdiction in situations where the accused is the national of a state party, or of a state that consents to the court’s jurisdiction, or where the conduct occurred on a state party’s territory, or that of a consenting state. In situations in which neither the state where the crime occurred nor the accused’s state of nationality is a party to the Statute, the only option is for the Security Council to refer the case under Chapter VII of the UN Charter.

Among the most contentious issues at the Rome Conference were those relating to the jurisdiction of the court:

Article 12

Preconditions to the exercise of jurisdiction

1. A State which becomes a Party to this Statute thereby accepts the jurisdiction of the Court with respect to [genocide, crimes against humanity, and war crimes].

2. In the case of article 13, paragraph (a) or (c), the Court may exercise its jurisdiction if one or more of the following States are Parties to this Statute or have accepted the jurisdiction of the Court in accordance with paragraph 3:

689 P. Labuda, International Criminal Tribunals and Domestic Accountability (2023).

(a) The State on the territory of which the conduct in question occurred or, if the crime was committed on board a vessel or aircraft, the State of registration of that vessel or aircraft;

(b) The State of which the person accused of the crime is a national.

3. If the acceptance of a State which is not a Party to this Statute is required under paragraph 2, that State may, by declaration lodged with the Registrar, accept the exercise of jurisdiction by the Court with respect to the crime in question. …

Article 13

Exercise of jurisdiction

The Court may exercise its jurisdiction with respect to a crime referred to in article 5 in accordance with the provisions of this Statute if:

(a) A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by a State Party in accordance with article 14;

(b) A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by the Security Council acting under Chapter VII of the Charter of the United Nations; or

(c) The Prosecutor has initiated an investigation in respect of such a crime in accordance with article 15.

Article 14

Referral of a situation by a State Party

1. A State Party may refer to the Prosecutor a situation in which one or more crimes within the jurisdiction of the Court appear to have been committed requesting the Prosecutor to investigate the situation for the purpose of determining whether one or more specific persons should be charged with the commission of such crimes.

…

Article 15 Prosecutor

1. The Prosecutor may initiate investigations proprio motu on the basis of information on crimes within the jurisdiction of the Court.

3. If the Prosecutor concludes that there is a reasonable basis to proceed with an investigation, he or she shall submit to the Pre-Trial Chamber a request for authorization of an investigation, together with any supporting material collected. Victims may make representations to the Pre-Trial Chamber … .

4. If the Pre-Trial Chamber … considers that there is a reasonable basis to proceed with an investigation, and that the case appears to fall within the jurisdiction of the Court, it shall authorize the commencement of the investigation … .

…

Article 16

Deferral of investigation or prosecution

No investigation or prosecution may be commenced or proceeded with under this Statute for a period of 12 months after the Security Council, in a resolution adopted under Chapter VII of the Charter of the United Nations, has requested the Court to that effect; that request may be renewed by the Council under the same conditions.

Article 17 Issues of admissibility

1. … [T]he Court shall determine that a case is inadmissible where:

(a) The case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution;

(b) The case has been investigated by a State which has jurisdiction over it and the State has decided not to prosecute the person concerned, unless the decision resulted from the unwillingness or inability of the State genuinely to prosecute;

(c) The person concerned has already been tried for conduct which is the subject of the complaint, …;

(d) The case is not of sufficient gravity to justify further action by the Court.

Article 53 Initiation of an investigation

1. The Prosecutor shall, having evaluated the information made available to him or her, initiate an investigation unless he or she determines that there is no reasonable basis to proceed under this Statute. In deciding whether to initiate an investigation, the Prosecutor shall consider whether:

(a) The information available to the Prosecutor provides a reasonable basis to believe that a crime within the jurisdiction of the Court has been or is being committed;

(b) The case is or would be admissible under article 17; and

(c) Taking into account the gravity of the crime and the interests of victims, there are nonetheless substantial reasons to believe that an investigation would not serve the interests of justice.

Security Council Referral

Until 2024, the Security Council had used its authority under Article 13(b) to refer a situation to the ICC only in relation to Sudan in 2005 and Libya in 2011. But various other such cases have been mooted and the role of the Council has generated considerable controversy. Three of the Council’s permanent five members are not parties to the Rome Statute (China, Russia and the United States), and both referrals have related to African states, while atrocity situations elsewhere have not obtained the necessary consensus. The referrals have also been problematic because they impose an additional financial burden on the Court which must be borne only by states parties, and because nationals of Security Council members who are not state parties have been exempted from the ICC’s jurisdiction.

In the view of Tom Dannenbaum, in ‘Legitimacy in War and Punishment: The Security Council and the ICC’, in Kevin Heller et al. (eds.), The Oxford Handbook of International Criminal Law (2020) 129, at 151, such referrals present a major legitimacy challenge to the Court:

… Unless permanent members discard the veto altogether in this context, an uptick in Security Council referrals to the ICC would likely exacerbate, rather than remedy the divide between legality and legitimacy. Short of Rome Statute ratification by the current non-party permanent members, two options for strengthening the Court’s legitimacy in this respect stand out. First, the Court could move to a universal jurisdiction model, as proposed during Rome Statute drafting. …Realistically, however, such a reform is unlikely to gain political traction. …

The alternative route to a more legitimate ICC would be for the Court to revert to a nationality and territorial jurisdiction model. Short of an unlikely statutory amendment eliminating the Security Council referral trigger, this could be achieved in two ways. First, in direct contrast to the path to legitimacy in responding to atrocity with appropriate force, the Council could step back from referring atrocity situations to the Court. Second, and more radically, the prosecutor could use her discretion to refrain from opening investigations or pursuing charges in Council-referred situations on the grounds that pursuing those avenues would not be in the ‘interests of justice’. …

2. The Definition of Crimes

While the definition of genocide is taken directly from the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, the definitions of crimes against humanity and war crimes were, as Stuart Ford noted at p. 000 above, intensively debated at the Rome Conference. One proposal pushed from the outset by the United States was for the Conference to adopt a statement of the ‘elements of the crime’, which would clarify and elaborate upon the elements that would need to be proven in relation to each of the offences specified in Articles 6-8. Most delegations were reluctant to impose a checklist on the court but, in order to obtain a consensus, agreed that such a document could be adopted if it were non-binding. The elements were developed after the conference by the Preparatory Commission and adopted by the Assembly of States Parties by a twothirds majority. Article 9 indicates that their role is to ‘assist’ the court in interpreting the relevant crimes. They are thus a primary source of law for the Court, but subject to its interpretation of the specific provisions of the Statute itself.690

The ICTY had a major impact on the understanding of the term genocide. Carsten Stahn, ‘ICTY and the New Law on Genocide’, in Steven van Hoogstraten (ed.) New Challenges to International Law: A View from The Hague (2018) 126, at 130, notes that:

… [Its] main innovation lies in the fact that it adjusted the interpretation of genocide to different contexts, in particular killings and destruction carried out against parts of groups in limited geographic areas, such as enclaves and towns. It accepted that genocide is not a game of numbers. It ruled that destruction of a part of a group is sufficient if that part is ‘emblematic’ of the overall group. …

In its first genocide conviction in relating to events in Srebrenica, namely the Krstić case, the ICTY accepted the argument that genocide may occur even when the exterminatory intent extends only to a limited geographic zone something that has been called ‘localized genocide’. The ICJ has shown a rather wide degree of deference to ICTY case law in its genocide cases. …

The message in relation to genocidal intent in relation to attacks in other municipalities has remained more ambiguous. The Prosecution sought to establish that genocide took place in all of Bosnia and Herzegovina. However, Karadžić and Mladić were acquitted for counts of genocide relating to other Bosnian municipalities, based on different reasons, such as the failure to establish specific genocidal intent or to destroy a substantial part of the group. This may fuel a perception that genocide only occurred in Srebrenica. The overall record contains certain gaps and loopholes. …

While treaties exist defining genocide and war crimes, there is no equivalent for crimes against humanity. In 2019, after five years of work by Sean Murphy, its Rapporteur on the subject, the International Law Commission sent a set of draft articles on prevention and punishment of crimes against humanity to the UN General Assembly for its consideration (UN Doc. A/74/10 (2019), 11). Russia’s invasion of Ukraine in 2022 led to the breaking of a deadlock in the Assembly’s Sixth Committee, and a resolution seeking to consider a final draft in

690 See W. Schabas, The International Criminal Court: A Commentary on the Rome Statute (2nd ed., 2016) 322; and K. Dörmann, Elements of War Crimes under the Rome Statute of the International Criminal Court: Sources and Commentary (2003).

2024 (Res. 77/249 (2022)). Successful adoption of a treaty would provide greater clarity on the relevant crimes, oblige states parties to incorporate the definition and prohibition of the relevant offences into their national law, and provide additional protections for civilian populations.

Articles 6-8 of the Rome Statute, spelling out the definitions of genocide, crimes against humanity, and war crimes, follow.

Article 6 Genocide

For the purpose of this Statute, "genocide" means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

(a) Killing members of the group;

(b) Causing serious bodily or mental harm to members of the group;

(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;

(d) Imposing measures intended to prevent births within the group;

(e) Forcibly transferring children of the group to another group.

Article 7 Crimes against humanity

1. For the purpose of this Statute, "crime against humanity" means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack:

(a) Murder;

(b) Extermination;

(c) Enslavement;

(d) Deportation or forcible transfer of population;

(e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law;

(f) Torture;

(g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity;

(h) Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court;

(i) Enforced disappearance of persons;

(j) The crime of apartheid;

(k) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.

War crimes

1. The Court shall have jurisdiction in respect of war crimes in particular when committed as part of a plan or policy or as part of a large-scale commission of such crimes.

2. For the purpose of this Statute, "war crimes" means:

(a) Grave breaches of the Geneva Conventions of 12 August 1949, namely, any of the following acts against persons or property protected under the provisions of the relevant Geneva Convention:

(i) Wilful killing;

(ii) Torture or inhuman treatment, including biological experiments;

(iii) Wilfully causing great suffering, or serious injury to body or health;

(iv) Extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly;

(v) Compelling a prisoner of war or other protected person to serve in the forces of a hostile Power;

(vi) Wilfully depriving a prisoner of war or other protected person of the rights of fair and regular trial;

(vii) Unlawful deportation or transfer or unlawful confinement;

(viii) Taking of hostages.

(b) Other serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law, namely, any of the following acts:

(i) Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities;

(ii) Intentionally directing attacks against civilian objects, that is, objects which are not military objectives;

(iii) Intentionally directing attacks against personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations, as long as they are entitled to the protection given to civilians or civilian objects under the international law of armed conflict;

(iv) Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated;

(v) Attacking or bombarding, by whatever means, towns, villages, dwellings or buildings which are undefended and which are not military objectives;

(vi) Killing or wounding a combatant who, having laid down his arms or having no longer means of defence, has surrendered at discretion;

(c) In the case of an armed conflict not of an international character, serious violations of article 3 common to the four Geneva Conventions of 12 August 1949, namely, any of the following acts committed against persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention or any other cause:

(i) Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;

(ii) Committing outrages upon personal dignity, in particular humiliating and degrading treatment;

(iii) Taking of hostages;

(iv) The passing of sentences and the carrying out of executions without previous judgement pronounced by a regularly constituted court, affording all judicial guarantees which are generally recognized as indispensable.

(d) Paragraph 2 (c) applies to armed conflicts not of an international character and thus does not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature.

(e) Other serious violations of the laws and customs applicable in armed conflicts not of an international character, within the established framework of international law, namely, any of the following acts:

(i) Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities;

(ii) Intentionally directing attacks against buildings, material, medical units and transport, and personnel using the distinctive emblems of the Geneva Conventions in conformity with international law;

3. The OngwenCase

In order to bring these provisions alive, the following materials focus on the ICC case of Dominic Ongwen, which began with a warrant issued in 2005 and ended with the completion of the appeals phase in December 2022. The case is significant for many reasons. It was the first case to be self-referred to the court by a state party, it involved the largest number of charges brought and the most modes of liability invoked against a single defendant, it was the first time a defendant pleaded defenses such as mental disease and duress, and it led to convictions for previously untried crimes.

Ongwen was a high-level member of the Lord’s Resistance Army (LRA), established by Joseph Kony in the 1980s to further an armed rebellion against the Ugandan government. The LRA also targeted civilians in Northern Uganda whom they considered to be pro-government, especially those living in governmentestablished camps for Internally Displaced Persons (IDP camps). The camps were part of an anti-insurgency strategy to remove people from rural areas where they might assist the rebels. Ongwen himself was abducted by the LRA in 1987 at around nine years of age and experienced brutality and suffering. He eventually rose to become a battalion commander of the LRA’s Sinia Brigade.

Uganda became a party to the Rome Statute on 14 June 2002, and referred the situation in northern Uganda to the Court on 16 December 2003. On 29 July 2004, the Prosecutor launched an investigation and, on 8 July 2005, the Trial Chamber issued sealed warrants for five LRA leaders, including Joseph Kony and Dominic Ongwen. Starting in 2010, United States Special Forces and others made extensive but unsuccessful efforts to

capture them. Ongwen voluntarily surrendered to forces in the Central African Republic, and was transferred to ICC custody on 20 January 2015. His case was separated from that of the other leaders, and the trial ran from December 2016 to November 2019. A total of 116 witnesses testified for the prosecution and 63 for the defence. Over 4,000 victims were represented by two separate legal teams, which made submissions, presented evidence, and called seven witnesses.691

Ongwen was charged with 70 counts of war crimes and crimes against humanity that took place between 1 July 2002 and 31 December 2005. On 4 February 2021, the Trial Chamber convicted him of 61 crimes. He was found responsible as: (i) an indirect perpetrator of crimes including attacks against the civilian population, murder, torture, enslavement, pillaging, destruction of property and persecution, committed in the context of attacks against two IDP camps (in Lukodi and Abok) in May-June 2004; (ii) an indirect co-perpetrator of similar crimes committed in attacks on two other IDP camps (Pajule and Odek) in 2003-2004; (iii) an indirect coperpetrator of sexual and gender-based crimes (SGBC), including forced marriage as a form of other inhumane acts, torture, rape, sexual slavery, and enslavement, and the crime of conscription of children under the age of 15 years and their use in armed hostilities; and (iv) as a direct perpetrator of a number of other SGBC, including forced marriage as a form of other inhumane acts, torture, rape, sexual slavery, enslavement, forced pregnancy, and outrages upon personal dignity.

In appealing the convictions, the defence raised 90 separate grounds, alleging legal, factual and procedural errors. In particular, the defence alleged that Ongwen’s fair trial rights had been violated, including in relation to the notice and scope of the charges brought against him. It challenged the modes of liability and criminal responsibility under which he was convicted as an indirect perpetrator and co-perpetrator, the Trial Chamber’s failure to have adequate regard to his defences of mental disease and duress, the Chamber’s interpretation and factual findings concerning SGBC, and the appropriateness of imposing cumulative convictions. All the convictions were upheld in the judgment of the Appeals Chamber on 15 December 2022. The sentence of 25 years’ imprisonment was also upheld. The Trial Chamber’s judgment was 1,077 pages long, and the judgment of the Appeals Chamber totalled 811 pages, giving some sense of the magnitude and complexity of the case.

The following materials explore selected aspects of the case, starting with the Court’s overview of the charges relating to crimes against humanity, and in particular SGBC. These materials should be read against the background of significant criticism of the ways in which the ad hoc tribunals had dealt with such issues. This includes, in particular, their approach to gender-related crimes. Indira Rosenthal, Valerie Oosterveld, and Susana SáCouto, in ‘Introduction’, in ibid. (eds.), Gender and International Criminal Law (2022) 1, note that:

Despite nearly thirty years of unprecedented attention on the commission of sexual violence and other gender-based crimes under international law, these crimes, their causes, and their consequences remain poorly understood. The result has been a series of investigative, prosecutorial, and judicial decisions in international criminal courts and tribunals that reveal deeply held misconceptions about the role of gender in the commission, experience, investigation, prosecution, and punishment of crimes under international law. … [T]hese mistaken beliefs … remain pervasive among ICL practitioners investigators, prosecutors, defence counsel, and judges as well as in the media.

In a subsequent chapter in the same book, Kirsten Campbell and Gorana Mlinarević, in ‘A Feminist Critique of Approaches to International Criminal Justice in the Age of Identity Politics’, at 75, observe that the ICTY charged 78 persons with sexual violence, of whom 32 were convicted. They acknowledge that the ICTY and the ICTR ‘shifted conflict-related sexual violence from being an “invisible crime” to being seen as prosecutable as an international crime as such.’ However, they also criticize its approach:

The ICTY Statute only provided for individual criminal responsibility … in contrast to the approach taken at … Nuremberg … which treated the SS, Gestapo, and other groups as criminal organizations, as well as providing for individual criminal responsibility. …

691 See generally: Special issue on the Ongwen Case, 23 Int’l Crim. L. Rev. 667 (2023).

Because of this … the ICTY confronted a crucial problem concerning its prosecutions of mass atrocities. On the one hand, it focused on the individual, to the exclusion of the systems, structures, and collectivities that enabled mass atrocities to occur. On the other hand, it needed to account for the collective nature of these crimes.

… [T]he ICTY addressed what it called ‘collective criminality’ through the doctrine of joint criminal enterprise (JCE) … [requiring]: (1) a plurality of persons; (2) the existence of common plan, design, or purpose; and (3) participation of the accused in the common design of the crimes under the Statute. … JCE is conceptualized as a form of individual liability for participation in group criminality.

Without addressing system criminality, it was neither possible to adequately address the patriarchal nature of the conflict, criminality, and victimization, nor to properly prosecute gender-based crimes. … [T]he individualized conceptualization of criminal responsibility hides the gender ‘dimension’ of crimes by obscuring (1) the gendered patterns and effects of CRSV [conflict-related sexual violence] and (2) the gendered structures that create these crimes. …

…

Taking a broader perspective … shows how gender shapes patterns of victimization and perpetration, both in terms of who become victims and perpetrators and what crimes are committed. It also shows that these patterns of victimization and perpetration are connected to the wider gendered power relations of war, in that it reveals that the majority of perpetrators of CRSV were men participating in patriarchal masculinized (valued) military, police, and political groups, and the majority of the victims were women who were unarmed, feminized (devalued) civilians. Understood as such, patterns of sexual violence are an important aspect of understanding how CRSV is a gender-based crime, and how those crimes are connected to gender power relations.

THE

PROSECUTOR V. DOMINIC ONGWEN TRIAL JUDGMENT, NO. ICC-02/04-01/15 (4 FEBRUARY 2021)

IV. ASSESSMENT OF EVIDENCE

D. Grounds excluding criminal responsibility

2. Duress

i. Introduction

2581. Duress in Article 31(1)(d) of the Statute has three elements. The first element is that the conduct alleged to constitute the crime has been caused by duress resulting from a threat of imminent death or of continuing or imminent serious bodily harm against that person or another person. The threat in question may either be: (i) made by other persons or (ii) constituted by other circumstances beyond that person’s control. The threat is to be assessed at the time of that person’s conduct.

2582. From the plain language of the provision, the words ‘imminent’ and ‘continuing’ refer to the nature of the threatened harm, and not the threat itself. It is not an ‘imminent threat’ of death or a ‘continuing or imminent threat’ of serious bodily harm – the Statute does not contain such terms. Rather, the threatened harm in question must be either to be killed immediately (‘imminent death’), or to suffer serious bodily harm immediately or in an ongoing manner (‘continuing or imminent serious bodily harm’). On this understanding, duress is unavailable if the accused is threatened with serious bodily harm that is not going to materialise sufficiently soon. A merely

abstract danger or simply an elevated probability that a dangerous situation might occur – even if continuously present – does not suffice.

2583. The second element … is that the person acts necessarily and reasonably to avoid the threat. The person is not required to take all conceivable action to avoid the threat, irrespective of considerations of proportionality or feasibility. The Chamber must specifically consider what, if any, acts could ‘necessarily and reasonably’ avoid the threat, and what the person should have done must be assessed under the totality of the circumstances in which the person found themselves. Whether others in comparable circumstances were able to necessarily and reasonably avoid the same threat is relevant in assessing what acts were necessarily and reasonably available.

2584. Finally, the third element … is that the person does not intend to cause a greater harm than the one sought to be avoided. This is a subjective element – it is not required that the person actually avoided the greater harm, only that he/she intended to do so. The Chamber considers that assessment of whether one intended harm is ‘greater’ than another depends on the character of the harms under comparison.

…

viii. Conclusion

2668. … [T]here is no basis in the evidence to hold that Dominic Ongwen was subjected to a threat of imminent death or imminent or continuing serious bodily harm to himself or another person at the time of his conduct underlying the charged crimes. … [He] was not in a situation of complete subordination vis-à-vis Joseph Kony, but frequently acted independently and even contested orders received from Joseph Kony. … [I]n the period of the charges [he] did not face any prospective punishment by death or serious bodily harm when he disobeyed Joseph Kony. Dominic Ongwen also had a realistic possibility of leaving the LRA, which he did not pursue. Rather, he rose in rank and position, including during the period of the charges. Finally, he committed some of the charged crimes in private, in circumstances where any threats otherwise made to him could have no effect.

2672. … [T]he Defence also made some legally unspecified submissions emphasising that Dominic Ongwen was himself a victim of crimes, on account of his abduction at a young age by the LRA. The Chamber … notes that [he] committed the relevant crimes when he was an adult and, importantly, that, in any case, the fact of having been (or being) a victim of a crime does not constitute, in and of itself, a justification of any sort for the commission of similar or other crimes – beyond the potential relevance of the underlying facts to the grounds excluding criminal responsibility expressly regulated under the Statute. The separate and more specific Defence assertion that ‘Article 21(3)692 prohibits charging a victim of a crime with the same crime’ is equally without merit: a rule that would immunize persons who suffer human rights violations from responsibility for all similar human rights violations that they may themselves commit thereafter manifestly does not exist in international human rights law.

…

V. LEGAL FINDINGS

A. Applicable law

i. Contextual elements

a. Crimes against humanity

[The Chamber recalls the provisions of Article 7(1) of the Statute.]

i Attack against any civilian population

2674. An ‘attack’ in this context means a ‘course of conduct involving the multiple commission of acts referred to in [Article 7(1)]’. The requirement that the acts form part of a ‘course of conduct’ indicates that Article 7 is meant to cover a series or overall flow of events, as opposed to a mere aggregate of random or isolated acts.

692 Article 21(3): ‘The application and interpretation of law pursuant to this article must be consistent with internationally recognized human rights, and be without any adverse distinction founded on grounds such as gender … age, race, colour, language, religion or belief, political or other opinion, national, ethnic or social origin, wealth, birth or other status.’

The ‘multiple commission of acts’ sets a quantitative threshold involving a certain number of acts falling within the course of conduct.

2675. The course of conduct must be ‘directed against any civilian population’, namely a collective, as opposed to individual civilians. The civilian population must be the primary target of the attack and not an incidental victim of it. The presence within a civilian population of individuals who do not fall under the definition of ‘civilians’ does not deprive the population of its civilian character. …

ii Organisational policy

2676. The ‘course of conduct involving the multiple commission of acts’ must take place ‘pursuant to or in furtherance of a State or organizational policy to commit such attack’ … . The Elements of Crimes specify that the ‘“policy to commit such attack” requires that the […] organization actively promote[s] or encourage[s] such an attack against a civilian population’. For the purposes of this judgment, only the ‘organisational policy’ prong is relevant.

2677. As regards the ‘organisation’ pursuing the policy, the Chamber adheres to the definition established by Trial Chamber II:

In the Chamber’s view, the connection of the term “organisation” to the very existence of the attack and not to its systematic or widespread nature presupposes that the organisation has sufficient resources, means and capacity to bring about the course of conduct or the operation involving the multiple commission of acts referred to in article 7(2)(a) of the Statute. It therefore suffices that the organisation [has] a set of structures or mechanisms, whatever those may be, that are sufficiently efficient to ensure the coordination necessary to carry out an attack directed against a civilian population.

2678. As the terms ‘pursuant to or in furtherance of’ imply, the policy requirement ensures that the multiple acts forming the course of conduct are linked. It ensures that acts which are unrelated or perpetrated by individuals acting randomly on their own are excluded.

2679. A policy may consist of a pre-established design or plan, but it may also crystallise and develop only as actions are undertaken by the perpetrators. The ‘policy’ may be inferred from a variety of factors, such as: (i) a recurrent pattern of violence; (ii) the existence of preparations or collective mobilisation orchestrated and coordinated by the organisation; (iii) the use of public or private resources to further the policy; (iv) the involvement of organisational forces in the commission of crimes; (v) statements, instructions or documentation attributable to the organisation condoning or encouraging the commission of crimes; and (vi) an underlying motivation. In principle, a state or organisation committing a systematic attack against a civilian population will satisfy the policy requirement.

iii Widespread or systematic attack

2680. The alternative qualifiers of ‘widespread’ or ‘systematic’ serve to characterise the ‘attack’ itself.

2681. The term ‘widespread’ connotes the large-scale nature of the attack and the number of targeted persons. The assessment of whether the attack is widespread is neither exclusively quantitative nor geographical, but must be carried out on the basis of all the relevant facts of the case.

2682. The term ‘systematic’ reflects the organised nature of the violent acts, referring often to the existence of ‘patterns of crimes’ and the improbability of their random or accidental occurrence.

b. War crimes – armed conflict not of an international character

2683. The war crimes charged in this case exclusively concern a non-international armed conflict. An armed conflict not of an international character exists when there is protracted armed violence between governmental authorities and organised armed groups or between such groups within a State. Such a conflict exceeds situations

of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of similar nature.

2684. When evaluating the intensity of the conflict to determine its ‘protracted’ character, chambers consider factors such as: (i) the seriousness and frequency of attacks and armed clashes; (ii) the spread of clashes over territory and the group’s ability to control territory over a period of time; (iii) whether any ceasefire orders had been issued or agreed to; (iv) the type and number of armed forces deployed, including any involvement of the government; (v) the type of weapons used; (vi) whether the situation had attracted the attention of the UN Security Council, or involvement of other international organisations; (vii) whether those fighting considered themselves bound by international humanitarian law and (viii) the effects of the violence on the civilian population, including the extent to which civilians left the relevant area, the extent of destruction, and the number of persons killed. Exercise of control over a part of the territory is not required, though the importance of this factor increases in the absence of active hostilities. It is also not required that the violence be continuous and uninterrupted – the Chamber need only find that the violence goes beyond isolated or sporadic acts.

2685. When evaluating whether an entity qualifies as an ‘organised armed group’, chambers consider factors such as: (i) the existence of a command structure, the existence of headquarters, the issuing of political statements, and the use of official spokespersons; (ii) the military (operational) capacity of the armed group, which may be shown by, for example, the ability to define a unified military strategy, the use of military tactics, the ability to carry out (large scale or coordinated) operations, the control of territory, and having a territorial division into zones of responsibility; (iii) the logistical capacity of the armed group, indicated, among others, by the existence of a supply chain for military equipment, as well as by the group’s ability to move troops around and to recruit and train personnel; (iv) the existence of an internal disciplinary system and the ability to implement international humanitarian law; and (v) the group’s ability to speak with one voice, indicated, for example, by the capacity of the leadership to act on behalf of its members in political negotiations and to conclude agreements, such as cease-fire or peace agreements.

2686. A situation that starts out as a non-international armed conflict may become international, if another State intervenes in the conflict directly (through its troops) or indirectly (when some of the groups involved act on behalf of that other State).

2687. To assess whether an international armed conflict exists as a result of such indirect participation of a State, the Chamber must appraise the degree of control exerted by that State over the armed group in question. In doing so, the Chamber will rely on the ‘overall control’ test, whereby it must be established that the State had ‘a role in organising, coordinating or planning the military actions of the military group, in addition to financing, training and equipping or providing operational support to that group’. An international armed conflict therefore exists if a degree of control is exercised by the intervening third State over a non-State actor fighting in opposition to, or without the consent of, the government, that goes beyond the mere financing and equipping of the armed group. It does not require, however, that such control extends to the issuance of specific orders or instructions relating to single military actions.

c. Nexus requirement and perpetrators’ awareness

2689. The war crimes charged in the present case require, as their contextual elements, that the relevant took [sic] place in the context of and was associated with an armed conflict not of an international character. The perpetrator’s conduct need not take place as part of hostilities, meaning that the nexus requirement could still be satisfied for crimes temporally or geographically remote from the actual fighting. …

ii. The crimes

2694. In the following, the Chamber will set forth the relevant applicable law of the individual crimes with which Dominic Ongwen is charged. The crimes are embedded in the context that gives them their international character and differentiates them from ordinary crimes.

2695. Unless otherwise provided in the Statute, the material elements of the crimes must have been committed with ‘intent’ and ‘knowledge’ within the meaning of Article 30 of the Statute. …

a. Murder and attempted murder (Article 7(1)(a) and Article 8(2)(c)(i))

2696. The crime of murder is committed in case a person is killed as a result of the perpetrator’s act or omission. In the case of attempted murder, substantial steps have been taken to execute the crime but it does not occur because of circumstances independent of the perpetrator’s intentions.

2697. For the purpose of murder as a war crime, Article 8(2)(c) of the Statute prescribes that the crime must be committed ‘against persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention or any other cause’. Taking an active part in the hostilities is understood as acts of war that by their nature or purpose strike at the personnel and matériel of enemy armed forces. It is not considered taking an active part in the hostilities when persons otherwise protected under international humanitarian law exercise their right to individual self-defence.

2698. Lastly, while the Prosecutor must demonstrate, to the extent possible, the location, date and means of killing, she is not required to demonstrate for each killing the identity of the victim or that the corpse of the deceased has been found.

b. Torture (Article 7(1)(f) and Article 8(2)(c)(i))

2700. The crime of torture, whether as a crime against humanity or war crime, is committed either by act or omission and has a common material element that ‘[t]he perpetrator inflicted severe physical or mental pain or suffering upon one or more persons’.

2701. The severity implies an important degree of pain and suffering and may be met by a single act or by a combination of acts when viewed as a whole. This can be assessed only on a case-by-case basis in the light of all the circumstances of the case. It is not necessary to prove that the pain or suffering involved specific physical injury (such as organ failure), impairment of a bodily function or death. The pain and suffering may be either physical or mental. The consequences of torture do not have to be visible, nor must the injury be permanent.

2702. There are some notable differences between the elements of torture as a crime against humanity versus a war crime.

2703. For torture as a crime against humanity, Article 7(2)(e) of the Statute further requires that ‘[s]uch person or persons were in the custody or under the control of the perpetrator’. Torture as a crime against humanity also requires that the pain or suffering did not arise only from, and was not inherent or incidental to, lawful sanctions.

2704. In contrast, for torture as a war crime, the custody/control element is not required. Instead, for the war crime of torture there is an additional mental element specified below. The war crime must also be committed against persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat

2705. In addition to the mental elements specified in Article 30, the war crime of torture further requires that: The perpetrator inflicted the pain or suffering for such purposes as: obtaining information or a confession, punishment, intimidation or coercion or for any reason based on discrimination of any kind.

c. Rape (Article 7(1)(g) and Article 8(2)(e)(vi))

2708. The crime of rape, whether as a crime against humanity or war crime, is committed when the following two material elements are fulfilled:

1. The perpetrator invaded the body of a person by conduct resulting in penetration, however slight, of any part of the body of the victim or of the perpetrator with a sexual organ, or of the anal or genital opening of the victim with any object or any other part of the body.

2. The invasion was committed by force, or by threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power, against such person or another person, or by taking advantage of a coercive environment, or the invasion was committed against a person incapable of giving genuine consent.

2709. The establishment of one of the coercive circumstances or conditions set out in the second element is sufficient for penetration to amount to rape. It is not necessary to prove the victim’s lack of consent and there is no requirement of resistance on the part of the victim.

2710. Coercive circumstances need not be evidenced by a show of physical force – threats, intimidation, extortion, and other forms of duress which prey on fear or desperation may constitute coercion. Coercion may be inherent in certain circumstances, such as armed conflict or the military presence of hostile forces amongst the civilian population. Several factors may contribute to creating a coercive environment, such as the number of people involved in the commission of the crime, or whether the rape is committed during or immediately following a combat situation, or is committed together with other crimes.

d. Enslavement (Article 7(1)(c))

2711. Article 7(2)(c) of the Statute defines ‘enslavement’ as the exercise of any or all of the powers attaching to the right of ownership over a person and includes the exercise of such power in the course of trafficking in persons, in particular women and children. The Elements of Crimes include a non-exhaustive list of the various forms in which ownership over a person may be exercised, namely ‘by purchasing, selling, lending or bartering such a person or persons, or by imposing on them a similar deprivation of liberty’.

2712. Indicia for the exercise of the powers attaching to the right of ownership include: (i) control or restrictions of someone’s movement and, more generally, measures taken to prevent or deter escape; (ii) control of physical environment; (iii) psychological control or pressure; (iv) force, threat of force or coercion; (v) duration of the exercise of powers attaching to the right of ownership; (vi) assertion of exclusivity; (vii) subjection to cruel treatment and abuse; (viii) control of sexuality; (ix) forced labour or subjecting the person to servile status; and (x) the person’s vulnerability and the socio-economic conditions in which the power is exerted.

…

e. Sexual Slavery (Article 7(1)(g) and Article 8(2)(e)(vi))

2715. The crime of sexual slavery is a specific form of the crime of ‘enslavement’, penalising the perpetrator’s restriction or control of the victim’s sexual autonomy while held in the state of enslavement. The crime of sexual slavery, whether as a crime against humanity or war crime, is committed when the material element of enslavement is fulfilled and the perpetrator also caused such person or persons to engage in one or more acts of a sexual nature.

f. Forced pregnancy (Article 7(1)(g) and Article 8(2)(e)(vi))

2717. This is the first time forced pregnancy is to be considered by a trial chamber of this Court. The crime of forced pregnancy is grounded in the woman’s right to personal and reproductive autonomy and the right to family.

2718. The Statute adopted a ‘narrow’ definition of forced pregnancy, largely because the provision was ‘one of the most difficult and controversial to draft’. Negotiations for the crime of forced pregnancy were largely driven

with atrocities of the Bosnian conflict in mind, where Bosnian women were raped and then unlawfully detained with the intent to change the ethnic composition of their group by giving birth to half-Serb children.

2721. The resulting definition of forced pregnancy in the Statute is a delicate compromise that specified the mens rea requirement as ‘affecting the ethnic composition of any population or carrying out other grave violations of international law’. A final sentence was added, saying that this crime ‘shall not in any way be interpreted as affecting national laws related to pregnancy’. This final sentence does not add a new element to the offence –and is thus not reproduced in the Elements of Crimes – but allays the concern that criminalising forced pregnancy may be seen as legalising abortion.

2722. As with any crime, forced pregnancy must be interpreted in a manner which gives this crime independent meaning from the other sexual and gender based violence crimes in the Statute. This is demanded by the rule against surplusage, a basic principle of statutory interpretation that presumes that the legislator does nothing in vain and that the court must endeavour to give significance to every word of a statutory instrument. This also implicates the principle of fair labelling, and how the proper characterisation of the evil committed, that is to say, calling the crime by its true name, is part of the justice sought by the victims. It is not enough to punish it merely as a combination of other crimes (e.g., rape and unlawful detention), or subsumed under the generic “any other form of sexual violence’. The crime of forced pregnancy depends on the unlawful confinement of a (forcibly made) pregnant woman, with the effect that the woman is deprived of reproductive autonomy.

i Material elements (actus reus)

2723. The crime of forced pregnancy, whether as a crime against humanity or a war crime, is committed when the perpetrator ‘confined one or more women forcibly made pregnant’. The forcible conception of the woman could occur prior to or during the unlawful confinement. The perpetrator need not have personally made the victim forcibly pregnant – confining a woman made forcibly pregnant by another is necessary and sufficient for the crime of forced pregnancy.

2724. The material element of this crime can be split into two components. The first of these is ‘unlawful confinement’, which means that the woman must have been restricted in her physical movement contrary to standards of international law. …

2725. The second component of the material element is that the woman has been ‘forcibly made pregnant’. This is understood as encompassing the same coercive circumstances described for other sexual violence crimes in the Statute. This means that the woman need not have been made pregnant through physical violence alone. ‘Forcibly’ in this context means force, or threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power, against her or another person, or by taking advantage of a coercive environment, or that the woman made pregnant was a person incapable of giving genuine consent. The existence of such coercive circumstances undermines the woman’s ability to give voluntary and genuine consent.

ii Mental elements (mens rea)

2726. Not every confinement of a forcibly impregnated woman constitutes the crime of forced pregnancy. In addition to the mental elements specified in Article 30, the perpetrator must act with the specific intent of ‘affecting the ethnic composition of any population or carrying out other grave violations of international law’.

2727. This requirement of special intent is phrased alternatively, meaning that the crime of forced pregnancy under the Statute is committed with the intent either to affect the ethnic composition of the population or to carry out other grave violations of international law, e.g., confining a woman with the intent to rape, sexually enslave, enslave and/or torture her.

…

2729. On this understanding, the crime of forced pregnancy consists in the confinement of a forcibly pregnant woman in order to carry out other grave violations of international law, regardless of whether the accused specifically intended to keep the woman pregnant.

…

h. Other inhumane acts, including forced marriage (Article 7(1)(k))

2741. Dominic Ongwen is charged with the crime of other inhumane acts, including forced marriage, within the meaning of Article 7(1)(k) of the Statute. In conformity with the principle of legality, this category of crimes against humanity must be interpreted conservatively and – with due regard to Article 22(2) of the Statute – must not be used to expand uncritically the scope of crimes against humanity. Judicial interpretation within Article 7(1)(k) of the Statute must be consistent with the essence of the offence and in a manner which could have been reasonably foreseen.

2743. The crime of other inhumane acts is committed, either by act or omission, when the following two material elements are fulfilled:

1. The perpetrator inflicted great suffering, or serious injury to body or to mental or physical health, by means of an inhumane act.

2. Such act was of a character similar to any other act referred to in article 7, paragraph 1, of the Statute.

2744. International case-law suggests that serious beatings, subjection to deplorable conditions of detention and requiring persons to witness the beatings or killings of others can constitute other inhumane acts. Other international jurisdictions have also recognised forced marriage as an ‘other inhumane act’ falling under crimes against humanity.

2747. … The Chamber can enter a conviction under Article 7(1)(k) if the perpetrator inflicts great suffering, or serious injury to body or to mental or physical health, by means of a course of conduct which, despite comprising also acts falling under one or more of the enumerated crimes, is, in its entirety, not identical, but is nonetheless ‘similar’ in character in terms of nature and gravity, to those enumerated crimes.

2748. The Chamber considers forced marriage – and the enumerated acts charged out of the same overall course of conduct in this case – to be just such an example. Every person enjoys the fundamental right to enter a marriage with the free and full consent of another person. Marriage creates a status based on a consensual and contractual relationship – it is an institution and also an act or rite. The central element, and underlying act of forced marriage is the imposition of this status on the victim, i.e. the imposition, regardless of the will of the victim, of duties that are associated with marriage – including in terms of exclusivity of the (forced) conjugal union imposed on the victim – as well as the consequent social stigma. Such a state, beyond its illegality, has also social, ethical and even religious effects which have a serious impact on the victim’s physical and psychological well-being. The victim may see themselves as being bonded or united to another person despite the lack of consent. Additionally, a given social group may see the victim as being a ‘legitimate’ spouse. To the extent forced marriage results in the birth of children, this creates even more complex emotional and psychological effects on the victim and their children beyond the obvious physical effects of pregnancy and child- bearing.

2749. Accordingly, the harm suffered from forced marriage can consist of being ostracised from the community, mental trauma, the serious attack on the victim’s dignity, and the deprivation of the victim’s fundamental rights to choose his or her spouse.

B. Legal characterisation of the facts

7. Sexual and gender-based crimes perpetrated directly by Dominic Ongwen (Counts 50 to 60)

i. Forced marriage (Count 50)

3023. [The numbers used by the court, such as P-0099, enable witnesses to be identified but to remain anonymous.] P-0099, P-0101, P-0214, P-0226 and P-0227, who were ‘distributed’ to Dominic Ongwen, were

not allowed to leave. Dominic Ongwen placed them under heavy guard. They were told or came to understand that if they tried to escape they would be killed. These women were ultimately considered Dominic Ongwen’s so-called ‘wives’ and had to maintain an exclusive conjugal relationship with him. Being Dominic Ongwen’s socalled ‘wife’ did not cease until P-0099, P-0101, P-0214, P-0226 and P-0227 escaped or were released from the LRA.

3024. … [T]he Chamber finds that Dominic Ongwen executed the specific legal elements of forced marriage as an other inhumane act, pursuant to Article 7(1)(k) of the Statute.

3025. As concerns the mental elements, due to the nature of the acts performed by Dominic Ongwen and due to the sustained character of the acts over a long period of time, the Chamber considers that Dominic Ongwen meant both to engage in his relevant conduct and to cause the consequence.

ii. Torture (Counts 51-52)

3028. The Chamber found that P-0101, P-0214, P-0226 and P-0227 were subjected to beating at Dominic Ongwen’s command at any time. They were hit with canes and sticks. Some beatings knocked them unconscious, left them unable to walk and left permanent scars. On this basis, the Chamber finds that the first element of torture as a crime against humanity, … and torture as a war crime …, i.e. that the perpetrator inflicted on the victim severe physical or mental pain or suffering, is met.

3029. At the relevant times P-0101, P-0214, P-0226 and P-0227 were abducted and as so-called ‘wives’ they were in custody and under control of Dominic Ongwen. The second element of torture as a crime against humanity, pursuant to Article 7(1)(f) of the Statute is also met.

3031. Considering in particular the circumstances of their abduction, as well as of their stay within the LRA, and more specifically in Dominic Ongwen’s household, the Chamber is also satisfied that P-0101, P-0214, P0226 and P-0227 were civilians at the relevant time. …

3032. As concerns the mental elements, due to the nature of the acts performed by Dominic Ongwen and due to the sustained character of the acts over a long period of time, the Chamber considers that Dominic Ongwen meant to engage in his relevant conduct and to cause the consequence. Considering that Dominic Ongwen knew the victims personally, he also knew of their civilian status.

3033. Finally, and recalling again that failure on the part of P-0101, P-0214, P-0226 and P-0227 to perform the domestic duties assigned to them led to punishment by beating, the Chamber is also satisfied that Dominic Ongwen acted with the purpose of coercing, intimidating or punishing, and that the special intent requirement applicable to torture as a war crime, pursuant to Article 8(2)(c)(i) of the Statute, is therefore met.

…

iii. Rape (Counts 53-54)

3040. … [D]uring the period relevant to the charges, Dominic Ongwen had sex by force with P-0101, P-0214, P-0226 and P-0227. This happened on a repeated basis whenever Dominic Ongwen wanted. On this basis, the Chamber finds that the first legal element of rape as a crime against humanity, … and rape as a war crime, … is met.

3041. Likewise, considering that P-0101, P-0214, P-0226 and P-0227 were abductees, detained and beaten on Dominic Ongwen’s command, and thus living under threat of force in a coercive environment, the Chamber finds that the second legal element of rape as a crime against humanity, pursuant to Article 7(1)(g) of the Statute, and rape as a war crime, pursuant to Article 8(2)(e)(vi) of the Statute is met.

3042. As concerns the mental elements, due to the nature of the acts performed by Dominic Ongwen and due to the sustained character of the acts over a long period of time, the Chamber considers that Dominic Ongwen meant to engage in the relevant conduct.

iv. Sexual slavery (Counts 55-56)

3045. The Chamber found that the seven women ‘distributed’ to Dominic Ongwen were not allowed to leave. Dominic Ongwen placed them under heavy guard. They were told or came to understand that if they tried to escape they would be killed. They were also subjected to beating at Dominic Ongwen’s command at any time. They were hit with canes and sticks. Some beatings knocked them unconscious, left them unable to walk and left permanent scars. The seven women had to perform different domestic duties … . Failing to perform these tasks led to punishment by beating.

3046. … Considering that Dominic Ongwen, as described, deprived them of their personal liberty, restricted and dictated their movement, including by threats and subjecting them to armed guard, subjected them to forced labour, and physically and psychologically abused them, the Chamber finds that Dominic Ongwen exercised powers attaching to the right of ownership over these women by imposing on them a deprivation of liberty … . The first element of sexual slavery as a crime against humanity, … and sexual slavery as a war crime, … is therefore met.

3047. The Chamber further found that Dominic Ongwen had sex by force with P-0101, P-0214, P-0226 and P0227. This happened on a repeated basis whenever Dominic Ongwen wanted during the time in which these women were deprived of their personal freedom. Accordingly, the Chamber finds that the second element of sexual slavery as a crime against humanity, … and sexual slavery as a war crime, … – i.e. that the victims were caused to engage in one or more acts of sexual nature, which, in the present case took the form of repeated rapes – is also met.

3048. As concerns the mental elements, due to the nature of the acts performed by Dominic Ongwen and due to the sustained character of the acts over a long period of time, the Chamber considers that Dominic Ongwen meant to engage in the relevant conduct.

vi. Forced pregnancy (Counts 58-59)

3057. The Chamber found that Dominic Ongwen had sex by force with his so-called ‘wives’, including with P0101 and P-0214 [each of whom gave birth to children]. …

3058. … [D]uring their pregnancies [they] were not allowed to leave. Dominic Ongwen placed them under heavy guard. They were told or came to understand that if they tried to escape they would be killed.

3059. On this basis, the Chamber finds that Dominic Ongwen confined P-0101 and P-0214, who had been forcibly made pregnant. The objective element of forced pregnancy as a crime against humanity, … and forced pregnancy as a war crime, … is met.

3060. As concerns the mental elements, due to the nature of the acts performed by Dominic Ongwen and due to the sustained character of the acts over a long period of time, the Chamber considers that Dominic Ongwen meant to engage in the relevant conduct.

3061. Moreover, the Chamber finds that Dominic Ongwen confined P-0101 and P-0214, who had been forcibly made pregnant, with the intent of sustaining the continued commission of other crimes found, in particular of forced marriage, torture, rape and sexual slavery. The special intent requirement of the crime of forced pregnancy is therefore equally met. …

vii. Outrages upon personal dignity (Count 60) …

3064. The Chamber found that on 1 July 2002, Dominic Ongwen forced P-0226 to beat to death a captured UPDF soldier near Patongo, Northern Uganda. P-0226 hit him once, as did other girls. She had blood splattered on her clothes. P-0226 had never killed anyone before, and this was part of the reason Dominic Ongwen gave as to why he selected her to do this. This experience caused her severe anguish. …

3065. The Chamber finds that by forcing P-0226 to beat a person to death, in the circumstances as described, constituted a violation of her dignity, and that this violation of the dignity was so severe as to be generally recognised as an outrage upon personal dignity. … The first and second elements of outrages upon personal dignity as a war crime, pursuant to Article 8(2)(c)(ii) of the Statute are met.

THE PROSECUTOR V. DOMINIC ONGWEN SENTENCE, TRIAL CHAMBER IX (6 MAY 2021)

…

386. … [F]rom the perspective of the extreme gravity of the crimes committed by Dominic Ongwen, including the degree of his culpable conduct, a joint sentence of life imprisonment would surely be in order … . … [T]he Chamber has, however, decided not to sentence Dominic Ongwen to life imprisonment … .

…

388. The Chamber is confronted in the present case with a unique situation of a perpetrator who willfully and lucidly brought tremendous suffering upon his victims, but who himself had previously endured grave suffering at the hands of the group of which he later became a prominent member and leader. … The fact [of Ongwen’s abduction and brutal socialization] … in no way justifies or rationalises the heinous crimes he willfully chose to commit as a fully responsible adult; however, these circumstances … make the prospective of committing him to spend the rest of his life in prison … excessive.

389. … By no means does Dominic Ongwen’s personal background overshadow his culpable conduct and the suffering of the victims … . Nevertheless, the specificity of his situation cannot be put aside in deciding whether he must be sentenced to life imprisonment for his crimes. …

390. Envisaging a concrete prospect for Dominic Ongwen to eventually re-build his life – while adequately punished for the crimes committed – in a new, more healthy environment … is one of the conflicting driving forces for the Chamber’s ultimate consideration … . …

391. It is with these considerations in mind that the Chamber has decided not to sentence Dominic Ongwen to the – exceptional – penalty of life imprisonment.

…

393. … [N]o imprisonment for a period shorter than 25 years could constitute an adequate, proportionate and just joint sentence in light of all relevant circumstances of the present case. …

394. In addition, while not an aggravating factor in and of itself or an element otherwise impinging as such on the length of the prison sentence to be imposed in the present case, the Chamber cannot overlook the absence, in Dominic Ongwen’s submissions during the hearing on sentence, of any expression of empathy for the numerous victims of his crimes – and even less of any genuine remorse – supplanted by a lucid, constant focus on himself and his own suffering eclipsing that of anyone else.

11. Indeed we must take into account Dominic Ongwen’s circumstance as former child soldier whose life might have taken a different turn altogether had it not been for that fateful morning of his abduction. …

12. However, the Court must weigh those individual circumstances against the ‘gravity of the crime’ under Article 78 and other factors, among them, “the extent of the damage caused, in particular the harm caused to the victims and their families” (Rule 145(1)(c).

13. It is exactly because of the extreme gravity of the crimes, including the degree of Dominic Ongwen’s culpable conduct and, in particular, the deep and permanent physical and psychological harm caused to the victims and their families, that I find that the ‘adequate, proportionate and just joint sentence in light of all relevant circumstances of the present case’ is a sentence of imprisonment for 30 years.

THE PROSECUTOR V. DOMINIC ONGWEN THE APPEALS CHAMBER (15 DECEMBER 2022)

[The Appeals Chamber unanimously rejected the 90 grounds of appeal against conviction put forward by Ongwen’s defence team. It also unanimously rejected ten out of the 11 grounds of appeal raised in the sentencing appeal. The principal area of contention was whether the approach used by the Trial Chamber had inappropriately double-counted certain offences. The other contested issue concerned the significance that should be attached to Ongwen’s abduction and brutalization as a child soldier himself. Four of the five judges in the Appeals Chamber agreed with the Trial Chamber that it was appropriate to address the issue only in the context of sentencing. The President of the Appeals Chamber dissented. Her Opinion follows.] PARTLY DISSENTING OPINION OF JUDGE LUZ DEL CARMEN I

BÁÑEZ CARRANZA

XI. CONCLUSION

…

196. The dissenting judge considers it appropriate at this concluding stage to recapitulate all the points made in this opinion.

a. There has been a clear legal error in the reasoning of the Trial Chamber. It attached weight twice to the number of victims, as part of the gravity assessment and as an aggravating factor in relation to 20 out of the 61 individual sentences imposed on Mr Ongwen. This resulted in unfairness in the sentencing proceedings … .

b. The most appropriate relief in this case is to reverse the joint sentence impose and to remand the matter for the Trial Chamber to impose a new sentence;

c. Mr Ongwen’s abduction, conscription, violent indoctrination, being forced to carry out and participate in criminal acts, when he was still a defenceless child of about nine years of age and his upbringing in the coercive environment of the LRA had a long-lasting impact on his personality, the development of his brain and moral values, and future opportunities. These circumstances merit significant weight in mitigation when imposing a new sentence on Mr Ongwen;

d. In addition, Judge Ibáñez Carranza wishes to use this opportunity to acknowledge the violation of Mr Ongwen’s basic human rights that affected his dignity as a human being. Given the expressive nature of judicial decisions, and specifically of international criminal judgments, recognising in this case the crimes of which Mr Ongwen was a victim provides the means to acknowledge his victim status and re-instate the dignity that was taken away from him when he was a defenceless child;

Issues Raised by the OngwenCase

The excerpts above from the 2021 Trial Chamber judgments and the 2022 Appeals Chamber illustrate many aspects of the way in which the ICC functions. They also illustrate the Statute’s narrow definition of duress which would exclude criminal responsibility, the elements of specific crimes, definitional approaches, how different crimes relate to one another, and the type of evidence considered by the court. In the materials that follow, we focus on several of the more contentious issues raised.

A. GENDER

The Ongwen case was path-breaking in relation to the emphasis placed upon sexual and gender-based crimes and in charging certain crimes for the first time. Nonetheless, critics have suggested that it did not go far enough. It

has been argued, for example, that the crime of forced pregnancy could have been treated in greater depth, thereby better situating ‘this crime and its impact as well as plac[ing] the victims at the forefront of consideration.’693 Others have argued that the separate crime of gender persecution should have been investigated and prosecuted in order to increase the visibility of this issue, to recognize the direct harms suffered by victims, and to lay the groundwork to address the situation of people of different sexual orientations and gender identities in future prosecutions.694

Following the Ongwen case, and in response to a range of suggestions that a more systematic approach be adopted in future, the Office of the Prosecutor, announced a new Policy on the Crime of Gender Persecution in December 2022. The policy specified (para. 4) that ‘[g]ender persecution is committed against persons because of sex characteristics and/or because of the social constructs and criteria used to define gender’, and noted that (para. 5) LGBTQI+ persons were included in this regard. The Policy states (para. 10) that the ‘perpetrators’ discriminatory intent may intersect with other grounds for persecution prohibited under the Statute, and also reflect existing social constructs or criteria used to define targeted groups based on, for example, race, ethnicity or culture, or impose new ones.’ In December 2023, the OTP announced a ‘Policy on Gender-based Crimes’ covering crimes involving sexual, reproductive and other gender-based crimes.

B. SENTENCING

Article 77 of the Rome Statute authorizes the Court to impose: ‘(a) Imprisonment for a specified number of years, which may not exceed a maximum of 30 years; or (b) A term of life imprisonment when justified by the extreme gravity of the crime and the individual circumstances of the convicted person.’ While the Ongwen case illustrates different perspectives on the appropriate sentence, the ICC has been very significantly influenced by the practice of the ICTY in this area, as described by Margaret M. deGuzman, in ‘Punishing for Humanity’, in Carsten Stahn et al. (eds.), Legacies of the International Criminal Tribunal for the Former Yugoslavia (2020) 391:

The ICTY’s judges chose to forge new global norms rather than adhere to, or even be strongly guided by, the sentencing norms of the former Yugoslavia. The ICTY Statute itself diverged from national norms in some respects, in particular by rejecting the death penalty, but also required the judges to consult national practices in determining sentences. The judges interpreted this requirement loosely, reserving to themselves a wide discretion that enabled them to identify a range of global sentencing objectives and factors to apply in pursuit of those objectives.

… [T]the Rome Statute and the ICC Rules of Procedure draw significantly on the norms developed at the ICTY. The ICC’s judges have followed ICTY jurisprudence, for instance, in holding that the gravity of the offense ‘is a principal consideration in imposing a sentence’[, and in emphasizing] their discretion to determine relevant factors in the gravity analysis as well as aggravating circumstances. ICC judges have cited ICTY judgments liberally in support of their gravity analyses, … for their holding that gravity factors cannot be double counted as aggravating factors … that admission of guilt can be a mitigating circumstance, that efforts to promote peace and reconciliation can be counted in mitigation, and that statements of remorse can affect sentencing.

C. THE VICTIM-PERPETRATOR DILEMMA

The Trial Chamber gave greater consideration to this issue in the sentencing phase than in its original judgment. Consider the following comments:

Ayodele Akenroye and Kamari Clarke, ‘Deconstructing the Complexities of Violence: Uganda and the Case against Dominic Ongwen’, in Sarah Federman and Ronald Niezen (eds.), Narratives of Mass Atrocity: Victims and Perpetrators in the Aftermath (2022) 78, at 101:

693 T. Kirabira, A. Ringin and R. Grey, ‘Feminist Judgments at the International Criminal Court: The Case of Dominic Ongwen’, iCourts Working Paper Series, no. 294, (2022).

694 M. Kumskova, ‘Invisible Crimes against Humanity of Gender Persecution: Taking a Feminist Lens to the ICC's Ntaganda and Ongwen Cases’, 57 Tex. Int’l L. J. (2022) 239.

… During the sentencing hearing, Dominic Ongwen spoke extensively for more than one hour where he gave chilling accounts of how he was made to kill people, drank human blood, was forced to commit inhumane acts while a minor, and the life changing consequence on him. Yet, the ICC judgment failed to deal with the impact of trauma and Dominic’s “loss of humanity,” and instead found him not to be damaged and that immediately he turned eighteen he had the agency to decide what is morally right from what is morally wrong, including choosing not to escape like other abductees.

Mark Drumbl, ‘“Getting” an Unforgettable Gettable: The Trial of Dominic Ongwen’, Justice in Conflict blog (5 February 2021):

… Now we have a former child soldier convicted in the solemnity and seriousness of a vaunted and vaulted one-of-a-kind court designed to prosecute those most responsible world-wide for atrocity. Yes, this man hurt many others. No one denies it. Had the ICC wished to convict, however, a more honest track would have been to explicitly say: this man is broken, he was kidnapped at the age of ten, brutalized and beaten so he brutalized and beat others, he raped and killed so many and so cruelly, but we just don’t care about his childhood, we just don’t care about his victimization, we don’t care about his neurological development – all we care about is what he did, regardless of why, and tout comprendre c’est tout pardonner [to understand all is to forgive all], and we refuse that for reasons that have nothing to do with him, as perpetrator, but instead with us, as judges, hungry for a role, and for the victims, achingly deserving of redress.

Instead, the judgment leaves us with an artifice of sorts. We have a man who had no childhood, shoehorned into one box, a reductionism of sorts.

…

… [I]n pursuing this case the ICC continues its trajectory of specializing its judicial efforts on rebels who lost their rebellions, mostly in Africa, and its path of successfully prosecuting implicated mid-level characters. This, too, is fine; these characters have committed terrible crimes. But is it not fair to wonder whether this is what was intended on that euphoric day, July 17, 1998, when all this formally began?

In convicting and spectacularizing Ongwen, while pursuing its goals of convicting who it can, the ICC also indirectly buoys those it cannot, will not, or lacks the spine to try to convict. While Ongwen faces his reckoning for violence between 2002 and 2005, President Museveni benefits from impunity for his conduct … . But without President Museveni’s nod, the ICC would not have delivered judgment against Ongwen. …

[M]uch of life ‘just happens’, perhaps, and so too with much of atrocity, which tragically is part of human condition. Yet this is not how international criminal law constructs its accused. International criminal law constructs them as plotters and planners, as intentional movers and shakers, as willful and wanton. It needs to construct them this way. After all, courts punish to deter others. Courts punish to ensure that others not make the same patterned choices. The immediate lesson from Ongwen, then, is that little children and adolescents kidnapped into invidious armed groups should try not to become socialized into hurtful adults. They should try to ‘grow up right’, on their own. They should resist. They should act far more respectfully than the adults and authority figures around them. They should be disobedient. This is the conduct immediately encouraged by the Ongwen verdict.

…

To ‘us’, to the judges, to the legal industry of international criminal law, Ongwen is truly the ‘other’. Hence, his trial becomes a bit of a spectacle. Perhaps a jury of actual peers

tasked with processing all of this and authenticating it in some sort of judgment would have proceeded differently, and spoken and written in an alternate cadence, even if arriving at a similar outcome.

QUESTIONS

How do you react to the suggestion that international criminal justice is still very much a concept in the making and that the ICC is learning from past mistakes and changing its approach as new cases arise? Consider the following comment, comparing the approach adopted in the Ongwen case with that reflected in three earlier cases, all of which involved suspects from the DRC. Those cases were contentious and led to two acquittals as well as two convictions:

The mixed record of the Congo trials prompted widespread reflection among Court stakeholders – but any lessons learned seemed to widen the gaps. Both Prosecution and Defense repositioned themselves in tactical ways, seeking to avoid prior hazards. Judges in all phases were unable to hide the rifts that surfaced in the Bemba appeals process, while remaining as decorous as possible in their disagreements.

1. The Prosecution multiplied charges and modes of liability. In contrast to the simple charges and single events tested out in the Ituri trials, the Prosecution now asserted all of its charging options at the pre-trial confirmation stage. The next trials would encompass multiple criminal charges, all modes of liability, and a proliferation of criminal events or attacks, swelling the “facts and circumstances” controlling the scope of proceedings. …

2. The Prosecution submitted mountains of evidence, confident of avoiding early filters of admissibility, and hopeful that the mantra of holism would leverage the weaker parts – including quantities of anonymous hearsay and circumstantial evidence. …

3. The Defense spread itself thin to meet these shape-changing master narratives, while searching for some overarching doctrinal backstop. For Ntaganda, that line of defense was standard military necessity; for Ongwen, it was the embattled doctrine of psychological duress. Both were unable to block the evidentiary flood. …695

4. Backlash Against African Prosecution

By 2017, the ICC had been in existence for 15 years, but all of the situations it had under review were in Africa. The situations in Uganda, the Central African Republic, the Democratic Republic of the Congo and Mali were all referred by the respective governments, and all involved rebel leaders. Two other situations, Darfur (Sudan) and Libya were referred by the Security Council and led to indictments against the respective heads of state, Omar al-Bashir, and Muammar Gaddafi. Two other situations, involving Kenya and Côte d’Ivoire, were initiated by the Prosecutor using his proprio motu powers.

This stark imbalance led to backlash from different quarters. Various African governments accused the Court of racial bias. Several African states led by Kenya, whose prominent political figures, including two future presidents, were under indictment mounted a powerful counter-attack. Non-African governments were aware of the unsustainability of the situation and the OTP began to engage in more determined inquiries and investigations elsewhere. Scholars also weighed in to this battle.696 Christopher Gevers, in ‘Africa and International Criminal Law’, in Kevin Heller et al. (eds.), The Oxford Handbook of International Criminal Law (2020) 154 argues that the relationship between Africa and international criminal law needs to be seen in light of a much longer history than just that of the ICC. ‘[T]he question [then] becomes not whether ICL (or the ICC)

695 R. Gaskins, The Congo Trials in the International Criminal Court (2020) 457.

696 A. B. Rukooko and J. Silverman II, ‘The International Criminal Court and Africa: A Fractious Relationship Assessed’, 19 Afr. Hum. Rts. L. J. (2019) 85.

might be a field that operates on neo-colonial and racist lines, but whether it might have been anything else (or might yet be).’ Consider the following critique of the Court for ‘criminalizing Blackness’.

RACHEL LÓPEZ, BLACK GUILT, WHITE GUILT AT THE INTERNATIONAL CRIMINAL COURT

MATIANGAI SIRLEAF (ED.), RACE AND NATIONAL SECURITY (2023) 211

Introduction

All but one defendant convicted at the International Criminal Court (ICC) has been a Black man. This is not a coincidence. … [T]he jurisdictional and substantive law that governs the ICC systematically results in Black guilt being heightened while White guilt is minimized. With these convictions, the ICC builds on a long history of criminalizing Blackness … . Since the ICC supposedly prosecutes only “the most serious crimes of international concern,” these convictions express the not-so-subtle suggestion that the “worst of the worst” criminals on the planet are Black men. More troubling still, given the longstanding characterization of international crimes as evil, it perpetuates well-documented stereotypes of darker skin being associated with wickedness, thereby building on a pernicious narrative of the “evil Black body.”

…

I.

Institutionalizing Black Guilt

…

… [T]he outsized role of the U.N. Security Council in the matters handled by the court is partly to blame. …

… The Security Council has only asked the ICC to investigate crimes in two African nations, Sudan and Libya, but issued no referrals for documented torture and war crimes by the United States and United Kingdom in Iraq and Afghanistan. While Article 16 of the Rome Statute was meant to allow the Security Council to step in and delay prosecutions if doing so is in the interest of maintaining peace and security, so far, it has only been used to immunize White guilt, shielding the citizens of majority White nations from the court’s reach. In fact, the first evocation of the Security Council’s deferral power was only made after the United States threatened to veto a resolution renewing the U.N. peacekeeping mission in Bosnia (as well as all other future peacekeeping operations) unless a provision immunizing its troops from criminal liability was included. Since then, the Security Council has invoked Article 16 two additional times, each time at the United States’ behest to immunize soldiers from any criminal liability resulting from military operations authorized by the Security Council.

While the Security Council has used Article 16 to minimize the guilt of White majority nations, it refused to use this power to defer investigations in two African nations, Sudan and Kenya, despite repeated requests from the African Union to do so. Functionally, this has meant that White leaders who authorized torture like George W. Bush and Donald Rumsfeld have evaded criminal liability before the ICC, while Black and Arab-African heads of state like Uhuru Muigai Kenyatta and Omar al-Bashir faced charges.

… [T]he temporal and definitional limitations on what counts as a prosecutable crime before the ICC renders White violence less visible and consequential. … [T]he crimes committed before the Rome Statute entered into force on July 1, 2002 are off the table. … [T]his narrow temporal gaze often obfuscates the role of colonial powers in the violence under investigation by the ICC and shields them from prosecution for their past empirebuilding crimes, most notably slavery and genocide. In a broader sense, these rules have criminalized the processes by which Global North became wealthy, at the same time as effectively granting them de facto amnesty for those same acts.

The impunity for colonial era crimes of the Global North is compounded by the fact that the type of violence currently perpetrated by these majority White nations also tends to be untouched by international criminal law, while those crimes which typify Western stereotypes of Black men have been vigorously pursued. First, as Kamari Clarke illuminated in her groundbreaking book, Fictions of Justice, the choice of acts considered to be the “most serious crimes of international concern” under the Rome Statute and therefore prosecutable by the ICC exacerbates Black guilt, while mitigating White guilt. Omitted from actionable crimes are those most likely to be committed by majority White nations, such as colonial domination, economic aggression, the use of nuclear

weapons, the recruitment, use, financing, and training of mercenaries, and environmental atrocities. These crimes were all dropped during the negotiation of the Rome Statute because they were considered to “devalu[e] the concept of crimes against the peace and security of mankind.” …

II. Prosecuting Evil

In response to allegations of anti-African bias, supporters of the ICC have claimed that the focus on Africa is not racially motivated, but rather is just the unfortunate result of following the rules. For example, former ICC prosecutor, Luis Moreno Ocampo … characterized allegations of African bias as “hypocrisy,” saying “we are in Africa for two reasons: the most serious crimes under ICC jurisdiction are in Africa…and African leaders requested the court’s intervention.” In essence, his argument, much like those of other proponents of the ICC, is that we should not be concerned with racism at the court, because the exclusive prosecution of African defendants resulted from a race-neutral application of the law. …

Conclusion

… The broader effect of such systemic bias at the ICC is particularly invidious because it reinforces welldocumented racialized associations of dark skin with evil. A deeper reckoning with the rules that yield such consistently racially discriminatory results is imperative especially given the increased prominence of expressive theories of punishment in international criminal law, which justify criminal prosecutions for their role in communicating the international community’s sense of right and wrong. …

Kenya and the ICC

In seeking to understand how the Court got into this situation, it is helpful to explore two of the situations –those relating to Uganda and to Kenya – in more detail.

The ICC’s attempted engagement with the situation in Kenya stands in marked contrast to the Ongwen case. The latter involved a single individual who had eventually surrendered and who had no political support. He was charged with specific crimes, and the ICC was able to obtain access to and detailed evidence from many key witnesses. In Kenya, the principal defendants were very high-level politicians, with continuing links to the government in power, access to a well-funded and high-powered defence team, and in a position to obstruct investigations within Kenya.

By way of background, post-election violence in six of Kenya’s eight provinces, in 2007-2008 led to the killing of over 1,000 people, 900 documented acts of rape and sexual violence, 350,000 people displaced, and over 3,500 seriously injured. On 31 March 2010, Pre-Trial Chamber II granted the Prosecutor's request to open an investigation proprio motu (on their own initiative). It did so after noting the Prosecutor’s submission alleging ‘…elements of brutality, for example burning victims alive, attacking places sheltering IDPs, beheadings, and using pangas and machetes to hack people to death’, and that perpetrators, among other acts, allegedly ‘terrorized communities by installing checkpoints where they would select their victims based on ethnicity, and hack them to death, commonly committed gang rape, genital mutilation and forced circumcision, and often forced family members to watch.’

The ICC’s website (https://www.icc-cpi.int/kenya) notes dryly that:

The investigation has produced two main cases, originally with six suspects, involving charges which include the following crimes: crimes against humanity: murder, deportation or forcible transfer of population, persecution, rape, and other inhumane acts. However, charges were not confirmed or were withdrawn concerning these six suspects.

The suspects included two senior politicians: Uhuru Kenyatta, a member of the Kikuyu ethnic group, and William Ruto, a Kalenjin, who were accused of masterminding the ethnic violence against one another’s

communities in the 2007 election. As the threat of international prosecution before the ICC grew, the two formed a successful alliance in the 2013 election. Kenyatta was elected President, and Ruto Vice-President. What happened thereafter is recounted by Susanne D. Mueller, in ‘Kenya and the International Criminal Court (ICC): Politics, the Election and the Law’, 8 J. East. Afr. Stud (2014) 25:

Winning the election was part of a key defense strategy to undercut the ICC by seizing political power, flexing it to deflect the ICC, and opening up the possibility of not showing up for trial if all else failed. The strategy entailed using a series of delaying tactics to ensure that the ICC trials would not start until after the defendants had won the election and gained power at the highest level. The tactics ranged from mobilizing international organizations against the ICC, making numerous, legal challenges designed to delay the court, and the intimidation of potential witnesses, allegedly by defense sympathizers and go betweens, to keep them from assisting the ICC. The tactics were part of a larger design to undercut the ICC. Demonizing opponents, politicizing ethnicity, and attacking the ICC as a tool of the West both before and during the presidential campaign served this end and victory in the election. …

Indicative of attempts to undermine the ICC process were the plethora of attacks against witnesses. This included intimidating, bribing, and killing them. The message being sent both by the state, which did nothing to protect witnesses and victims as required by the Rome Statute, and allegedly by the defendants and their supporters, was that if individuals cooperated with the ICC’s investigations, they would pay heavy costs. Many did. As each trial date neared, more witnesses dropped out, thereby forcing the ICC to find others. This compelled the defense to ask for more time to review the new evidence, precipitating a vicious circle of delays and the need for more witnesses and more time. Politics began to trump the law as the defendants’ political risk increased. Early on it appears there was a plan to eliminate, intimidate, and bribe people who knew too much about the [post-election violence], key individuals who were part of it, and civil society activists who were assisting and sheltering potential witnesses. Leaving none to tell the story was an apparent tactic to get rid of key witnesses while simultaneously attacking the credibility of others. The aim was to get the cases dropped for lack of evidence even before the ICC’s investigation began and charges were confirmed. Later, it was to destroy the credibility of other witnesses who remained and to delay or halt the onset of trials both before and after the 2013 presidential election.

Eventually, all six cases collapsed and the ICC was left to try two defendants for ‘offences against the administration of justice consisting in corruptly influencing witnesses regarding cases from the situation in Kenya’. Only one defendant came into the Court’s custody, and he died in October 2022 before his trial could be completed.

Mark Kersten, in ‘Will Justice catch up with those responsible for Post-Election Violence in Kenya?’, Justice in Conflict blog (1 September 2022), focuses on another dimension of the situation:

Over this period, Kenya’s government and its allies focused on two claims. The first was that the ICC was an illegitimate court and ‘plaything’ of colonial powers. To this end, Kenyatta’s government hired British public relations experts to spread its word and undermine the standing of the Court.

Kenyatta and Ruto’s second claim was that Kenya was able and willing to investigate any alleged wrongdoing itself. Senior officials, including the Attorney General Githu Muigai, repeatedly stated that Nairobi would set up an International and Organized Crimes Division as part of its judiciary capable of investigating and prosecuting any perpetrators of atrocities. It never happened. What did transpire, however, was that Kenyatta and Ruto stayed in and consolidated their power, as much of the world slowly forgot about the 2007/08 atrocities.

Kenyatta and Ruto remained in office until August 2022, but by then had fallen out over various issues. Ruto won the election in that year and became President. Kersten draws an important lesson from this series of events:

…[T]his means that the country’s last two heads of state will have been implicated in atrocities and tried, unsuccessfully, at the ICC.

Where does that leave justice and accountability efforts in Kenya?

Exactly as they were. There is no reason to believe that a Ruto government will show any interest in revisiting, let alone doing something, about the rights violations committed in 2007/08.

…

One of the most important yet neglected lessons of the world’s experiment with international criminal law is that it is not the ICC, the United Nations or any international body which is most responsible for those rare moments when justice and accountability is delivered; it is changes in the domestic political arena. When investigating and prosecuting atrocities becomes important to the national leaders in charge, it becomes possible.

The context in Kenya has never been ripe for justice and accountability. Not once since 2007/08 has there been a serious attempt to address the widespread and systematic crimes that were committed following the presidential election. There has been a lot of talk and a many empty promises.

If ever accountability is to be pursued, it won’t be because of the ICC or any international institution, but because the Kenyan people want it and because leaders not implicated in violence, atrocity, and corruption can successfully run for office.

Uganda and the ICC

It is also helpful to see the Ugandan case in its broader political and legal context. Compare the next two readings. The first, by a leading Ugandan scholar, explains how the referral of the situation involving the Lord’s Resistance Army to the ICC fitted in with the interests of the Ugandan Government. The second, by a German scholar who observed the trial of Dominic Ongwen, raises the question of whether the trial was little more than the continuation of colonialism by different means.

JOE OLOKA-ONYANGO, UNPACKING

THE AFRICAN BACKLASH TO THE

INTERNATIONAL CRIMINAL

COURT (ICC)

: THE CASE OF UGANDA AND KENYA 4 STRATHMORE L. J. (2020) 41

…The initial reference of the Northern Uganda situation by President Museveni to the ICC in December 2003 was done over strenuous objections from domestic civil society and the local human rights community …

… President Museveni’s actions were not simply to internationalise the conflict in northern Uganda. They were also designed to buttress his credentials as the regional power broker, and to divert attention from a costly misadventure in the DRC. It is not by coincidence that the overtures to the ICC were taken in parallel to the judicial claim filed by the DRC at the International Court of Justice (ICJ) with the proceedings against Uganda being commenced in mid-2003 while a judgment was eventually returned against the country at the end of 2005. Meanwhile, arrest warrants were issued on 8 July 2005 and 27 September 2005 for Joseph Kony and four members of the LRA high command on 33 separate counts of war crimes and crimes against humanity, including murder, rape, enlisting of children, and sexual enslavement.

When peace talks were initiated between the Government and the LRA in mid-2006, the ICC insisted on pursuing the referrals irrespective of the Juba peace negotiations taking place between the two sides. This angered the Ugandan President and led to the first souring in the relationship. Although the ICC made a pretense of supporting the measures taken by Uganda with regard to the traditional justice rites of Mato Oput and its ilk, it was a lukewarm embrace. In a way however, the ICC process did undermine efforts at a victimoriented resolution of the conflict by focusing attention on capture, prosecution and conviction of only the LRA. At an international conference in Nuremburg, the ICC Prosecutor was quoted as saying, ‘calling for amnesties, the granting of immunities and other ways to avoid prosecutions.... are not consistent with the Rome Statute.... there can be no political compromise on legality and accountability’. Regardless of local developments, these remarks demonstrated that the ICC wanted to see the LRA prosecution through to its logical conclusion. Additionally, international organisations had a role to play in influencing the Prosecutor not to back down.

Matters were also not helped by the fact that the ICC approach was opposed by the local political leadership in Acholi land, Ugandan civil society at large, as well as by several academics and media pundits. Given the prominent manner in which the traditional justice elements featured in the peace settlement alongside the question of amnesty, the ICC felt that it was being blind-sided by the Ugandan Government. The referrals of the LRA obviously raised many questions about the role of the other party to the conflict, the Uganda Peoples’ Defence Forces (UPDF).

… [After] the Kenyan referrals were announced. Museveni must have felt they were too close to home for comfort. Hence, at the inauguration of President Kenyatta in early 2013, Museveni saluted the Kenyan voters for rejecting what he described as ICC ‘blackmail’, even claiming that ‘the usual opinionated and arrogant actors’ wanted to install leaders of their choice in Africa and ‘... eliminate the ones they do not like’.

An element of duplicity on the part of the Ugandan Government with regard to the ICC becomes even more apparent [with] its reaction to Sudanese President Bashir’s referral to the Court in 2009 … . [In] 2014, Uganda had accused Sudan of resuming its support for the LRA rebels to the extent that Uganda filed a complaint with the Organisation of Islamic Cooperation (OIC). One would imagine that Uganda would not be quick in leaping to the defence of Bashir as against the ICC when in the past, it accused him of supporting/funding rebels in a case it ‘voluntarily’ referred to the same Court. That it would do so can only, ipso facto, point to double standards. It is plausible to thus assume that although Uganda joined the cacophony of African states expressing concern about the Sudan referrals, Kampala was not overly distressed about the lodestone placed on Bashir’s neck.

… [T]he referral of Libya to the ICC was another matter because it involved President Gaddafi, a long-time ally of the regime in Uganda. Museveni then declared that he was ‘totally allergic to foreign, political, and military involvement in sovereign countries, especially the African countries’. True to his (new) word, Museveni became one of the most vociferous opponents of the ICC within the African Union (AU) and instigated some of the discussions around not simply non-cooperation with the office of the Prosecutor, but complete withdrawal from the Rome Statute.

However, duplicity was not just confined to Kampala or The Hague. Behind the scenes, the United States saw an opportunity in the Kony referrals to pursue its global anti-terrorism agenda, and hence supported the actions of the Ugandan Government against the LRA up to its elusive search for Kony and his lieutenants in the jungles of the DRC and the CAR.

The Government’s mixed signals over its ‘Kony problem’-to wit seeking the prosecution of the LRA rebels internationally (before the ICC) on the one hand, while also advocating for domestic prosecution (and traditional forms of justice or ‘peaceful reconciliation’) … [did not lead it to object] to the Hague trial of Dominic Ongwen … . … The inconsistency in the Government’s position was thus stark and logically suggestive of duplicity.

At the end of the day, in his relations with the ICC, Museveni was both able to have his cake and to eat it, deftly selecting when, where, how and on what terms and issues he chose to cooperate with the institution and on those over which he did not. He was also adept at jumping on the victimisation band-wagon when circumstances suited him, pushing the AU to adopt increasingly more hostile positions towards the institution. Ultimately, the Ugandan victims of both the LRA and the UPDF were short-changed in the process as efforts directed towards

truth and reconciliation were given short shrift and wider questions of accountability thus ignored. In contradistinction to the noble ‘justice-oriented’ aims for which the Rome Statute and the Court under it were envisioned, Uganda and the ICC had resorted to an alliance without ‘righteous foundation’. Little good could therefore come out of it.

JONAS BENS, THE SENTIMENTAL COURT: THE AFFECTIVE LIFE OF INTERNATIONAL CRIMINAL JUSTICE (2022) 171

Epilogue: Affect and Colonialism

On February 4, 2021, … the judges of the ICC found Dominic Ongwen guilty of war crimes and crimes against humanity. Two weeks earlier, Yoweri Kaguta Museveni had won the general election and, despite allegations of election fraud and violent suppression of the political opposition, entered his sixth term as president of Uganda. Ongwen’s conviction, which carries a prison sentence of twenty-five years, most likely marks the end of the ICC’s criminal prosecution in northern Uganda. …

The judgment was presented by the presiding judge, Bertram Schmitt, from Germany. He made his remarks slowly and carefully, his face showing a solemn expression. … [He stated:]

Let me emphasise that it was difficult for the Chamber to ascertain the names of every victim of the several crimes. Yet, in many cases the Chamber was able to do so. These victims have a right not to be forgotten. They have the right to be mentioned explicitly today, as they are in the judgment as well. Please bear with me if I pronounce names incorrectly.

This brief scene profoundly affected me, but in several quite ambivalent ways. It triggered an intense awareness of the colonial structure of our contemporary world. What struck me immediately, and maybe this was just on the surface of the arrangement, was the constellation of bodies: a white European man sitting in judgment over a black African, deciding his fate. This encapsulates the colonial constellation in a nutshell. Second, Schmitt evokes the African victims of violence to legitimize this constellation of bodies in which he speaks. He presents himself and his colleagues at the bench as people who take the side of the victims and do not want them to be forgotten. The “specter of the victim” as a prevalent trope of colonialism at the center of international criminal justice has been formidably and critically analyzed by Kamari Clarke in Fictions of Justice (2009). Colonialism can mean many different things, but at its core, it means intervening in the sphere of others and deriving the legitimation for this intervention from one’s own system of rules. Schmitt is aware that he is meddling in the affairs of others whose names he has difficulty pronouncing. He is doomed to let this awareness show in his awkward apology to the audience. This small scene brings the colonial constellation to life in an uncanny way –it is a colonial awkwardness that feels all too familiar.

…

[The author then refers to the critique by Mahmood Mamdani, in Ch. 2, above, of the Nuremberg model as the wrong template for bringing justice in the aftermath of violence.] … In Mamdani’s analysis, the Nuremberg tribunals did not even work in Germany in the late 1940s. In his book, Mamdani proposes something else: instead of constructing victims and perpetrators after violent conflict, a society should come together as survivors of violence … .

I agree with Mamdani’s analysis, which is shared by most of the anthropologists who write about transitional justice, that the system of international criminal justice cannot be separated from the colonial structures governing the global capitalist order in which it was conceived and in which it operates. But … I find Mamdani’s suggestion that “Nuremberg” was a mistake, that it was the wrong thing to do, thoroughly repellent. It feels inconceivable to me that Jewish Germans who survived the death camps and former Nazi officials could ever somehow come together as “survivors of the Third Reich.” … The proposition that it would have been better to avoid a criminal justice approach to Nazi perpetrators would probably only find support on the very extreme right in Germany.

…

… Colonialism is such an omnipresent structure that shapes the sentiments of people. One cannot but navigate and partly reproduce these sentiments. When people are in a position to reproduce colonial sentiment, when they feel compelled by forces larger than themselves and try to do the right thing nevertheless, then the kind of colonial awkwardness emerges that one can feel in Judge Schmitt’s apology. Even those who see themselves as fighters against colonial injustice will not be able to avoid feeling such colonial awkwardness. The question is: Do we perceive these affective dynamics of colonialism merely as a mechanism of subjugation, or as an unavoidable starting point for resistance against a world that produces and reproduces enormous inequality every day? …

THE BROADER RACE ISSUE

Moving beyond the specifics of the Ongwen and other Ugandan cases, it has been argued that the ICC needs to move beyond a posture of race-neutrality and confront the deeper structures involved.697 Although the following critiques preceded the warrants sought in relation to the situations in Ukraine and Palestine (Gaza), they have not lost their relevance.

RANDLE C. DEFALCO AND FRÉDÉRIC MÉGRET, THE INVISIBILITY OF RACE AT THE ICC

: LESSONS FROM THE U.S. CRIMINAL JUSTICE SYSTEM

7 LONDON REV.

Conclusion: The Unbearable ‘Whiteness’ of the ICC?

INT’L. L. (2019) 55

Accusations that the ICC is racist have created a degree of panic among certain international criminal justice advocates. The threatened and actual withdrawal of African states from the Court has been widely perceived as a catastrophe. We are concerned, by contrast, that the blanket dismissal of race-based critiques of the ICC may inhibit critical assessments of how the ICC and other international criminal justice institutions are actually operating, and what their effects are, including in terms of their roles in the global production of race and racism. …

Much like the U.S. Supreme Court in its selective blindness to certain manifestations of racism, especially structural racism, international criminal justice actors at times behave as if any acknowledgement of the multidimensional complexities of race and racism will necessarily open a Pandora’s box of insurmountable racial justice challenges that the law is ill-equipped to address. The perceived safer avenue selected by the ICC, at least thus far, has been selectively to see race in much the same way as US courts do that is, to acknowledge the role of race/racism as a cause or consequence of crime and atrocity, but not to see race when it comes to questions of structural or distributive justice that the Court itself is implicated in.

The most evident danger is that the ICC will become a forum exclusively for prosecuting atrocity crimes committed by or within predominantly Black, Arab or other racialised communities, whilst exempting itself from the need to ever see itself as part of the ongoing perpetuation of a racially fragmented and polarised world.

… [W]hat is at stake in these and other cases concerning intersections between race and criminal justice are questions of distributive justice. How are the burdens inherent in employing the technique of criminal law investigatory actions, surveillance and intrusions of privacy, arrest, detention, prosecution, social stigma, and the like, and, in the international arena, the possibility of sanctions or even foreign intervention distributed amongst the populations subject to a given criminal justice system? Who benefits from the law most in terms of being made safer (or at least being made to feel subjectively safer) and less at risk of being victimised, be it by criminals or criminal justice actors (such as police officers or prosecutors) themselves? Under the cover of working to prevent atrocities in Africa, the international community may appear to be engaged in systemic global policing of racialised Africans.

697 See also S. Manley, P. Tehrani and R. Rasiah, ‘The (Non-) Use of African Law by the International Criminal Court’, 34 Eur. J. Int’l L. (2023) 555.

… International criminal justice does not proceed from a safe place of racial innocence. It exists in a world that is structured by racial constructions, and it ignores those constructions and their relevance at its peril. … [H]ow might one go about decolonising or improving the racial politics of international criminal justice?

In recent years, the ICC has inched towards a more nuanced approach to grappling with the racialised dimensions of international criminal justice. During the mandate of former ICC Prosecutor Moreno-Ocampo, the rhetoric emanating from the OTP was especially tone deaf, characterised by bombastic all-or-nothing claims about the Court’s unimpeachable virtue. Under the guidance of Fatou Bensouda, the OTP has at least made efforts to address crimes beyond those committed by Black and/or Arab-African men, by investigating potential international crimes occurring in Afghanistan, Georgia, the Ukraine, Israel/Palestine, and Iraq, including those allegedly committed by (mostly White) US and British nationals. Such initiatives may have the potential to begin to subvert dominant racialising narratives, but, if anything, the rebalancing of prosecutorial focus beyond Africa is framed more in geographic and national terms than explicitly racial ones, once again avoiding the discomfort of acknowledging the significance race continues to exhibit globally.

The ICC’s anti-racist credentials have been challenged for a while by those who are on the receiving end of international criminal justice’s racial politics. To discuss race and to challenge its construction, is to discuss power and to challenge its production. Doing so requires that individuals and institutions acknowledge their own roles in perpetuating as enablers, bystanders, and/or uncritical conduits such power structures, along with the privileges they enjoy because of their racial associations (or various other identity categories) that others do not. It also requires an urgent emphasis on transparency and accountability in prosecutorial decisions, given the importance of discretion in allowing racial prejudice to seep into the substance of criminal justice, be it domestically or internationally. And it requires doing so in ways that do not unwittingly end up reinforcing and reifying racial categorisations in the name of anti-racism, but that constantly locate the problem of racism in the very construction of such categories.

One need look no further than the US for a cautionary example of how the dogged refusal to see certain forms of racism, especially structural ones, can deeply undermine the credibility of a criminal justice system, to the point that it becomes a source of rather than a bulwark against pervasive human rights violations and the perpetuation of racialised oppression. Dogmatic adherence to race-neutrality, in this context, risks blinding international criminal justice to its own role in historical and structural patterns of racial production and thereby further eroding its already precarious credibility.

QUESTIONS

1. What lessons might be drawn from the successful undermining of the Kenyan cases?

2. Given Joe Oloka-Onyango’s description of the politics surrounding the LRA referral, under what circumstances do you think the OTP should accept self-referrals of rebels by the governments that they are fighting?

3. What conclusions do you draw from Jonas Bens’ description of what he sees as the colonialist overtones reflected in the Ongwen case?

5. The United States and the ICC

The U.S. participated actively in drafting and shaping the Rome Statute. But it was one of seven countries that voted against its adoption in 1998. The others were China, Iraq, Israel, Libya, Qatar, and Yemen. On 31 December 2000, the last day on which it was possible to do so, President Clinton signed the treaty. But he also recommended that the Senate should not be asked for its advice and consent to ratification until fundamental concerns were satisfied. In particular, these related to the ‘unchecked’ power of the Prosecutor and the risk that U.S. soldiers and officials could be subjected to politicized prosecutions. Under Article 18 of the Vienna

Convention on the Law of Treaties, a signatory State is obliged not to ‘defeat the object and purpose of a treaty prior to its entry into force’. On 6 May 2002, some eight months after the attacks of 9/11, and as the U.S. invasion of Afghanistan was in full force, President Bush ‘unsigned’ the Rome Statute (which is not in fact possible) by informing the UN Secretary-General that ‘the United States does not intend to become a party to the treaty [as a result of which it] has no legal obligations arising from its signature ...’. Israel used the same formula to ‘unsign’ three months later.

In 2002, the American Service-Members’ Protection Act prohibited certain forms of U.S. cooperation with the ICC, required military and other aid to states parties to the Rome Statute to be cut unless those states signed an agreement not to surrender U.S. personnel to the Court, and authorized ‘all means necessary, including military force’ to be used to release U.S. persons arrested by the ICC. It was informally called ‘The Hague Invasion Act’.

The Bush administration also negotiated bilateral agreements with some 100 states, not all of which were states parties. The agreements provided that no nationals, current or former officials, or military personnel of either party may be surrendered or transferred by the other state to the ICC for any purpose. These were said to be based on Article 98(2) of the Statute,698 but this claim was widely contested. In 2002, the administration threatened not to support a peace-keeping operation unless the Security Council used its power under Article 16 to defer any investigation or prosecution for a period of 12 months in cases ‘involving current or former officials or personnel from a contributing State not a party to the Rome Statute over acts or omissions relating to a United Nations established or authorised operation’ (Res. 1422 (2002)). The suspension was renewed again in 2003, but rejected by Council members the following year.

During this period, the U.S. made exceptions when it suited it. In 2005, it permitted the Security Council to refer the Darfur case to the Court and, in 2011, the Obama administration voted to refer Libya for investigation. The U.S. also played a key role in delivering Bosco Ntaganda, of the DRC, and Dominic Ongwen, of Uganda, to the custody of the ICC.

In September 2018, President Trump told the UN General Assembly that the U.S. would ‘provide no support or recognition to the … Court. As far as America is concerned the ICC has no jurisdiction, no legitimacy, and no authority.’ In March 2019, Secretary of State Mike Pompeo announced that the U.S. would impose visa bans on ICC officials involved in a potential investigation of U.S. citizens alleged to have committed crimes in Afghanistan. The threat was subsequently extended to cover investigations affecting nationals of allied countries, including Israelis. In 2019, it was confirmed that the U.S. visa of Prosecutor Fatou Bensouda had been revoked. In May 2020, Pompeo threatened ‘consequences’ if the court pursued its inquiries in relation to Palestine.

On 11 June 2020, President Trump issued Executive Order 13928, entitled ‘Blocking Property of Certain Persons Associated with the [ICC]’:

I therefore determine that any attempt by the ICC to investigate, arrest, detain, or prosecute any United States personnel without the consent of the United States, or of personnel of countries that are United States allies and who are not parties to the Rome Statute or have not otherwise consented to ICC jurisdiction, constitutes an unusual and extraordinary threat to the national security and foreign policy of the United States, and I hereby declare a national emergency to deal with that threat. …

Relevant sanctions included asset freezes and family entry bans against some ICC officials and those who assist certain court investigations, thus deterring other nations from cooperating with the Court. President Biden revoked that Executive Order on 1 April 2021 and sanctions on ICC personnel were lifted. The following day, Secretary of State Blinken emphasized that the U.S. ‘disagree[s] strongly with the ICC’s actions relating to the Afghanistan and Palestinian situations’ and maintained its ‘longstanding objection to the Court’s efforts to assert jurisdiction over personnel of non-States Parties such as the United States and Israel.’

698 Article 98(2): ‘The Court may not proceed with a request for surrender which would require the requested State to act inconsistently with its obligations under international agreements pursuant to which the consent of a sending State is required to surrender a person of that State to the Court …’.

The U.S. could always avoid a situation in which the Court seeks to exercise jurisdiction over an American by satisfying the complementarity principle and investigating and prosecuting in its domestic courts. But:

To do so is to concede the authority of the ICC to subject US actions to its scrutiny. This the United States steadfastly refuses to do. In turning the argument into one about jurisdiction, the United States seeks to challenge not the merits of the probe but the Court’s very authority to hold non-signatories responsible … . [As a result, we] … hold ourselves out as champions of international law provided we are not subject to its norms and processes.699

Following the invasion of Ukraine, Congress approved a ‘War Crimes Accountability’ provision, which authorized the U.S. government to render assistance to the ICC ‘to assist with investigations and prosecutions of foreign nationals related to the Situation in Ukraine, including to support victims and witnesses.’700 The U.S. has subsequently provided extensive funding to a wide range of civil society and other groups, as well as to prosecutors in Ukraine, and to the ICC, to support such efforts. In contrast, the U.S. rejected the actions of the ICC in relation to Israel’s Prime Minister and Defence Minister in May 2024 as ‘outrageous’.

6. Russia and Ukraine: The ICC and the Crime of Aggression

Ukraine is not a state party to the Rome Statute but, in 2013, shortly before Russia’s invasion and annexation of Crimea, it accepted the Court's jurisdiction over alleged crimes committed on its territory (Article 12(3) of the Statute). Immediately after Russia’s 2022 invasion, the Prosecutor indicated he would seek authorization to open an investigation, but this became unnecessary when 43 states parties formally referred the situation to the Court. Four other states subsequently joined, and an investigation was opened on 2 March 2022, less than one week after the invasion.

After the Prosecutor appealed for assistance, Western States committed unprecedented levels of funding to support the OTP’s Trust Fund for Advanced Technology and Specialized Capacity and committed national personnel to assist the Office. The European Union, the United States and the United Kingdom established the Atrocity Crimes Advisory Group to assist the Office of the Prosecutor-General of Ukraine, which has opened thousands of war crimes investigations. And within a year, the ICC Prosecutor had made four visits to Ukraine.

One investigative effort funded by the U.S. led to a report by the Humanitarian Research Lab at Yale School of Public Health, entitled ‘Russia’s Systematic Program for the Re-education & Adoption of Ukraine’s Children’ (14 February 2023).

Following an application by the OTP on 22 February 2023, Pre-Trial Chamber II issued arrest warrants on 17 March 2023 for Russian President Vladimir Putin and Maria Lvova-Belova, Russia’s Commissioner for Children’s Rights. On 24 June 2024, warrants were also issued for the arrest of Sergei Shoigu and Valery Gerasimov, former Minister and First Deputy Minister of Defence of the Russian Federation. The charges relate to a large number of strikes against numerous electric power plants and sub-stations in 2022-23.701

Putin and Lvova-Belova were indicted for the war crime of unlawful deportation of population (children) and that of unlawful transfer of population (children) from occupied areas of Ukraine to the Russian Federation (under articles 8(2)(a)(vii) and 8(2)(b)(viii) of the Rome Statute). The Chamber held that ‘[t]here are reasonable grounds to believe that Mr Putin bears individual criminal responsibility for the aforementioned crimes, (i) for having committed the acts directly, jointly with others and/or through others (article 25(3)(a) of the Rome Statute), and (ii) for his failure to exercise control properly over civilian and military subordinates who

699 L. Douglas, ‘The United States and the ICC: The Court that Cannot Operate Against Us’, 19 J. Int’l. Crim. Just. (2021) 477, at 484.

700 Consolidate Appropriations Act (2023). See P. Williams et al., ‘Introducing the Symposium on U.S. Support for the ICC’s Trust Fund for Victims’, Just Security (13 February 2023).

701 Each person is charged with the war crime of directing attacks at civilian objects (article 8(2)(b)(ii) of the Rome Statute) and the war crime of causing excessive incidental harm to civilians or damage to civilian objects (article 8(2)(b)(iv) of the Rome Statute), and the crime against humanity of inhumane acts under article 7(1)(k) of the Rome Statute.

committed the acts, or allowed for their commission, and who were under his effective authority and control, pursuant to superior responsibility (article 28(b) of the Rome Statute).’

The warrants remained sealed in order to protect victims and witnesses, and to safeguard continuing investigations. But in a statement on the day the warrants were announced, the Prosecutor, Karim Khan, said:

Incidents identified by my Office include the deportation of at least hundreds of children taken from orphanages and children’s care homes. Many of these children, we allege, have since been given for adoption in the Russian Federation. The law was changed in the Russian Federation, through Presidential decrees issued by President Putin, to expedite the conferral of Russian citizenship, making it easier for them to be adopted by Russian families.

My Office alleges that these acts, amongst others, demonstrate an intention to permanently remove these children from their own country. At the time of these deportations, the Ukrainian children were protected persons under the Fourth Geneva Convention.

We also underlined in our application that most acts in this pattern of deportations were carried out in the context of the acts of aggression committed by Russian military forces against the sovereignty and territorial integrity of Ukraine which began in 2014.702

The allusion to acts of aggression was most likely intended to signal that, although the ICC lacks jurisdiction to prosecute Russian officials for the crime of aggression, relevant actions would be addressed indirectly in the war crimes prosecutions.703 President Putin’s spokesperson announced that Russia did not recognize the Court or its jurisdiction and former President, Dmitry Medvedev, called the Court a ‘legal non-entity’ and warned that any attempt to arrest Putin ‘would be a declaration of war on the Russian Federation’. The prosecution of President Putin raises many issues, but two of the most important concern the immunity enjoyed by heads of state, and the possibility of a prosecution for aggression.

Head of State Immunity

Two provisions of the Rome Statute are of particular relevance to the question of whether President Putin could be argued to enjoy immunity from either arrest or prosecution:

Article 27

Irrelevance of official capacity

1. This Statute shall apply equally to all persons without any distinction based on official capacity. In particular, official capacity as a Head of State or Government, … shall in no case exempt a person from criminal responsibility under this Statute … .

2. Immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person.

Article 98

Cooperation with respect to waiver of immunity and consent to surrender

1. The Court may not proceed with a request for surrender or assistance which would require the requested State to act inconsistently with its obligations under international law with respect to the State or diplomatic immunity of a person or property of a third State, unless the Court can first obtain the cooperation of that third State for the waiver of the immunity.

702 K. A. A. Khan, Statement on the issuance of arrest warrants against President Vladimir Putin and Ms. Maria Lvova-Belova (17 March 2023).

703 F. Mégret, ‘Why Prosecuting Aggression in Ukraine as a Crime Against Humanity Might Make Sense’, 28 J. Conflict and Security L. (2023) 467.

In the Case of the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium) [2002] ICJ 1, the International Court of Justice confirmed the absolute and functional immunity of current and former heads of state and foreign ministers, based on customary international law. The assumption is that any such arrest is incompatible with the principles of sovereign equality and non-interference. The Court also found that customary international law did not support the existence of any form of exception to the rule in relation to war crimes or crimes against humanity.

Nevertheless, this issue has been extensively litigated in relation to the outstanding arrest warrants issued by the ICC for then President Omar Al-Bashir, of Sudan, on 4 March 2009 and 12 July 2010, for war crimes, crimes against humanity and genocide. Because Sudan was not a party to the Rome Statute, the situation in Darfur had been referred to the Court by the Security Council in Resolution 1593 (2005), which was adopted under Chapter VII of the UN Charter and was thus binding on states. President Al-Bashir subsequently travelled to several states, including Jordan, Malawi, and South Africa, none of which took steps to arrest him and render him to The Hague.

On the application of the Prosecutor, the Pre-Trial Chamber held that the relevant states were required to arrest Al-Bashir. In response, Jordan appealed. The Appeals Chamber agreed with the Pre-Trial Chamber that Article 27(2) meant that states parties to the Rome Statute could not invoke the principle of immunity to justify a failure to arrest and surrender an accused to the Court. It added that Article 27(2) also reflected customary international law, and that the order of the Security Council effectively brought Sudan, a non-state party, into the overall regime requiring cooperation with the Court as if it were a state party. Thus, Al-Bashir would have no immunity, in accordance with Article 27(2). A brief excerpt follows from the Appeals Chamber’s Judgment in the Jordan Referral re Al-Bashir Appeal (ICC-02/05-01/09-397) (6 May 2019):

113. … [T]here is neither State practice nor opinio juris that would support the existence of Head of State immunity under customary international law vis-à-vis an international court. To the contrary, … such immunity has never been recognised in international law as a bar to the jurisdiction of an international court. …

114. The absence of a rule of customary international law recognising Head of State immunity vis-à-vis international courts is relevant not only to the question of whether an international court may issue a warrant for the arrest of a Head of State and conduct proceedings against him or her, but also for the horizontal relationship between States when a State is requested by an international court to arrest and surrender the Head of State of another State. … [N]o immunities under customary international law operate in such a situation to bar an international court in its exercise of its own jurisdiction.

The judgment proved to be very controversial. Consider the following responses:

Leila Nadya Sadat, ‘Why the ICC’s Judgment in the al-Bashir Case Wasn’t So Surprising’, Just Security (12 July 2019):

… [T]he decision was (1) unsurprising, (2) correctly decided, and (3) consistent with the Court’s judicial mandate. …

…

… [T]he travaux préparatoires … indicate that Article 27(1) … codifies the customary international law rule that whatever immunities an official might have before national courts cannot be pled as a bar or a defense to criminal responsibility, ratione materiae, before the ICC regarding the jus cogens crimes in the Rome Statute. Article 27(2) complements this provision by ensuring that no procedural immunities bar the ICC from exercising this jurisdiction. …

…

… [I]n taking up the question of head of State immunity under customary international law, rather than relying upon the effect of U.N. Security Council Resolution 1593 to answer the question (as it could have done), the Appeals Chamber acted consistent with its judicial mandate and properly reaffirmed the autonomous nature of international criminal law before the ICC.

… [T]he political objective of immunizing heads of state (and presumably other high government officials) cannot properly be achieved through judicial reinterpretation of the Rome Statute, but can only be undertaken by the States Parties themselves, as the African Union has attempted in the Malabo Protocol.

… The Appeals Chamber has rendered a very significant decision regarding the scope and nature of the ICC’s jurisdiction over core crimes.

Yet questions remain. First, the decision will not stop either the political or the scholarly debate over head of state immunity. Second, it does not answer the “vexing” question of when efforts to change customary international law … could reach the tipping point necessary for such a change to come into effect. … Moreover, if the core crimes and the provision of non-immunity for core crimes before international courts are jus cogens (peremptory norms), query whether [they can] be changed by contrary state practice at all? …

Dov Jacobs, ‘You have just entered Narnia: ICC Appeals Chamber adopts the worst possible solution on immunities in the Bashir case’, Spreading the Jam (6 May 2019):

… [T]his Judgment means that immunities cannot be claimed by nationals of non-State parties, even when the situation is not referred to the Court by the UNSC. …

… This is probably one of the weirdest consequences of the Judgment: because the Appeals Chamber claims the existence of a rule not just in the Rome Statute, but in customary international law, that there are no immunities before “international tribunals”, one could arguably claim that the obligation to arrest and surrender a person would rest not only on State parties but also on non-State parties, because customary law is binding on all States… this is of course a ridiculous proposition, but it shows the absurdity of the Judgment.

… [T]he AC makes no mention of the Malabo Protocol, which explicitly provides for Head of State immunity. …

Dapo Akande, ‘ICC Appeals Chamber Holds that Heads of State Have No Immunity Under Customary International Law Before International Tribunals’, EJIL:Talk! (6 May 2019):

This is stunning and appears to be deeply misguided. It is also, in my opinion, a very dangerous and unwise move for the Court to make. This reasoning appears to assert that parties to the Rome Statute, have, by creating the Court, taken away the rights of nonparty states under international law. Dangerous because this reasoning is likely to stiffen opposition to the Court by non-parties. The John Bolton’s [sic] of this world and many people far more reasonable will point to this ruling to set out precisely why it is important to oppose this court and other international criminal courts. … [T]he issue of the immunity of heads of state before international criminal courts is not what is at issue … . What [is] at issue is the immunity of heads of states from arrest by other states acting at the request of an international criminal court. That the head of state may not have immunity before the international criminal court does not, without more, say anything about whether he or she may have immunity before a foreign state.

ICC, Q&A Regarding Appeals Chamber’s 6 May 2019 Judgment in The Jordan Referral Re Al-Bashir Appeal (ICC-PIOS-Q&A-SUD-02-01/19), May 2019:

The judgment has generated animated discussion in blogosphere. what is the court’s view on that?

There is nothing new, extra-ordinary [sic] or wrong about judgments of courts of law generating discussion among those who have a view. …

In the era of social media, it is hoped that observers would properly study the Court’s judgments and decisions before rushing to comment on them. …

Lawyers engaging in public commentary should exercise particular caution and remain mindful of the cardinal principles that guide the conduct of lawyers, including that of honesty, integrity and fairness. This principle adequately covers the need to be fair when criticising courts and judges. …

The Crime of Aggression

At the Rome Conference in 1998, states were unable to agree on proposals to criminalize aggression. Definitional questions and the possible role of the Security Council were the principal stumbling blocks, in addition to fears on the part of powerful states of the ramifications of such a move.704 After extensive negotiations, a 2010 Review Conference of the ICC Statute, held in Kampala,705 agreed by consensus to several amendments, including the following:

Article 8 bis Crime of aggression

1. For the purpose of this Statute, “crime of aggression” means the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations.

2. For the purpose of paragraph 1, “act of aggression” means the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations. Any of the following acts, regardless of a declaration of war, shall, in accordance with United Nations General Assembly resolution 3314 (XXIX) of 14 December 1974, qualify as an act of aggression:

(a) The invasion or attack by the armed forces of a State of the territory of another State, or any military occupation, however temporary, resulting from such invasion or attack, or any annexation by the use of force of the territory of another State or part thereof;

(b) Bombardment …;

(c) The blockade of the ports or coasts …;

(g) The sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State of such gravity as to amount to the acts listed above, or its substantial involvement therein.

704 ‘… [T]he United States delegation expressed trepidation that the Kampala amendments might stimulate states to enact implementing statutes giving their domestic courts universal jurisdiction over the crime of aggression.’ M. Scharf, ‘Universal Jurisdiction and the Crime of Aggression’, 53 Harv. Int’l L. J. (2012) 357, at 359.

705 All relevant documents are available at https://asp.icc-cpi.int/reviewconference/crime-of-aggression.

Article 15 bis Exercise of jurisdiction over the crime of aggression (State referral, proprio motu)

… 4. The Court may … exercise jurisdiction over a crime of aggression, arising from an act of aggression committed by a State Party, unless that State Party has previously declared that it does not accept such jurisdiction by lodging a declaration with the Registrar. …

5. In respect of a State that is not a party to this Statute, the Court shall not exercise its jurisdiction over the crime of aggression when committed by that State’s nationals or on its territory.

6. Where the Prosecutor concludes that there is a reasonable basis to proceed with an investigation in respect of a crime of aggression, he or she shall first ascertain whether the Security Council has made a determination of an act of aggression committed by the State concerned. …

7. Where the Security Council has made such a determination, the Prosecutor may proceed with the investigation in respect of a crime of aggression.

8. Where no such determination is made within six months …, the Prosecutor may proceed with the investigation … provided that the Pre-Trial Division has authorized the commencement of the investigation …, and the Security Council has not decided otherwise … .

As of January 2024, 45 states have ratified the amendments relating to the crime of aggression. Sixteen of those states have implemented the relevant provisions into domestic law, and nine have expanded the scope of their universal jurisdiction laws to include aggression.706

Agreement on the definition of the crime of aggression represents major progress, but the many limits on the Court’s jurisdiction for this crime reflect the determination of major powers to greatly reduce the possibility that they might be subject to such prosecutions. As a result, the most likely scenario for activation of the provisions would involve an outlier state committing an act of aggression which the Permanent Five members of the UN Security Council agree violates Article 8 bis and leads them to make a referral to the Court. This would exacerbate the criticism that the Court is only likely to constrain the least powerful, rather than the most powerful and aggressive.

Russia, like the United States, is not a State Party and, because both states wield a veto in the Security Council, neither is ever likely to be the subject of a referral. To make up for this gap, the European Commission opened the International Centre for the Prosecution of the Crime of Aggression against Ukraine (ICPA) in July 2023 as a hub to support national investigations. Including an initial US contribution of US$1 million, the centre has a budget of over US$10 million in its first year.

In response to these developments, various commentators have raised the issue of double standards, with some pointing to the U.S. invasion of Iraq in 2003 which did not lead to any investigations or prosecutions. Others observe that the United States, which has strongly supported initiatives against Russia, is not a party to the ICC, sought to ensure that it would never be the subject of a prosecution for the crime of aggression, and has resisted providing information to the ICC in the Russia case, reportedly because ‘American military leaders … fear setting a precedent that might help pave the way for it to prosecute Americans.’707 Following the outbreak of the Gaza war in October 2023, many commentators warned of the risk of double standards if the ICC Prosecutor did not pursue both sides in that conflict for alleged crimes.

706 A. Hartig, Making Aggression a Crime Under Domestic Law: On the Legislative Implementation of Article 8bis of the ICC Statute (2023) 7-8.

707 C. Savage, ‘Pentagon Blocks Giving Hague Court Evidence of Possible Russian War Crimes’, The New York Times (8 March 2023).

Double standards have long been a seemingly unavoidable feature in the evolution of international human rights law.708 Are they any more problematic when the issue is international criminal justice? Consider the following divergent perspectives.

Beth Van Schaack, Ambassador-at-Large for Global Criminal Justice, U.S. State Department, Remarks at Nuremburg Principles Meeting, Catholic University of America (27 March 2023):

[At Nuremberg and in response to the atrocities committed in the former Yugoslavia and in Rwanda] the world came together to deliver a measure of justice in the face of atrocities. I am proud that at each of these moments, the United States supported the advancement of international criminal law and accountability. …

Again now, at this critical moment in history, I am pleased to announce that the United States supports the development of an internationalized tribunal dedicated to prosecuting the crime of aggression against Ukraine. Although a number of models have been under consideration, … we believe an internationalized court that is rooted in Ukraine’s judicial system, but that also includes international elements, will provide the clearest path to establishing a new Tribunal and maximizing our chances of achieving meaningful accountability. We envision such a court having significant international elements in the form of substantive law, personnel, information sources, and structure. It might also be located elsewhere in Europe, at least at first, to reinforce Ukraine’s desired European orientation, lend gravitas to the initiative, and enable international involvement, including through Eurojust.

…

We are committed to working with Ukraine, and peace-loving countries around the world, to stand up, staff, and resource such a tribunal in a way that will achieve comprehensive accountability for the international crimes being committed in Ukraine.

A tribunal of this type will complement the work that will be undertaken by the new International Centre for the Prosecution of the Crime of Aggression (ICPA) … [which] will coordinate the investigation of acts of aggression committed against Ukraine and build criminal dossiers against those leaders responsible for planning, preparing, initiating, or waging this war of aggression for future trials.

The United States remains unwavering in its support of the government and people of Ukraine as they defend their country and their freedom. …

Alice Speri, ‘Momentum Grows on Special Tribunal to Prosecute Putin’s Aggression in Ukraine’, The Intercept (13 February 2023):

Reed Brody, a human rights attorney specialized in mass atrocities and author of “To Catch a Dictator,” stressed that the only reason a special tribunal might be necessary for Ukraine is that countries now calling for it restricted the ICC’s jurisdiction over this crime. “People talk about a gap and a loophole. Well, how did that gap get created? It was purposeful,” he told The Intercept. “You have to balance, is it better to have some justice at the cost of consecrating double standards? I’m not sure that everyone understands how toxic this justified perception is that international justice only kicks in against, you know, enemies or outcasts or low-value countries.”

708 For a strong defence of the proposed special tribunal, see P. Labuda, ‘Countering Imperialism in International Law’, 49 Yale J. Int’l L. (2023) 000.

Asked about the extent to which concerns over double standards have hindered discussions over a special tribunal for Ukraine, Van Schaack told The Intercept “very little.” She added, “The reality is that Russian aggression is so egregious, it’s such a clear and manifest violation of the U.N. charter. …

[Andriy] Kostin, the Ukrainian [Prosecutor-General], also dismissed those concerns.

“I don’t want to spend time discussing the past. We can talk about the double, triple standards in the history of many countries, many organizations, but we have no time for this,” he told reporters during his U.S. visit. “After the war, when we win, we will have time to analyze, to discuss and to find out what has happened before.”

“We can’t leave the situation as it is,” he added. “If an aggressor starts an aggression and there is no valid, effective instrument to punish them, we need to invent this instrument together and punish the aggressor. Not only for this aggression, but to deter any other aggressor in any other place or time in the future.” …

Kai Ambos, ‘Ukraine and the Double Standards of the West’, 20 J. Int’l Crim. Just. (2022) 875, at 891:

Western claims to be defending a rules-based international order, in the context of the Ukraine situation or beyond, can only legitimately be made if the West itself complies with international law. While one may, arguably, see a difference between the Russian war of aggression and the US-led invasion of Iraq or between the Russian ius in bello violations in Ukraine and the Western ones in Iraq and Afghanistan, these differences, if accepted at all, are at best ones of degree but not of principle. The same applies to drone killings by the US outside armed conflict and extra-legal executions by the Russians in the UK or elsewhere. In all these situations international law is violated, and the one violator cannot, legitimately and credibly, lecture the other one about compliance … .

QUESTION

The Parliamentary Assembly of the Council of Europe unanimously adopted Resolution 2482 (26 January 2023) calling upon the 46 member states of the Council (Russia was expelled in 2022) to establish a special tribunal. It proposed that:

7.1 its jurisdiction would be limited to the crime of aggression committed against Ukraine and would extend ratione temporis to the aggression started by the Russian Federation in February 2014. Its jurisdiction would include the role and complicity of the leaders of Belarus in the war of aggression against Ukraine

What are the arguments for and against extending the jurisdiction of this special tribunal to cover all member states of the Council of Europe?

7. Israel and Palestine: The Gaza Crisis

The killings and kidnappings carried out in Israel by Hamas on 7 October 2023, followed by the prolonged invasion of Gaza by Israeli forces and the massive loss of life that ensued, generated renewed pressure on the Prosecutor to act. On 5 February 2021, the ICC’s Pre-Trial Chamber I had determined that the Court could, on an ongoing basis, exercise its criminal jurisdiction in the Situation in the State of Palestine, including Gaza

and the West Bank. As a result, the Court has jurisdiction over crimes committed by both nationals of States Parties and by the nationals of non-States Parties on the territory of a State Party.709

STATEMENT OF ICC PROSECUTOR KARIM A.A. KHAN KC: APPLICATIONS FOR ARREST WARRANTS IN THE SITUATION IN THE STATE OF PALESTINE, 20 MAY 2024

Yahya Sinwar, Mohammed Diab Ibrahim Al-Masri (Deif), Ismail Haniyeh

On the basis of evidence collected and examined by my Office, I have reasonable grounds to believe that Yahya SINWAR (Head of the Islamic Resistance Movement (“Hamas”) in the Gaza Strip), Mohammed Diab Ibrahim AL-MASRI, more commonly known as DEIF (Commander-in-Chief of the military wing of Hamas, known as the Al-Qassam Brigades), and Ismail HANIYEH (Head of Hamas Political Bureau) bear criminal responsibility for the following war crimes and crimes against humanity committed on the territory of Israel and the State of Palestine (in the Gaza strip) from at least 7 October 2023:

• Extermination as a crime against humanity, contrary to article 7(1)(b) of the Rome Statute;

• Murder as a crime against humanity, contrary to article 7(1)(a), and as a war crime, contrary to article 8(2)(c)(i);

• Taking hostages as a war crime, contrary to article 8(2)(c)(iii);

• Rape and other acts of sexual violence as crimes against humanity, contrary to article 7(1)(g), and also as war crimes pursuant to article 8(2)(e)(vi) in the context of captivity;

• Torture as a crime against humanity, contrary to article 7(1)(f), and also as a war crime, contrary to article 8(2)(c)(i), in the context of captivity;

• Other inhumane acts as a crime against humanity, contrary to article 7(l)(k), in the context of captivity;

• Cruel treatment as a war crime contrary to article 8(2)(c)(i), in the context of captivity; and

• Outrages upon personal dignity as a war crime, contrary to article 8(2)(c)(ii), in the context of captivity.

My Office submits that the war crimes alleged in these applications were committed in the context of an international armed conflict between Israel and Palestine, and a non-international armed conflict between Israel and Hamas running in parallel. We submit that the crimes against humanity charged were part of a widespread and systematic attack against the civilian population of Israel by Hamas and other armed groups pursuant to organisational policies. Some of these crimes, in our assessment, continue to this day.

My Office submits there are reasonable grounds to believe that SINWAR, DEIF and HANIYEH are criminally responsible for the killing of hundreds of Israeli civilians in attacks perpetrated by Hamas (in particular its military wing, the al-Qassam Brigades) and other armed groups on 7 October 2023 and the taking of at least 245 hostages. …

It is the view of my Office that these individuals planned and instigated the commission of crimes on 7 October 2023, and have through their own actions, including personal visits to hostages shortly after their kidnapping, acknowledged their responsibility for those crimes. We submit that these crimes could not have been committed without their actions. They are charged both as co-perpetrators and as superiors pursuant to Articles 25 and 28 of the Rome Statute.

My Office also submits there are reasonable grounds to believe that hostages taken from Israel have been kept in inhumane conditions, and that some have been subject to sexual violence, including rape, while being held in captivity. We have reached that conclusion based on medical records, contemporaneous video and documentary evidence, and interviews with victims and survivors. My Office also continues to investigate reports of sexual violence committed on 7 October.

709 For analyses of the jurisdictional and head of state/government immunity issues in this case, see K. Ambos et al, ‘Without Fear or Favour: For an Effective International Criminal Court’, VerfBlog, 14 June 2024, at https://verfassungsblog.de/without-fear-or-favour/; and T. Obel Hansen, ‘State Objections to the ICC Prosecutor’s Request for Arrest Warrants in the Palestine Investigation’, EJIL: Talk!, 27 May 2024.

… I again reiterate my call for the immediate release of all hostages taken from Israel and for their safe return to their families. This is a fundamental requirement of international humanitarian law.

Benjamin Netanyahu, Yoav Gallant

On the basis of evidence collected and examined by my Office, I have reasonable grounds to believe that Benjamin NETANYAHU, the Prime Minister of Israel, and Yoav GALLANT, the Minister of Defence of Israel, bear criminal responsibility for the following war crimes and crimes against humanity committed on the territory of the State of Palestine (in the Gaza strip) from at least 8 October 2023:

• Starvation of civilians as a method of warfare as a war crime contrary to article 8(2)(b)(xxv) of the Statute;

• Wilfully causing great suffering, or serious injury to body or health contrary to article 8(2)(a)(iii), or cruel treatment as a war crime contrary to article 8(2)(c)(i);

• Wilful killing contrary to article 8(2)(a)(i), or Murder as a war crime contrary to article 8(2)(c)(i);

• Intentionally directing attacks against a civilian population as a war crime contrary to articles 8(2)(b)(i), or 8(2)(e)(i);

• Extermination and/or murder contrary to articles 7(1)(b) and 7(1)(a), including in the context of deaths caused by starvation, as a crime against humanity;

• Persecution as a crime against humanity contrary to article 7(1)(h);

• Other inhumane acts as crimes against humanity contrary to article 7(1)(k).

… We submit that the crimes against humanity charged were committed as part of a widespread and systematic attack against the Palestinian civilian population pursuant to State policy. These crimes, in our assessment, continue to this day.

My Office submits that the evidence we have collected … shows that Israel has intentionally and systematically deprived the civilian population in all parts of Gaza of objects indispensable to human survival.

This occurred through the imposition of a total siege over Gaza that involved completely closing the three border crossing points, Rafah, Kerem Shalom and Erez, from 8 October 2023 for extended periods and then by arbitrarily restricting the transfer of essential supplies – including food and medicine – through the border crossings after they were reopened. The siege also included cutting off cross-border water pipelines from Israel to Gaza – Gazans’ principal source of clean water – for a prolonged period beginning 9 October 2023, and cutting off and hindering electricity supplies from at least 8 October 2023 until today. This took place alongside other attacks on civilians, including those queuing for food; obstruction of aid delivery by humanitarian agencies; and attacks on and killing of aid workers, which forced many agencies to cease or limit their operations in Gaza.

My Office submits that these acts were committed as part of a common plan to use starvation as a method of war and other acts of violence against the Gazan civilian population as a means to (i) eliminate Hamas; (ii) secure the return of the hostages which Hamas has abducted, and (iii) collectively punish the civilian population of Gaza, whom they perceived as a threat to Israel.

The effects of the use of starvation as a method of warfare, together with other attacks and collective punishment against the civilian population of Gaza are acute, visible and widely known, and have been confirmed by multiple witnesses interviewed by my Office, including local and international medical doctors. They include malnutrition, dehydration, profound suffering and an increasing number of deaths among the Palestinian population, including babies, other children, and women.

Famine is present in some areas of Gaza and is imminent in other areas. As UN Secretary-General António Guterres warned more than two months ago, “1.1 million people in Gaza are facing catastrophic hunger – the highest number of people ever recorded – anywhere, anytime” as a result of an “entirely manmade disaster”. Today, my Office seeks to charge two of those most responsible, NETANYAHU and GALLANT, both as coperpetrators and as superiors pursuant to Articles 25 and 28 of the Rome Statute.

Israel, like all States, has a right to take action to defend its population. That right, however, does not absolve Israel or any State of its obligation to comply with international humanitarian law. Notwithstanding any military goals they may have, the means Israel chose to achieve them in Gaza – namely, intentionally causing death, starvation, great suffering, and serious injury to body or health of the civilian population – are criminal.

Today we once again underline that international law and the laws of armed conflict apply to all. No foot soldier, no commander, no civilian leader – no one – can act with impunity. Nothing can justify wilfully depriving human beings, including so many women and children, the basic necessities required for life. Nothing can justify the taking of hostages or the targeting of civilians.

It is critical in this moment that my Office and all parts of the Court, including its independent judges, are permitted to conduct their work with full independence and impartiality. I insist that all attempts to impede, intimidate or improperly influence the officials of this Court must cease immediately. My Office will not hesitate to act pursuant to article 70 of the Rome Statute if such conduct continues.

Let us today be clear on one core issue: if we do not demonstrate our willingness to apply the law equally, if it is seen as being applied selectively, we will be creating the conditions for its collapse. In doing so, we will be loosening the remaining bonds that hold us together, the stabilising connections between all communities and individuals, the safety net to which all victims look in times of suffering. This is the true risk we face in this moment.

…

Responses to the Prosecutor’s statement

Immediately after this statement, it was claimed by The Guardian and two Israeli-based magazines +972 and Local Call that, for almost a decade, Israel ran a ‘secret “war” against the court. The country deployed its intelligence agencies to surveil, hack, pressure, smear and allegedly threaten senior ICC staff in an effort to derail the court’s inquiries.’ This allegedly included intercepting phone calls, messages, emails and documents involving the Prosecutor and his predecessor.710

Even before the Prosecutor made his announcement, he received a letter dated 24 April 2024 and signed by 12 US Senators warning that any warrants against Israeli officials would amount to actions that are ‘illegitimate and lack legal basis, and if carried out will result in severe sanctions against you and your institution.’ It characterized any such action as an attempt ‘to punish Israel for taking legitimate actions of self-defense against their Iranianbacked aggressors’ and argued that the issuance of warrants would call ‘into question the legitimacy of Israel’s laws, legal system, and democratic form of government.’ They also noted that it would expose the ICC’s ‘hypocrisy and double standards’ since it has never issued warrants against the leaders of Iran, Syria, or China.

Finally, neither Israel nor the United States are members of the ICC and are therefore outside of your organization’s supposed jurisdiction. If you issue a warrant for the arrest of the Israeli leadership, we will interpret this not only as a threat to Israel’s sovereignty but to the sovereignty of the United States. …

The United States will not tolerate politicized attacks by the ICC on our allies. Target Israel and we will target you. If you move forward with the measures indicated in the report, we will move to end all American support for the ICC, sanction your employees and associates, and bar you and your families from the United States. You have been warned.

On 4 June 2024, the House of Representatives by a vote of 247-155, adopted ‘H.R.8282 - Illegitimate Court Counteraction Act’ which essentially proposed the re-enactment of the Trump-era sanctions against the Court.711 The entirety of President Biden’s official response on 20 May 2024 was:

710 ‘Spying, hacking and intimidation: Israel’s nine-year “war” on the ICC exposed’, The Guardian, 28 May 2024

711 https://www.congress.gov/bill/118th-congress/house-bill/8282/text

The ICC prosecutor’s application for arrest warrants against Israeli leaders is outrageous. And let me be clear: whatever this prosecutor might imply, there is no equivalence none between Israel and Hamas. We will always stand with Israel against threats to its security.

Prime Minister Netanyahu called the announcement ‘a moral outrage of historic proportions’, given that Israel was ‘waging a just war against Hamas, a genocidal terrorist organisation that perpetrated the worst attack on the Jewish people since the Holocaust.’ He also called the Prosecutor one of the ‘great antisemites in modern times,’ whose warrants against Israeli officials amounted to ‘callously pouring gasoline on the fires of antisemitism that are raging around the world.’712

QUESTIONS

1. What are the principal legal challenges that the Prosecutor is likely to face?

2. How compelling, legally and politically, are the responses from the United States?

8. Evaluating International Criminal Justice and the ICC

Both international criminal law as a field, and the work of the ICC as an institution, have been the subject of sustained criticism from scholars and practitioners.713 Gerry Simpson suggests, in ‘International Criminal Law: The Next Hundred Years’, in Kevin Jon Heller et al. (eds.), The Oxford Handbook of International Criminal Law (2020) 841, at 849-50, that international criminal law ‘may now be the most critiqued field in human history.’ He then adds his own critique which is that what the field does ‘is to bring into being a narrow and compromised image and practice of justice, enact and reproduce a particular victim and perpetrator subjectivity, and encourage a sometimes distracting form of anti-politics.’ In the same volume, at 1, the editors identify three enduring controversies that have marred the discipline’s self-understanding:

… ICL has increasingly raised issues of hierarchy. The very nature of ICL is to create a hierarchy between the norms it backs and all other norms, the latter of which are presumed not to have an (internationally) penal character. But do norms of ICL always trump ‘ordinary’ norms of international law, as in the case of immunities? Issues of hierarchy can be found within ICL itself between its ‘core’ crimes and those presumed to lie at its periphery; in the relationship between international criminal tribunals themselves (is the ICC a primus inter pares or merely one among many international criminal jurisdictions?); and between international criminal tribunals and domestic courts (issues of complementarity and primacy). Questions of hierarchy also emerge in the practice of international criminal justice, such as in the tension between the rights of the defence and the rights of victims, or between the pursuit of justice and the pursuit of peace.

ICL also increasingly raises questions of equality that are at least partly in tension with the vertical thrust of hierarchy. How should ICL treat like cases alike? To what extent is international criminal justice the repository of ideological presuppositions that lead it to emphasize the importance of some harm or some evil at the expense of others? Certain hierarchical criteria (e.g., the relative gravity of crimes) inevitably provide the basis for claims that less grave instances of crime are being treated with too much severity and vice versa. Negotiating this distributive dimension has become the stock and trade of international criminal tribunals, which constantly have to deal with allegations that their choices reflect some a priori bias.

712 ‘What the ICC arrest warrants mean for Israel and Hamas’, BBC News, 21 May 2024.

713 See, for example, M. Bergsmo et al. (eds.), Power in International Criminal Justice (2020).

Finally, ICL raises intractable questions of authority in a context where its impact on certain constituencies is real and dramatic. Although ICL seems to presuppose consensus in its very definition, that consensus is prone to crumble as soon as one seeks to implement it. What seems agreeable from a distance often looks uglier when the hard political costs for various actors are computed from up close. Who, in such conditions, gets to establish international criminal tribunals? How are international criminal cases constructed and by whom? Who exercises prosecutorial discretion? Who speaks for international criminal justice? For victims? And why would states, victims, or even defendants decide to defer to certain institutional actors and not others?

SERGEY VASILIEV, THE CRISES AND CRITIQUES OF INTERNATIONAL CRIMINAL JUSTICE

KEVIN JON HELLER ET AL. (EDS.), THE OXFORD HANDBOOK OF INTERNATIONAL CRIMINAL LAW (2020) 626

… Every international criminal tribunal, past or present, has had to face charges of legality and fairness deficits, victor’s justice, selectivity, neo-colonialism, or other criticisms … . Such critiques … aim at exposing the project’s intimacy with hegemonic power: its provenance, embedding, and complicity in the structures of geopolitical (economic, cultural, gender-based) domination. …

… Instituted by states directly or via international organizations, [the tribunals’] authority comes with strings attached. It can only be enforced on the strength of donors’ continued operational, political, and financial support. At the same time, courts pretend that authority to be transcendent, decoupled from any one stakeholder, and universal in addressees. They purport to do justice pro omnibus, in the name of the ‘international community’, ‘humanity’, ‘civilization’ or ‘us’ the subjects they themselves constitute. Their brand of justice is erga omnes and dispensed, among others, vis-à-vis the powers-that-be on which they depend for functioning and survival.

… [The tribunals] seek to transcend politics by proffering justice as a superior alternative. But the rhetoric of legalism holds little sway. Although power camouflages itself artfully in technical juridical enterprises hinging upon expertise and rule-following, the courts are inevitably political actors that pool, process, and deploy power. … Rather than ‘speaking truth to power’, the tribunals have mostly piggybacked on the latter, with their pursuit of justice only extending as far as political expedience permits.

Selectivity and unequal enforcement regular features of the international criminal justice landscape cannot be entirely explained by mere jurisdictional and admissibility constraints, despite bona fide attempts. Those features may flow from the anticipation of backlash and internalization of outside pressures … .

Mainstream accounts paint international criminal law’s history as indivertible and irreversible progress from the heroic primitivism of Nuremberg (and the less presentable Tokyo) to the conveyor belt and technocratic punctilio of modern judicial bureaucracies to the glorious culmination in eternity, the permanent [ICC]. Such linear master-narratives, which are also eagerly sustained by the institutions and their insiders themselves, cast the journey ‘from Nuremberg to The Hague through Rome and beyond’ as an aspect and the premise of the humanity’s progress. However, the credibility of sanitized and self-serving histories has increasingly been questioned.

The turn to the critical history of the discipline brings to light blind spots, untested assumptions, and epistemological twists of the mainstream takes. …

B. Critical Turn

Increasingly, international criminal law scholarship has opened itself up to critical voices and become more introspective. Accounts highlighting aspects of courts’ underperformance have multiplied and criticisms grown ever more strident, which also had an influence on how practitioners and insiders positioned themselves in the

debate. The internal (efficacy) critiques belonging to the liberal type and its derivative a-liberal genre have focused respectively on the instances when the law or practice fell short of liberal justice principles or was constrained by their domestic articulations too unreflectively. The liberal (‘pre-fab’) critiques are essentially benevolent and often practised by the actors of the ‘mainstream’, i.e. those situated professionally and ideologically within the project.

Even more consequential has been the coming to the fore of the so-called ‘radical critiques’: a mixed bag of approaches interrogating international criminal law from the Third World Approaches to International Law (TWAIL), postcolonial, Marxist, feminist, and other angles. This genre of critiques fundamentally questions the project’s moral and epistemic credentials, its rationality, and virtuousness. Such structural critiques upset the field’s certainties, lay bare its contradictions, and arouse its anxieties. By unpacking its contentious origins, workings, and effects, those accounts expose the extent to which international criminal justice may be a part of the problem rather than solution.

…

… It is yet to be seen whether the rise of critique will bring about an epistemological renewal of the discipline.

As for the practice, the effects of the ‘critical turn’ have not been immediately felt or, at least, been very visible. As the proverbial dogs bark, the caravan of international justice goes on. The professionals in The Hague and elsewhere have been carrying on with their chores. …

III. Legitimacy Skirmishes and Mediatory Spaces

A. What Critics Want

… [R]adical critiques seek to expose [ICL’s] linkages to the dominant global (or localized) geopolitical, economic, and socio-cultural power structures, and its role in perpetuating rather than remedying injustices and inequalities of the existing order. Insofar as these accounts bring into sharper relief its perceived irrelevance (moral bankruptcy, vacuity, hypocrisy, and irrationality), they are potentially far deadlier to the legitimacy of the international criminal justice enterprise than the critiques performed within a liberal frame of reference, which presume that any defect can be repaired through a stricter adherence to law and/or expansion of its reach. …

Other than the motive of unsettling the orthodoxies of the field that animates all radical critiques, there exists no unity regarding the ultimate goals of the critical project, the admissible extent of participation and engagement, or the question of whether critics should invest in improving and reforming the enterprise that is being critiqued. For some, the goal is epistemic: production of transformative knowledge needed to rebuild ICL on new, fairer foundations. Getting closer creates a risk of losing critical detachment and compromising critical identity: a critic ‘selling out’ for relevance and becoming complicit with the object of critique. Others will pursue engagement beyond critical knowledge production and invest in a ‘constructive’ agenda to spawn reform and ‘fix’ the system. Those who still harbour faith in the emancipation and empowerment through international (criminal) law take its transformative promise seriously and are determined to hold it to its professed ideals. They are not prepared to withdraw just yet.

The political power of critiques is amplified when they resonate with an ‘anti-mainstream’ and ‘counterhegemonic’ pushback by individual states, intergovernmental organizations, and other actors defying international criminal justice in its current form. Whenever it converges with the politics of structural resistance to the project, the critique itself becomes deeply political and starts being seen as a threat, and not just rhetorically. The critics’ situational alignment with those wishing the project’s demise may be in discord with their prior involvement with the project and engender mistrust about their loyalties, agendas, and motivations. Some defenders might also still expect the critics to be less vocal in their critiques so as not to further exacerbate the position of the institutions as the real underdogs in their clashes with recalcitrant sovereign powers. The critical agenda of challenging the hegemony incarnated in international criminal justice, they will reason, should logically extend to all hegemons, including those who attack the project. The Al-Bashirs, Dutertes, Boltons, and Putins of this world, who oppress subjects on whose behalf the critics engage (developing peoples, poor classes,

people of colour, women, victims of state-sponsored violence), are now trying to beat the ICC into submission. It is those hegemons, and not the ICC, that ought to become primary targets of critique.

There is an expectation that critics would form a tactical alliance with the defence camp particularly when the project is threatened; this is not unreasonable, unless one embraces the dubious wisdom that ‘an enemy of an enemy is a friend’. Directing the sword of critique to the project’s ‘foes’ does not render the critic complicit, because a critique of those who attack it is not the same as defending it; it simply means being true to one’s own method. This is why the defenders may consider it inconsistent if the critics do not turn against the powerful detractors of the institutions, and if they do not use their celebrated critical sensibility as readily in order to expose and condemn those attackers’ self-interest, hypocrisy, and track record of oppression, exclusion, and atrocity.

While the most radical of the critical projects would be to demand the dismantling of the system of international criminal justice, few critics, if any, would contemplate this outcome or be prepared to push for it to the end. As critique is ontologically dependent some would say parasitic on its object, many ‘crits’ are in fact quite invested in the project that they need as an indispensable target, or a ‘convenient punch-bag’. … Yet, a significant number of critics stop short of rejecting the foundational ideas and rationales underlying international criminal justice. Rather, they endorse it insofar as it carries, if theoretically, a promise for at least starting to address the systemic causes for exclusion and oppression. International criminal justice continues to be seen as a potentially transformative and critical project in itself; a tool that can be wielded by the weak in order to constrain power, not only by the powerful in order to oppress the weak. …

IV. Legitimacy as Crisis Management

Is there a solution to the never-ending legitimacy crises of international criminal justice? …

[D]iscarding the project’s emancipatory promise would mean throwing the baby out with the bathwater. It is the reason why the project continues to arouse strong emotions and interest in those who want to see its promise fulfilled. Some of the ‘radical critics’ challenge it precisely because they believe it could be reinvented or refashioned as an instrument of justice and equality to the benefit of the invisible, voiceless, and downtrodden. The courts can do little to fix the global power structures of which they are a progeny. But critical sensibility could infiltrate the mainstream and permeate the intimate sphere of decision-making. If and when the project’s insiders come to be sensitized to the critical concerns to the point of making them their own, this could become the tipping point for the genuine transformation of institutional politics of international criminal law. …

To most of the radical critiques, there are no persuasive and ready-made answers (yet). The legitimacy curse of international criminal justice can hardly be undone and most of the available solutions will be partial and attitudinal. That said, the legitimacy ‘crises’ can be managed more expertly than has been the case so far. Legitimacy is a plant that needs to be watered regularly. …

PHILIP ALSTON, ‘CRIMINALIZING HUMAN RIGHTS’

15 J.HUM.RTS.PRAC.(2023) 660

[Note that this analysis is not directed specifically at the work of the ICC, but at the evolution of the broader system.]

The priorities reflected in the overarching system that includes the [IHRL, IHL and ICL regimes] are currently undergoing a gradual but highly significant transformation. The cause is a growing preoccupation with ‘atrocity crimes’ including their documentation, investigation, and prosecution, the imposition of criminal sanctions in response to an ever-increasing range of violations, and the recasting of other violations as crimes. …

The pre-occupation with atrocity crimes, and other endeavours to expand the list of such crimes, such as those around ecocide, domicide, and omnicide, and the urge to apply the label of genocide wherever possible, diminishes the attention given to significant violations that do not reach the threshold of an atrocity. It makes

it less likely that the most high-profile and well-resourced activities in the field, which are increasingly concerned with atrocity crimes, will seriously engage with the full range of violations and will make use of the spectrum of available responses. It also facilitates the neglect of structural issues such as extreme inequality, entrenched racism and sexism, and extreme poverty. And it leaves even less space for tackling the non-criminal dimensions of newer but equally pressing challenges such as climate change, and human rights threats posed by digital technologies and artificial intelligence. A closely related phenomenon is the trend towards responding to serious violations through the imposition of criminal sanctions, rather than through more nuanced and tailored measures. Criminal law, at both the international and domestic levels, is increasingly becoming the principal fulcrum around which many enforcement responses now revolve.

In the IHRL and ICL fields, some of these issues have been canvassed in instructive debates focused on the preoccupation with combating impunity.714 But in much of the literature the focus on the opposite of impunity punishment leads to an unduly narrow understanding of the consequences of what is happening. For example, some critics focus primarily on how the definition of atrocity crimes might be expanded, while others explore techniques that might be used to broaden the prosecutorial focus.715 But the spotlight remains on prosecution rather than on the wider spectrum of available tools.716 ‘Criminalization’, rather than antiimpunity, is a more encompassing and evocative way of describing a process that has been gathering speed over the past two decades. It is a term … used here in a more encompassing sense than comparable approaches such as ‘anti-impunity’,717 the proliferation and legitimation of punitive responses in human rights law,718 judicialization or juridification,719 or ‘human rights penalty’.720 The present usage draws upon those insights but seeks to emphasize the combined impact of what are often examined as distinct phenomena.

In broad terms, criminalization reflects a mentality a way of understanding and implementing the goals of a complex set of regimes. It reflects a particular philosophy of how societies can best be regulated, and it assumes that law enforcement officers, prosecutors and judges should be at the core of the overall system. It thus adopts a very narrow and specific approach to the much broader challenge of how to promote and uphold respect for human rights within societies.

More specifically, examples of the criminalization process can be found in: the preoccupation with ‘atrocity crimes’ in the work of the International Criminal Court and other tribunals, thus greatly narrowing the effective scope of ICL; the parallel narrowing of principal concerns in the IHL field away from the full range of issues and towards violations that might be prosecuted under ICL; the growing emphasis within UN commissions of inquiry (COIs) on ‘atrocity crimes’ and on gathering evidence that would satisfy the standards of criminal tribunals in order to establish individual criminal responsibility; and the high levels of funding being invested into international investigative mechanisms and atrocity crime COIs, in contrast to the patently inadequate funding of core activities such as treaty body monitoring and the accountability roles of Special Procedures mandate-holders. An important recent civil society initiative proposing the creation of a Standing Independent Investigative Mechanism, which would have a very broad mandate and a large staff, epitomizes some of these trends. While accountability is a leitmotif for the entire IHRL/IHL/ICL system, this initiative defines it very narrowly so that in order to qualify as an ‘accountability mechanism’ the relevant body must engage in evidence collection, the identification of perpetrators, or the preparation of casefiles. Another example is the overwhelming emphasis on a plethora of comparatively lavishly funded criminal investigations in Ukraine.

A similar dynamic is occurring within more specific sectors of human rights. Being seen to ‘crack down’ by prosecuting and punishing individual wrongdoers has become the preferred response in some key areas. In the field of women’s rights, for example, governments and international institutions and courts are increasingly focused on those violations that involve criminal conduct, such as rape and violence against women. And as we shall see below, in areas such as counter-terrorism and transitional justice there is a premium on criminalizing certain forms of behaviour and prosecuting violators, rather than on trying to grapple with the broader context in which solutions need to be sought. Other areas, beyond the scope of this article, that warrant future analysis

714 K. Engle,’ Anti-Impunity and the Turn to Criminal Law in Human Rights’, 100 Cornell L. Rev. (2015) 1069.

715 R. DeFalco, Invisible Atrocities: The Aesthetic Biases of International Criminal Justice (2022)

716 B. Sander, ‘The Anti-Impunity Mindset’, in M. Bergsmo et al. (eds.), Power in International Criminal Justice (2020) 325.

717 K. Engle, n. 41 above

718 M. Pinto, ‘Historical Trends of Human Rights Gone Criminal’, 42 Hum. Rts. Q. (2020) 729.

719 C. Harwood, The Roles and Functions of Atrocity-Related United Nations Commissions of Inquiry in the International Legal Order (2019)

720 S. Tapia Tapia, Feminism, Violence Against Women, and Law Reform: Decolonial Lessons from Ecuador (2022).

in this regard are labour rights and modern slavery laws, and refugee and migration law. States are rapidly expanding their criminal codes, turning to the police and security forces to uphold human rights, and concentrating their efforts on a limited number of wrongdoers.

A similar trend is discernible in terms of the human rights foreign policies of many Western governments that now engage less substantively with a broader range of issues and have instead prioritized the imposition of sanctions against individuals accused of corruption or human rights abuses. These targeted sanctions have become a favoured technique of Western governments, and have been mimicked by China and Russia. Such sanctions are, arguably, a form of criminal punishment, in which named individuals are publicly accused of crimes, and a punishment or sanction is prescribed and implemented. Similarly, very considerable resources are now being invested at the national level, especially in western Europe, in order to prosecute individuals for crimes committed in foreign jurisdictions on the basis of assertions of universal jurisdiction.

In some ways, the most paradoxical aspect of these trends is that few human rights proponents would be likely to oppose any of the developments when looked at individually on their own merits. Who would contest the propositions that accountability is crucial, impunity must be countered, and the guilty must be prosecuted and punished? In addition, the voluminous literature around international criminal justice argues that many other benefits potentially flow from processes of criminalization, such as deterrence, historical record-building, victim-participation, reparations and so on. And, from the perspective of those working in these areas, there is cause for satisfaction: considerable additional resources are being mobilized, new civil society and professional initiatives are flourishing at both the international and national levels by way of adaptation to the new environment, important new skills are being developed, a professional core of investigators, prosecutors, defence counsel, and judges has emerged, some accountability mechanisms are being better-resourced, and entirely new international mechanisms are being created.

But these advantages come at a considerable price … . …

But many other assessments have been less critical. Nancy Amoury Combs, in ‘International Criminal Justice’, in Barbora Holá et al. (eds.), The Oxford Handbook of Atrocity Crimes (2022) 617, at 626, focuses on the system’s more practical achievement in relation to impunity:

Before the 1990s, no one expected perpetrators of mass atrocities to be held criminally accountable. Today, as a statistical matter, no one should expect perpetrators of mass atrocities to be held criminally accountable, because most still are not. But the advent of the international criminal justice project transformed the world from one in which impunity following international crimes is expected to one in which impunity following international crimes is decried.

And Carsten Stahn, in ‘The ICC in Its Third Decade: Setting the Scene’, in Carsten Stahn and Rafael Braga da Silva (eds.), The International Criminal Court in Its Third Decade: Reflecting on Law and Practices (2024) 3, 10, notes the Court’s important jurisprudential contributions:

to the reading and clarification of substantive criminal law, including the understanding of the policy requirement of crimes against humanity, sexual and gender crimes against women and men, intra- party offences against children, destruction of cultural property, reproductive rights, and the re- conceptionalization of modes of liability beyond the jurisprudence of the ad hoc tribunals.

…

In some areas, such as sexual and gender- based violence, victim participation60 or reparative practices for victims and survivors, emerging ICC practices are often at the forefront or ahead of developments domestically, despite their imperfections.

Evaluating the ICC

There have been many efforts to evaluate the effectiveness of the ICC.721 Some of these have focused on the more institutional and procedural dimensions, while others have adopted a broader empirical approach. The former is illustrated by Douglas Guilfoyle, in ‘Lacking Conviction: Is the International Criminal Court Broken? An Organisational Failure Analysis’, 16 Melb. J. Int’l. L (2019) 401, at 449:

It is hard to escape the conclusion that the Court has not been well served to date by either its Prosecutors or, collectively, its judiciary. What is required is a new motivating ethic of modesty throughout the entire institution: modesty as to how much it can achieve; modesty among the senior office-holders as to the scope of their roles and the divisions of responsibility among the Court’s arms; modesty in terms of strict application of the Rome Statute and avoidance of judicial overreach. In particular, the Court must retire some of its more grandiose universalist rhetoric and set more realistic expectations in its communications with victims and other stakeholders. Universalism may have fostered its legitimacy among some audiences, but it has led to missteps, and risked alienating major constituencies, including among the ASP.

As regards the OTP, ‘it is hard to see how the Court can succeed if the Office of the Prosecutor is failing to present convincing cases’. Numerous factors appear to have led to this result: poor resource allocation (opening too many preliminary investigations or investigations in too many situations); poor strategy (turning quite late to the idea of prosecuting mid-level leaders first); poor case preparation (a lack of ‘linking’ evidence connecting high leaders with the crimes actually committed); a certain ignorance or naivete about local political conditions; as well as actual obstruction by states and a degree of judicial uncertainty as to applicable standards of evidence.

Many of these concerns were addressed by the 2020 Independent Expert Review of the ICC (p. 000 above) which confined its 348 recommendations to concrete reforms. For example, it observed (at 332) that:

The Court, and senior management specifically, need to make efforts to rebuild and strengthen internal trust and re-shape the working culture at the Court. The leadership of the Court should adopt and demonstrate a clear commitment to a multi-pronged strategy to deal with predatory behaviour in the workplace, namely bullying, harassment and especially sexual harassment.

But the Review, perhaps wisely, effectively sidestepped the question of the Court’s effectiveness:

368. Assessing the Court’s effectiveness means evaluating the impact of the Court on affected local communities and victims, as well as the Court’s deterrent effect. Different indicators and methodology are required, including qualitative indicators assessed through – for example – polls and questionnaires among local communities. For an objective assessment of the Court’s impact, such analysis would best be carried out by entities external to the Court. Civil society organisations and academics can play an essential role in this regard … .

Consider, in contrast, the following attempt to arrive at an empirically-grounded assessment.

GEOFFREY DANCY, THE HIDDEN IMPACTS OF THE ICC: AN INNOVATIVE ASSESSMENT USING GOOGLE DATA

34 LEIDEN J. INT’L L. (2021) 729

721 See S. Ford, ‘Can the International Criminal Court Succeed? An Analysis of the Empirical Evidence of Violence Prevention’, 43 Loy. L.A. Int’l & Comp. L. Rev. (2020) 101; H. Jo and B. Simmons, ‘Can the International Criminal Court Deter Atrocity?,’ 70 Int’l Org. (2016) 443; C. Hillebrecht, ‘The Deterrent Effects of the International Criminal Court: Evidence from Libya’, 42 Int’l Interactions (2016) 616; and J. Meernik, ‘The International Criminal Court and the Deterrence of Human Rights Atrocities,’ 17 Civil Wars (2015) 318.

… In evaluation science, assessing the performance of an organization requires a systematic consideration of how efficiently or effectively it operates to produce outputs that translate into intended outcomes. … Some have wondered whether it is even possible to reliably assess the ICC’s accomplishments: the Rome Statute does not clearly outline the Court’s aims or objectives; and its extrapolated goals are multi-faceted and possibly contradictory. …

… [T]his article argues that … the ICC has diffuse yet measurable impacts on social discourse, and these impacts are overlooked in most assessments. The data presented demonstrate that ICC interventions – including preliminary examinations and investigations – are associated with a significant and sustained increase in Google searches for ‘human rights’ in situation countries. … [T]here is a no more significant predictor of sudden spikes in a country’s Google searches for human rights than the onset of an OTP investigation. This mostly likely indicates that ICC involvement leads to information-seeking among the public, hinting that the Court may indeed have ‘socio-pedagogical’ effects that often remain hidden.

…

2. Two perspectives on ICC performance

2.1 The rationalist approach

The most common approach to evaluating the ICC’s performance is rationalism. … This ontology … assumes social, legal, and political behaviour can be perfected through good insight and design. Journalists informally adopt rationalism when they point to the OTP’s low conviction rate, or when they call into question the ICC’s sluggish process, great expense, or lack of ‘bang for the buck’ as evidence of inefficiency. Some ask outright whether the ICC has ‘failed’, citing the fact that atrocities still take place in states like Syria, Yemen, or Myanmar. The implication is that, if only it followed better procedures or its personnel were more competent, the Court would achieve greater success in deterring violence in the world.

Rationalism also undergirds more formal ‘effectiveness criticism’ directed at the ICC. This involves identifying the Court’s mandated aims – like providing victim satisfaction or deterring future atrocities – and positing that certain operational shortcomings prevent those aims from being reached. One common underlying assumption is that the ICC has carefully calculating audiences that are keeping a close watch. When those audiences observe missteps, they receive signals to update their attitudes and behaviour in relation to the Court. For instance, consider the often disparaged slow pace of investigations and proceedings, which results not only from the institutional structure of the Court but also prosecutorial strategy. Concern over the ICC’s expeditiousness, carried over from criticism of the ad hoc tribunals of the 1990s, is rooted in the presumption that slow justice leads to waning hopes among victims. If victims are not satisfied, the thinking goes, the Court will lose legitimacy. Similarly, drawing on criminology, scholars argue that selective prosecutions and infrequent convictions will do little to change the cost–benefit analysis of would-be atrocity criminals. In other words, insufficient trial outputs will fail to achieve deterrence. Why? Because atrocity criminals are plodding, careful actors who follow the Court’s record, and update their prior beliefs with new information. But each of these effectiveness critiques is theoretical: we possess very little hard evidence that victims are disappointed with the ICC, or that violent state leaders discount the Court for being toothless.

Rationalist performance evaluations are not just employed for criticism. The ICC itself has adopted a highly rationalist, some say technocratic, approach to monitoring its own operations. The Second Court’s Report on Development of Performance Indicators outlines a set of four goals – fair and expeditious trials, effective leadership and management, adequate security, and victim access – and presents a bevy of indicators for auditing the Court’s pursuit of those goals. …

2.2 The constructivist approach

An alternative approach to assessing ICC performance is available. Drawing on international relations theory … [c]onstructivism is concerned with the ways that ideas and norms permeate interactions, thus conditioning ‘the nature of agents and subjects’. Philosophically, this diverges from rationalism in many ways, most notably by assuming that humans are social beings whose preferences are shaped by a dense network of rules that constitute society. In short, people are not individual cost-benefit calculators; they are complex rule navigators.

Constructivist performance evaluation has been proposed by a handful of management scholars, but not widely adopted in the study of law and society. This alternative essentially involves considering how an organization may itself alter social relations. There are two main reasons that reviewers might consider this departure from a rational systems approach. First, the ICC is not easily reduced to a corporate forum for creating predictable legal ‘outputs’ that produce desired ‘outcomes’. The trajectory of Court practice does not follow a clearly designed logic model because some of the Court’s outputs and outcomes are unpredictable. For example, the purpose of the OTP’s preliminary examinations was given relatively scant attention in the Rome Statute, but over time these examinations have evolved, playing an increasingly important role in monitoring states’ compliance with international criminal law. Furthermore, research demonstrates that advancing to the investigation stage has unintended positive impacts on situation countries, encouraging legal mobilization and increasing low-level prosecutions of state agents. …

A second reason to consider a constructivist approach is that an overly instrumentalized view of the Court’s work ignores that international legal institutions and global society are co-constitutive. … The need to merely belong, or be recognized as belonging, to that community, might alter behaviour. Understanding this means moving beyond a narrow, managerial understanding of organizational outputs and outcomes. … For example, empirical research demonstrates that Rome Statute ratifications alone are associated with declines in indiscriminate violence committed by government and rebel forces, even while civil war is ongoing. States party to the Rome Statute are home to almost no massacres, and very few new civil wars. That political violence in increasingly concentrated in non-party states suggests the Rome regime is influential, though it is hard to attribute this pattern to individual choices made by rational leaders in direct response to Court actions. It could be that the role of the ICC regime is not just causal, but constitutive.48 It not only produces independent outputs that translate into outcomes; it embodies and defines rules of global society. … …

7. Conclusion

… [First, in] countries where the ICC has intervened, interest in human rights spiked, and sustained. The new and higher level of Google searches for human rights is quite enduring, lasting for years. … It would be a mistake to write off Google search trends as meaningless. The data suggest that the ICC drives sustained curiosity about human rights, which may signal a broader ability to contribute to long- term social and ideational change. …

Second, an excessively rationalist account [of] ICC outputs and outcomes will probably miss some broader constitutive social effects attributable to the Court. Evaluating performance solely based on its use of resources, the perceived fairness and expeditiousness of trial proceedings, or the extent to which victims participate is too managerial an exercise. … It is quite possible that most of the ICC’s impacts are subtle and indirect. Uncovering these impacts means being open to a holistic understanding of international criminal law and engaging in the persistent and creative search for evidence of law’s social effects among audiences in various contexts.

Third …, evaluators need not choose between … [r]ationalism and constructivism … . [Both] can complement one another. … [C]onsidering the multi-dimensional nature of ICC performance would at the very least push us beyond either blind apology or obsession with crisis, toward a pragmatic grounding in the real opportunities the ICC offers.

Regional Approaches

In looking to the future evolution of this field Leila N. Sadat, in ‘The International Criminal Law of the Future’, in David L. Sloss (ed.), Is the International Legal Order Unraveling? (2022) 397, at 423, draws attention to two important elements. The first is the need for a system of global criminal justice that focuses on the broad range of crimes beyond those dealt with in the Rome Statute. To the extent that such prosecutions are currently pursued unilaterally, she cautions that:

Efforts by the United States and other countries to extend their national jurisdictions extraterritorially to serve as the investigators and police of the world are likely to succeed

only sporadically and are likely to increase interstate tensions. … For that reason, it may be useful to create mechanisms enabling some transnational crimes to become the subject of international adjudication so that their enforcement becomes more effective and multilateral. Indeed, an effort is now ongoing to establish a new global corruption court. She also draws attention to the important potential role that might be played by regional criminal courts:

… [A]t its best, a global system of criminal justice would have the ICC as its centerpiece, with many satellite courts at the international level and national jurisdictions filling in where regional and international courts are not engaged, are overwhelmed, or cannot exercise jurisdiction. Although the ICC will not directly exercise its jurisdiction in many cases, given its status as a court of last resort, its activities will be central to the system as a whole. Ideally, such a system will be human rights friendly, incorporating protections for the accused found in international human rights law, and state actors engaging in national prosecutions will be encouraged to use best practices in their national systems. It will also respond to modern calls for a more restorative approach to criminal justice. The real danger is not that ICL will disappear. Rather, the risk is that attacks on its international and multilateral manifestations, such as the ICC, will cause it to become increasingly illiberal and unilateral, increasing friction between states and endangering international peace and security.

On 27 June 2014, the African Union adopted a treaty designed to set up such a regional system. But, as of 2024, the Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights, known as the Malabo Protocol, has been signed by 15 of the 55 African Union member states and ratified by none of them. Eki Yemisi Omorogbe, in ‘The Crisis of International Criminal Law in Africa: A Regional Regime in Response?’, 66 Neth. Int’l L. Rev (2019) 287 describes the background to this initiative:

Between 2009 and 2011 African states reacted negatively to a German court’s warrant for the arrest of a Rwandan who at the time had become an aide to Rwandan President Paul Kagame, to the ICC’s arrest warrant for Libyan President Gaddafi, and the Kenyan prosecutions in the ICC.

The AU’s response to the ICC proceedings [involving Kenya] was swift. In October 2013, the AU Assembly in extraordinary session expressed its reservation about the effect of these ICC proceedings on the sovereignty, stability, peace and security of that state and the wider region.33 It called for the suspension of ICC proceedings against Ruto and Kenyatta until they leave office.34 It also widened its policy of non-cooperation … .

Significantly, the AU Assembly also requested the speeding up of the process of including international crimes within the mandate of the African Court on Human and Peoples’ Rights [leading to the adoption of the Malabo Protocol.] …

Certain provisions of the Protocol reflect the AU-ICC conflict. The key provision is Article 46A bis of the Protocol which provides:

No charges shall be commenced or continued before the Court against any serving Head of State or government, or anybody acting or entitled to act in such capacity, or other senior state officials based on their functions, during their tenure of office.

In parallel, the obligation of states to cooperate with the ICL is limited in Article 46L(g) to ‘Any other assistance not prohibited by the law of the requested State’ in respect of the arrest, surrender and transfer of accused persons to the Court.39 These provisions when read alongside the AU’s policy of non-cooperation with the ICC in the arrest of any African Head of State shows that the objective is to remove incumbent leaders from the overview of all international courts and tribunals.

Finally, no reference is made [to] the Rome Statute or the ICC in the Protocol. That silence is intentional. … [M]aking reference to the ICC would have required engagement with it.

Omorogbe notes that Article 28B of the Protocol incorporates the important jurisprudence of the ICTR in Prosecutor v. Akayesu, by including within the definition of genocide: ‘(f) Acts of rape or any other form of sexual violence when these are committed with the intent to destroy a national, ethnic or religious group.’ He also notes that, unlike the Rome Statute, the Protocol (Article 46C) provides jurisdiction over legal persons, thus making it possible to prosecute multinational corporations for crimes against humanity.

But Amnesty International, in Malabo Protocol: Legal and Institutional Implications of the Merged and Expanded African Court - Snapshots (2 May 2017) has expressed:

… concerns about the implications of vague/broadly defined crimes in the ACJHR Statute, and in particular, with respect to the crimes of terrorism and unconstitutional change of government, which may therefore be used to clamp down on the legitimate exercise of freedom of expression, association, assembly and human rights. The broad formulation of the crimes as currently drafted, raise serious concerns as to compliance with the principle of legality established under international law.

Consider the following provisions:

Article 28G Terrorism

For the purposes of this Statute, ‘terrorism’ means any of the following acts:

A. Any act which is a violation of the criminal laws of a State Party, the laws of the African Union or a regional economic community recognized by the African Union, or by international law, and which may endanger the life, physical integrity or freedom of, or cause serious injury or death to, any person, any number or group of persons or causes or may cause damage to public or private property, natural resources, environmental or cultural heritage and is calculated or intended to:

1. intimidate, put in fear, force, coerce or induce any government, body, institution, the general public or any segment thereof, to do or abstain from doing any act, or to adopt or abandon a particular standpoint, or to act according to certain principles; or

2. disrupt any public service, the delivery of any essential service to the public or to create a public emergency; or

3. create general insurrection in a State.

Article 28E

The Crime of Unconstitutional Change of Government

1. For the purposes of this Statute, ‘unconstitutional change of government’ means committing or ordering to be committed the following acts, with the aim of illegally accessing or maintaining power:

a) A putsch or coup d’état against a democratically elected government;

b) An intervention by mercenaries to replace a democratically elected government;

c) Any replacement of a democratically elected government by the use of armed dissidents or rebels or through political assassination;

d) Any refusal by an incumbent government to relinquish power to the winning party or candidate after free, fair and regular elections;

e) Any amendment or revision of the Constitution or legal instruments, which is an infringement on the principles of democratic change of government or is inconsistent with the Constitution;

f) Any substantial modification to the electoral laws in the last six (6) months before the elections without the consent of the majority of the political actors.

Funding

One element in evaluating the effectiveness of the various criminal courts and tribunals is their cost. By way of comparison, in 2022, the UN regular budget appropriated $134 million for all of the activities undertaken by the Office of the High Commissioner for Human Rights (UN Doc. A/77/6 (Sect. 24) (2022) 60). That amount was supplemented by $227.7 million in extra-budgetary contributions, mostly from states.

For 2024, the ICC’s budget was €197 million or around US$217 million. This was a 16 percent increase from 2023. The increase reflected inflation as well as the Court’s expanding workload.722 By comparison the total cost of the two ad hoc tribunals (the ICTY and the ICTR) was $3.8 billion. Unlike the ICC, which is paid for only by States Parties, that budget was covered by regular UN budget assessments applicable to all member states. That meant that the United States paid 22 percent of the total. In Cambodia, the ECCC cost $337 million over 16 years. Of the total, $45 million was from Cambodia with the rest paid for by 39 foreign countries.

Consider the following justification of such expenses by Milena Sterio and Michael Scharf, p. 000 above, at 357:

… [W]hile international justice has not come cheaply, these costs are a fraction of the costs of a peacekeeping mission or military operation. At the Pentagon, the cost for one B-2 stealth bomber is $3 billion, the cost for a Virginia-class attack submarine is $2.7 billion, and one Arleigh Burke-class guided missile destroyer costs American taxpayers $1.7 billion. In 2017, the United States was spending $3.1 billion per month to wage war in Afghanistan. It is noteworthy that in the two and a half decades since the creation of the ad hoc tribunals, neither war nor genocide has returned to the former Yugoslavia or Rwanda.

QUESTIONS

1. Are many of the critiques of ICL also applicable to some domestic legal systems or do international criminal tribunals have some unique characteristics?

2. Which critiques of ICL seem most compelling and what alternative approaches would you consider in response? Do adjustments need to be made, or is a wholesale reconceptualization necessary to satisfy the strongest critiques?

3. Should radical critics of ICL pay any heed to the possible (probable?) misuse of their work by those opposing the ICL agenda in order to protect the impunity of perpetrators?

4. Randle C. DeFalco, in ‘(Re)Conceptualizing Atrocity Crimes as Public Health Catastrophes’, in Jocelyn Getgen Kestenbaum et al. (eds.), Public Health, Mental Health, and Mass Atrocity Prevention (2021) 17, calls for ‘a conceptual shift away from a myopic focus on spectacular acts of violence within international criminal justice and toward the recognition of a broader array of manifestations of power over the health and lives of human populations.’ In what ways do you think the growing emphasis on ‘atrocity crimes’, promoted by the limited scope of international criminal law, might have influenced the evolution of the overall human rights regime?

722 S. Ford, ‘Funding the ICC for Its Third Decade’, in C. Stahn (ed.), The International Criminal Court in Its Third Decade (2024) 368.

5. What role does, and should, politics play in international criminal justice. Consider the following observation by Nancy Amoury Combs, in ‘International Criminal Justice’, in Barbora Holá et al. (eds.), The Oxford Handbook of Atrocity Crimes (2022) 617, at 638:

What is innovative and inspiring about the modern-day international criminal justice project is not its imposition of accountability per se, but its effort to impose that accountability universally and pursuant to neutral principles. … [But this rhetoric] obscures the reality that its ideals are unachievable at present. Prosecutors pretend that political considerations play no role in atrocity selection, for instance, when we all know that the practical ability to carry out a prosecution must be an important factor in the decision to initiate the prosecution to begin with. International criminal law must pretend to be apolitical, yet its ultimate success is largely predicated on its ability to navigate around the numerous land mines that politics places in its path.