International Criminal Law Review最新文献

{"title":"Preventing the Forcibly Displaced from Returning as Persecution and Inhumane Act under International Criminal Law and the Rome Statute","authors":"Elena Katselli Proukaki","doi":"10.1163/15718123-bja10118","DOIUrl":"https://doi.org/10.1163/15718123-bja10118","url":null,"abstract":"\u0000Preventing the forcibly displaced from returning to the territory from which they were unlawfully expelled has not received adequate attention under international criminal law. This article addresses this gap by focusing on denial of return as a crime against humanity. It evaluates international criminal jurisprudence including the proceedings concerning the Rohingya and evolving human rights standards to show that prevention from returning is a serious and continuing denial of fundamental human rights which inflicts great suffering. As such, it may qualify as persecution and/or an inhumane act under the Rome Statute. The ramifications of this on the temporal and territorial jurisdiction of the International Criminal Court and the principle of legality are important especially in situations of protracted displacement. The article demonstrates that although criminalisation of denial of return is not a panacea, it is instrumental in tackling forced displacement which affects millions across the world.","PeriodicalId":55966,"journal":{"name":"International Criminal Law Review","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2021-11-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42743728","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Technology as a Key Tool for the Prosecution of International Crimes: Lessons from Uganda","authors":"T. Kirabira","doi":"10.1163/15718123-bja10116","DOIUrl":"https://doi.org/10.1163/15718123-bja10116","url":null,"abstract":"\u0000This article uses the context of Uganda to examine the role of technology in the prosecution of international crimes. It uses the International Criminal Court (icc)complementarity framework to analyse two cases — Dominic Ongwen and Thomas Kwoyelo, exploring a question — whether the use of technology enhances the icc’s positive complementarity approach? The article draws substantially from the review of empirical literature, qualitative interviews and the author’s work experiences at the two sites of justice - Uganda and The Hague. The article reveals a practical overlap between the two sites of justice in the use of digital evidence and witness protection. It is argued that use of technology enhances the criminal trial procedures, victims’ rights and the legitimacy of the courts. It is equally argued that the use of technology has the potential to enhance the icc’s complementarity approach. The article contributes to current debates about the role of technology in international criminal justice.","PeriodicalId":55966,"journal":{"name":"International Criminal Law Review","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2021-11-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48289020","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"An Age-Old Question: Optical (A)llusions, (In)Decency, and (In)Justice in the Trial of Japanese War Criminals","authors":"J. Sedgwick","doi":"10.1163/15718123-bja10094","DOIUrl":"https://doi.org/10.1163/15718123-bja10094","url":null,"abstract":"Timing complicates all dimensions of post conflict redress. Moving too fast suggests prejudice. Going too slow delays accountability and closure. This paper challenges the temporal logic of international justice. The prosecution of aged defendants created aesthetical dilemmas for war crimes operations in post-World War ii Asia. The unsettling optical allusions of frail perpetrators in court — shadows of their former selves — left many observers conflicted: it looked indecent, it felt unjust and underwhelming. The unseemly punishment of weak defendants undercut prosecution attempts to brand perpetrators as monsters. Disappointed reporters and trial authorities fixated on the shabby dress, waning physique, and benign senescence of once-sinister villains. Few questioned the accused’s guilt. Many felt unnerved by the optics. Ultimately, this paper shows how the staging and performance of justice impacts a court’s effectiveness. Unrelenting accountability, bringing all war criminals to justice, feels right. Yet, the aesthetic complications of prosecuting aged accused may not be worth it.","PeriodicalId":55966,"journal":{"name":"International Criminal Law Review","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2021-11-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42440019","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Potential and the Challenges of Digital Evidence in International Criminal Proceedings","authors":"Kristina Hellwig","doi":"10.1163/15718123-bja10110","DOIUrl":"https://doi.org/10.1163/15718123-bja10110","url":null,"abstract":"\u0000Technological achievements such as mobile phones, computers and the World Wide Web have become an integral part of our lives, and societies and are indispensable to many. These new technologies, and information derived from them, have a great potential to support the fact-finding process in the fields of international criminal law and human rights. Therefore, digital information such as satellite imagery, communication data, and user generated content, for example, videos and photography are becoming essential tools for international criminal investigation. This article examines the characteristics of digital and technology derived evidence and the implications these characteristics have on their use in international criminal procedure. It will illustrate the value and the challenges regarding the inclusion of digital evi dence in international criminal procedure.","PeriodicalId":55966,"journal":{"name":"International Criminal Law Review","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2021-11-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49290542","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"What We Talk About When We Talk About Early Release in International Criminal Law: The Sui Generis Nature of the Reduction of Sentence Under the Rome Statute","authors":"Cristina Fernández-Pacheco Estrada","doi":"10.1163/15718123-bja10113","DOIUrl":"https://doi.org/10.1163/15718123-bja10113","url":null,"abstract":"\u0000Early release has been regularly granted by the ad hoc tribunals for over 20 years. However, it could be argued that some issues still remain contentious. In fact, in May 2020, the Practice Direction ruling early release in the Mechanism of the International Criminal Tribunals was amended. This was intended to clarify key matters, such as the time needed to be served before early release, the possibility of imposing conditions upon those released, and the unappealable character of the resulting decision. At a glance, it could be argued that the International Criminal Court is better equipped to confront the many challenges posed by early release. This is owing to its detailed regulation, which may consequently lead to a more reasoned and solid case law. After comparatively examining ten features key to the application of early release, however, this paper argues that the ultimate problem lies within the nature generally conferred to early release in the Rome Statute.","PeriodicalId":55966,"journal":{"name":"International Criminal Law Review","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2021-11-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43654054","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Contents","authors":"","doi":"10.1163/15718123-21060001","DOIUrl":"https://doi.org/10.1163/15718123-21060001","url":null,"abstract":"","PeriodicalId":55966,"journal":{"name":"International Criminal Law Review","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2021-11-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45434477","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Who Are Protected by the Fundamental Guarantees under International Humanitarian Law? Part 1: Breaking with the Status Requirement in Light of the icc Case Law","authors":"Raphaël van Steenberghe","doi":"10.1163/15718123-bja10111","DOIUrl":"https://doi.org/10.1163/15718123-bja10111","url":null,"abstract":"\u0000International humanitarian law provides for fundamental guarantees, the content of which is similar irrespective of the nature of the armed conflict, and which are applicable to individuals even if they do not fall into the categories of specifically protected persons under the 1949 Geneva Conventions. Those guarantees, all of which derive from the general requirement of human treatment, include prohibitions of specific types of conduct against persons, such as murder, cruel treatment, torture and sexual violence, or against property, such as pillaging. However, it is traditionally held that entitlement to those guarantees depends upon two requirements: the ‘status requirement’, which basically means that the concerned persons must not or must no longer take a direct part in hostilities, and the ‘control requirement’, which basically means that the concerned persons or properties must be under the control of a party to the armed conflict. This study argues in favour of breaking with these two requirements, in light of the existing ICC case law. The study is divided into two parts, with each part devoted to one requirement and made the object of a specific paper. The two papers follow the same structure. They start with general observations on the requirement concerned, examine the relevant ICC case law and put forward several arguments in favour of an extensive approach to the personal scope of the fundamental guarantees. The first paper, which is published in this issue, deals with the status requirement. It especially delves into the ICC decisions in the Ntaganda case with respect to the issue of protection against intra-party violence. It advocates for the applicability of the fundamental guarantees in such a context by rejecting the requirement of a legal status, on the basis of several arguments. Those arguments rely on IHL provisions protecting specific persons, on the potential for humanizing IHL on the matter and on the approach making the status requirement relevant only when the fundamental guarantees apply in the conduct of hostilities. The second paper, which will be published in a coming issue, deals with the control requirement. It examines several ICC cases in detail, including the Katanga and Ntaganda cases, in relation to the issue of the applicability of the fundamental guarantees in the conduct of hostilities. It is argued that the entitlement to those guarantees is not dependent upon any general control requirement, and that, as a result, some of these guarantees (mainly those whose application or constitutive elements do not imply any physical control over the concerned persons or properties) may apply in the conduct of hostilities.","PeriodicalId":55966,"journal":{"name":"International Criminal Law Review","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2021-11-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49434380","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Right Without Remedy? The Development of the Presumption of Innocence at the International Criminal Court","authors":"M. Coleman","doi":"10.1163/15718123-bja10107","DOIUrl":"https://doi.org/10.1163/15718123-bja10107","url":null,"abstract":"\u0000This article examines the presumption of innocence’s development at the International Criminal Court. While the presumption of innocence was hardly debated at the Rome Conference, several issues surrounding the presumption have been open to wide interpretation by the Court. This article argues that since the Rome Statute’s entry into force, the presumption of innocence goes beyond the text of Article 66 and has become a robust right that has application both inside and outside of the courtroom and has effect during the Situation, Pre-Trial and Trial phases. Despite these developments, what happens when the right is violated remains an open question. The paper will conclude that while the presumption of innocence may be better defined and more protective than it was 20 years ago, what happens in the case of a violation continues to be an area for further development.","PeriodicalId":55966,"journal":{"name":"International Criminal Law Review","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2021-11-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42541015","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Of Old Men, Country Clubs, and Atrocities: The Visualities and Externalities of Detaining Elderly Human Rights Violators in Chile","authors":"C. Davidson","doi":"10.1163/15718123-bja10093","DOIUrl":"https://doi.org/10.1163/15718123-bja10093","url":null,"abstract":"\u0000This article explores a pair of powerful but competing symbols in the Chilean human transitional justice process: ‘pobres viejitos’ (poor little old men) and country club prisons. The symbol of the ‘pobres viejitos’ is used very effectively by conservative elements of Chilean society to argue the futility or even inhumanity of punishing perpetrators of human right violations so long after the commission of their crimes. In turn, to victims and more liberal segments of society, the country club or ‘five star’ prison for human rights violators stands as a symbol of impunity and the failure of the Chilean state to do justice for the crimes of the dictatorship. This article examines the power of these symbols in undermining support for transitional justice efforts, as well as the externalities of the debate. The fate of the ‘pobres viejitos’ and whether to release the from even their relatively comfortable places of confinement has bled into debates on penal reform for other elderly prisoners. This mostly negative externality suggests the need for international and regional courts (or countries not in the throes of transitional justice processes, particularly delayed ones) to lead the way on the articulation of human rights norms related to the trial and punishment of elderly prisoners.","PeriodicalId":55966,"journal":{"name":"International Criminal Law Review","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2021-11-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43703937","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Prosecuting Asymmetrically: On Some ‘Preconditions’ of Criminal Liability of Aged Defendants for Atrocities","authors":"Konstantinos Tsinas","doi":"10.1163/15718123-bja10088","DOIUrl":"https://doi.org/10.1163/15718123-bja10088","url":null,"abstract":"\u0000Belated punishment ends up to be nothing more than a ‘mere show’, Beccaria argues in his Dei Delitti e Delle Pene (1764). The motto remains current with regard to trials of aged defendants for past international atrocities. In such cases, the question arises if the preconditions of criminal liability (Duff, 2001) for aged defendants are properly satisfied. Are aged defendants fully answerable for their atrocities? Based on the idea that a criminal trial is really -except for its nature as a quest of truth and justice- a communicative event between parts, the author argues that there is an important ‘communicative asymmetry’ to be observed in criminal trials against aged defendants for international atrocities, illustrates its dimensions and features and suggests some ways of dealing with it, in order that the trial preserves its pure function as an instance of criminal justice.","PeriodicalId":55966,"journal":{"name":"International Criminal Law Review","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2021-11-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45051856","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}