Tag: international criminal law

Domestic Prosecution of War Crimes in Australia and Its Implications Abroad – Molly Thomas

Editors Analysis, Articles

On 20 March 2023, the Australian Federal Police (‘AFP’) and Office of the Special Investigator (‘OSI’) issued a press release announcing that a New South Wales man had been arrest and charged with one count of War Crime—Murder under subsection 268.70(1) of the Criminal Code Act 1995 (Cth). It is alleged that the man, later identified as former SAS trooper Oliver Schulz, shot and murdered an Afghan man in a wheat field in Uruzgan Province while deployed to Afghanistan with the Australian Defence Force (‘ADF’). This incident was the subject of an ABC Four Corners program in March 2020.

Division 268 of the Commonwealth Criminal Code was inserted to create offences of ‘international concern’ and to incorporate the complementarity principles of the Rome Statute, per section 268.1(1) and (2).  Section 268.70 falls within Subdivision F of this Division, which specifically focuses on war crimes which are serious violations of Common Article 3 of the Geneva Conventions committed in non-international armed conflicts, of which murder is one.

This is the first war crime charge of murder to be laid against a serving or former Australian Defence Force member under Australian law. This article examines the background of this prosecution and its implications for Australia, its allies and the road ahead for domestic prosecution of war crimes.

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Atrocity crimes in Ukraine: What can Australia do?

Editors Articles

Australia has rightly spoken out in condemnation of the allegations of war crimes and crimes against humanity in Ukraine, and has taken some tangible steps in support of Ukraine and its population including the supply of arms, and the possibility of humanitarian visas for Ukrainian refugees. There are, however, further steps Australia can take to provide a robust and meaningful response to these crimes: legislate the crime of aggression; assist in the creation of briefs of evidence; and, if appropriate, prosecute atrocity crimes domestically relying on universal jurisdiction.

Atrocity crimes in Ukraine: What can Australia do?

The massacre of civilians in the town of Bucha, the rape and torture of civilians, and targeting of hospitals, civilian refuges and humanitarian corridors are just some of the reports emerging from Ukraine towns, allegedly committed by Russian military forces. These are allegations of atrocity crimes, most notably war crimes, as well as the crime of aggression in relation to the unlawful nature of the invasion itself. Although neither Russia nor Ukraine are a State Party to the International Criminal Court (ICC), the ICC has jurisdiction to prosecute these crimes, with the exception of the crime of aggression.   

Ukraine voluntarily accepted ICC jurisdiction  for offences committed on its territory since April 2014, when Russia annexed Crimea. However, the absence of Russia’s consent to jurisdiction, and its ability to block the United Nations (UN) Security Council mechanism to refer a prosecution for aggression creates an accountability gap in prosecuting Russia’s Head of State, Vladimir Putin. While there have been calls to create a special tribunal to close this accountability gap, technical and political challenges may prevent this proposal from progressing. 

The international community continues to condemn the actions in Ukraine; many have called for Putin to be held accountable. The ICC and Ukraine have commenced investigations; and investigative teams have been sent separately by the UN Human Rights Council, and the Organisation for Security in Europe (of which Russia is a member) utilising the ironically titled ‘Moscow Mechanism’.   

Given these actions, what part can Australia play in ensuring these egregious acts do not go unpunished? 

First, it can take steps to legislate the crime of aggression; second, it can collate a criminal prosecution brief to either aid ICC or Ukrainian prosecutions – or even provide it to Russia to give the State an opportunity to prosecute their soldiers; and finally, in the absence of other prosecutions, seek to prosecute the crimes in Australia under the principle of universal jurisdiction.

Legislating the crime of aggression

The crime of aggression constitutes the fourth international ‘core’ crime, alongside genocide, war crimes, and crimes against humanity, over which the ICC has jurisdiction.  Under Article 8 bis (1) Rome Statute, the crime of aggression entails ‘the planning, preparation, initiation or execution…of an act of aggression which by its character, gravity and scale, constitutes a manifest violation of the Charter of the UN’, by a person in a position of power. It criminalises the acquisition of sovereign territory by force. With the activation of the ICC’s jurisdiction over aggression on 14 December 2017, the ICC can hold leaders individually criminally responsible for waging aggressive war for the first time since the Nuremburg and Tokyo trials. 

While near-universal consensus exists that Putin’s ‘special military operation’ constitutes an act of aggression, the ICC is unable to exercise jurisdiction over this crime in this instance. However, third States could also ensure accountability. State parties to the Rome Statute are obligated to criminalise the core crimes in their national legislation. To date, only 43 States – of which Australia is not one – have ratified the 2010 Amendments on the crime of aggression to the Rome Statute, also called the Kampala Amendments, which defined the crime of aggression. Even less have criminalised the crime domestically.  

There are no readily identifiable public statements that offer explanation as to why Australia has not taken steps to ratify the Kampala Amendments, nor to implement the offence of aggression domestically. This position is surely worthy of review in light of recent world events? To criminalise aggression domestically, Australia ought to ratify the Kampala Amendments and enact criminal legislation providing for the punishment of perpetrators of the crime.

Prosecution of atrocity crimes in Australia using universal jurisdiction

States including Sweden have indicated that they are commencing domestic criminal investigations into the alleged atrocity crimes being committed by Russian troops in Ukraine. The doctrine of universal jurisdiction enables such domestic criminal investigations, where States have enacted relevant domestic legislation. Division 268 of the Commonwealth Criminal Code ratifies most of the offences found under the Rome Statute and enables prosecution in Australia under the concept of ‘extended territorial jurisdiction’ (section 268.11). This technically allows for the prosecution of persons with no jurisdictional nexus to Australia, meaning the offending could be outside Australia, committed by a non-Australian citizen, and not impact an Australian citizen or property.   

Practically speaking, however, the prosecution will not occur unless Australia has physical custody of the alleged perpetrator, as Australia does not allow for in absentia trials (in recognition of the right to a fair trial under the International Covenant on Civil and Political Rights). Access to witnesses and evidence is also likely an obstacle to commencing criminal proceedings domestically. Absent political will, it is also unlikely that the Commonwealth Attorney-General will consent to the prosecutions, as is required for any Division 268 prosecutions to commence.  

Australia has not yet successfully prosecuted anyone under Division 268. It is also unlikely that  rank-and-file Russian soldiers would be prosecuted for atrocity crimes in Australian courts for numerous practical and pragmatic reasons, noting also that Australia may only conduct Division 268 prosecutions where no other genuine prosecutions are conducted elsewhere. Given the current work load of our Courts, such actions would unlikely proceed on an economy of effort basis as well.

Collection of evidence

However, investigations at the domestic level will not – and should not be – the principle avenue for achieving justice.  Several States including Australia are resourcing investigations on the ground conducted by the Ukrainian prosecutor’s office, the OSCE, the UNHCR and the ICC. The provision of investigators as well as funding is a meaningful way to enhance the ability to ensure accountability for these crimes, but it is by no means a swift or comprehensive form of justice. Access to and preservation of evidence, access to the alleged perpetrators (and access to information to aid in identifying perpetrators) is extremely difficult in armed conflict, and even more so when the State responsible for offences is unlikely to cooperate with investigations. Reports of extra-judicial killings by Russian commanders of their subordinates alleged to have committed war crimes in Ukraine, and the consistent denials by Russia of reports of criminal conduct by their forces, suggest that there will be little to no cooperation by Russia in the pursuit of accountability. 

In addition to existing international criminal law mechanisms, the crowd-sourcing of investigations by States supporting the preparation of criminal prosecution briefs and, as a fall-back option, domestic prosecutions should remain available.  If the ICC fails to act, or the special tribunal never materialises, then Australia could take action.

Should Australia prosecute Putin using universal jurisdiction 

Given the ICC has only recently opened its prosecution against the Sudanese militia leader, Ali Muhammed Ali Abd-Al-Rahman in respect of war crimes and crimes against humanity allegedly committed in 2003 and 2004, the wheel to bring individuals to account under the international criminal mechanism turns slowly. The lead time to bring a prosecution for atrocity crimes is long, and there are additional jurisdictional challenges with prosecuting a sitting head of State. Jurisdictional challenges exist in prosecuting sitting Heads of State (as Putin is), who enjoy immunity ratione personae for all acts performed, while in office, which remains in effect before foreign States’ domestic courts – even for atrocity crimes – where the official’s State has not waived it. 

However, despite these challenges, Australia can, and should, show leadership. By at least legislating for the offence, should Putin ever visit Australia – or a State with which Australia holds a relevant extradition treaty – the ability exists to prosecute him under the doctrine of universal jurisdiction (as codified in Division 268 of the Criminal Code). This action sends a clear message that the act of aggression and its consequences cannot be forgotten for future political convenience; while not compromising potential action by any special international tribunal established to handle the situation.  

Criticisms or weariness of the use of universal jurisdiction align to its challenges, and to claims of judicial vigilantism mired in political, rather than altruistic aims.  While it is true that international criminal law is infected by issues related to political will and convenience, in this case, such action could be used complimentary to the sanctions and other diplomatic pressures undertaken by Australia already. The deterrent effect of such action is more powerful than mere words.

Concluding observations

While there are steps that can and should be taken by Australia in response to Russia’s unlawful invasion of Ukraine, reinforcing international criminal justice and accountability measures is critical to preventing impunity and discouraging further atrocity crimes being committed in this conflict, and in future conflicts. Australia can demonstrate its commitment to this cause by ratifying the Kampala Amendments, domestically legislating the crime of aggression and creating a prosecution brief in respect of Putin’s flagrant disregard for the international rules-based order.  

Yvonne Breitwieser-Faria is a PhD Candidate at the T.C. Beirne School of Law in affiliation with the Asia-Pacific Centre for the Responsibility to Protect, The University of Queensland. Her research focuses on atrocity law. 

Dr Lauren Sanders is a senior research fellow at the University of Queensland’s Law and the Future of War at the University of Queensland, whose doctoral thesis was on enforcement mechanisms relevant to universal jurisdiction.

Can international criminal law protect the environment? – Stephanie Erian

Editors Analysis, Articles

In June 2021, a panel of legal experts convened by the Stop Ecocide Foundation (called the Independent Expert Panel for the Legal Definition of Ecocide (Panel)) unveiled a proposal to make mass environmental destruction an international crime (Proposal). The Proposal involves adding new Article 8 ter to the Rome Statute of the International Criminal Court (ICC), which would place ecocide alongside existing international crimes of genocide, crimes against humanity, war crimes, and the crime of aggression. Although encouraging to see environmental protection as the focus of international legal efforts, the Proposal raises serious questions for international criminal law practitioners. Some of these are considered below. 

So, what’s the proposed definition?

The Panel defines ecocide 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’ (Proposal, p 5). 

A number of aspects of the draft definition are drawn from existing international law agreements, making its construction feel more familiar. For example, the Proposal reflects the structure of Article 7 of the Rome Statute relating to crimes against humanity: the first paragraph sets out the crime, and the second paragraph defines the crime’s core elements. In terms of language, the words ‘widespread’, ‘long-term’ and ‘severe’ replicate those in Article 8(2)(b)(iv) of the Rome Statute concerning damage to the environment during international armed conflict. This article prohibits intentionally conducting an attack in the knowledge that it will cause ‘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’. New Article 8 ter would essentially extend this war crime to times of peace, and cover environmental damage that is both cumulative and alternative (‘severe and either widespread or long-term’).

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The War on Human Rights: Countering Duterte’s dismissal of the ICC Probe

Editors Articles

Aisiri Raj, Rahul Rajasekar and Lekha Suki make a case for extending International Criminal Responsibility to Filipino President Duterte and the law enforcement officials for their failure to guarantee the right to life and protect their civilians from the unjustified use of force by the police officials. 

In June 2021, the Prosecutor of the International Criminal Court (ICC) requested judicial authorisation to investigate extrajudicial killings in the Philippines, bringing Philippine President Duterte’s ‘War on Drugs’ campaign back into the spotlight. Since 2016, over 7,000 such killings have been reported, and only one instance resulted in the conviction of police officials for the use of excessive force. However, President Duterte is largely dismissive of the probe, asserting that the War on Drugs is a sovereign exercise in the interest of national security and justifying extrajudicial killings as the law enforcement personnel’s right to self-defence. This article analyses the failure of the State to guarantee the right to life and to protect its civilians from the unjustified use of force by police officials in the Philippines. 

The Justification of Self-Defence under International Human Rights Law 

Under the assertion of self-defence, the wide-ranging powers granted to police forces in the Philippines do not follow the requisite due process obligations to conduct investigations and collect evidence but instead use lethal and unjustified force on ‘mere suspicion’ that individuals might be in possession of illicit drugs. According to the Office of the High Commissioner of Human Rights (OHCHR) Principles on the Use of Force and Firearms by Law Enforcement, force can only be used as a last resort when other means are ineffective. The absence of verbal warnings and directions by police to surrender violates the binding principles of necessity and proportionality under the general principles governing the use of force. This principle has been recognised by the Supreme Court of Philippines, which held that the presence of an ‘imminent threat’ is the required threshold for exercising proportionate self-defence in the course of public duty.  

The Philippines, being a State Party to the Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR), must guarantee the right to life to all its civilians. The justification of self-defence is not absolute in International Human Rights Law (IHRL), where the right to life is non-derogable, and its deprivation cannot be arbitrary. The blanket justification of self-defence by the law enforcement was similarly invoked in Suarez De Guerrero v Colombia (Communication No 45/1979) and was rejected by the United Nations (UN) Human Rights Committee on the grounds that disproportionate killing of suspects is an arbitrary deprivation of the right to life under Article 6(1) of the ICCPR.  

Further, the acts of the police officials violate the drug suspect’s right to fair trial under Article 10 of the UDHR by denying them the opportunity to be heard and the right to legal counsel. The arbitrary manner in which the killings were carried out violates the requirement of presumption of innocence under Article 14(2) of the ICCPR, whereby a suspect’s guilt must be determined by affording them a fair and impartial trial. This arguably represents a complete failure of the constitutional machinery as well as the judiciary in the Philippines in ensuring access to justice. The Philippines has violated its obligations under IHRL since the acts of law enforcement do not constitute a justified use of self-defence which, as explained below, is a relevant finding for the ICC’s jurisdiction to prosecute. 

Criminal Responsibility for Crimes against Humanity under International Criminal Law  

According to the Special Prosecutor’s Office of the ICC, the actions taken pursuant to the “War on Drugs” policy may constitute crimes against humanity under Article 7 of the Rome Statute. The authors are of the opinion that the War on Drugs satisfies the elements of Article 7 for the following reasons: 

  1. First, it is an organised state-sanctioned policy with large-scale, systematic violence committed against the civilian population. 
  1. Secondly, President Duterte’s explicit orders require law enforcement to arbitrarily kill all drug suspects, indicating the presence of mens rea to carry out such acts. 
  1. Lastly, mens rea is further evident in the actions of the State by granting complete impunity from prosecution to the police responsible for such mass atrocities and perversely rewarding them for extrajudicial killings. 

The large-scale and widespread nature of this deprivation of life constitutes a systematic ‘murder’ of civilians under International Criminal Law (ICL), specifically under Article 7(1)(a) of the Rome Statute. The proximity between IHRL and ICL implies that serious violations of human rights are regarded as crimes against humanity. For instance, the International Criminal Tribunal for the former Yugoslavia in Prosecutor v Karadzić (Case no IT-95-5/18-T, 6 April 2009)  noted the confluence between the deprivation of human rights and crimes against humanity in instances of torture and rape, as an attack on human dignity. This can be reasonably applied to the present case as murder in the form of extrajudicial killings are IHRL and ICL violations worthy of prosecution by the ICC.  

President Duterte’s claims that the ICC has no jurisdiction over the Philippines due to its withdrawal from the ICC in 2019. However, international criminal responsibility would be extended to President Duterte and the law enforcement officials responsible for mass atrocities committed, as a termination of consent to the Rome Statute does not constitute immunity from prosecution since the ICC retains jurisdiction over crimes committed during the time the Philippines was a State Party from 2011 to 2019.

Failure of R2P Obligations 

The refusal of the Filipino Government to acknowledge the human rights violations, investigate and order State agents to stand down, is reflective of the failure of its responsibility to protect (R2P) obligations to its civilians. This norm places an obligation on States to guarantee to their civilian population the basic human rights of safety and security to prevent mass atrocities in their territory.  

Pillar I of R2P emphasises the sovereign responsibility to monitor and prevent any atrocity before it occurs through effective cognisance, sanction, monitoring and fair trial.  In casu, the existing state structures such as the National Prosecution Service under the Department of Justice required to initiate prosecutions on human rights violations, the National Ombudsman, which is constitutionally empowered to undertake investigations in cases of unlawful and illegal acts of the police, and the National Human Rights Council, have failed to prevent mass killings and protect the rights of the civilians. The welfare approach of R2P places a responsibility on the Philippines to protect and guarantee the welfare of its population. However, Duterte’s government deems countering narcotics through extrajudicial killings as the most suitable way to handle the drug problem.  

The international community has remained silent over the UN Human Rights Council’s failure to investigate the extrajudicial killings in the country. As Gallagher et al note, Association of South East Asian Nations (ASEAN) States, China and Russia value diplomatic relations and the principle of non-interference, and have maintained that the War on Drugs is a domestic concern, legitimising the stance of the Filipino Government. Therefore, the initiation of the ICC Probe is a means of upholding Pillar II of the R2P, the responsibility of the international community to assist States in protecting their populations, as it attempts to launch an international investigation to punish President Duterte and the law enforcement officials, who are accountable for the mass killing of their population. Therefore, it is necessary for the rest of the international community to take collective action and support the work of the UNHRC and the ICC to ensure justice for the victims of state violence in the Philippines.  

Aisiri Raj, Rahul Rajasekar & Lekha Suki are fourth year Law (Honours) Students at School of Law, Christ University, Bengaluru, with academic and professional experience in International Human Rights Law, Constitutional Law and Public Policy in India.

Could Australia’s Environment Minister face prosecution at The Hague for “ecocide” due to climate change inaction? – Joshua Clarke

Editors Analysis, Articles

The recent report of the UN’s Intergovernmental Panel on Climate Change is the latest in a series of events building pressure on Australia’s climate policy sclerosis. When an expert legal panel published a definition of “ecocide” in June, it grabbed fewer headlines. But this international law milestone has potential implications for leaders globally. This article examines the proposed international crime of ecocide and considers what it means for political leaders whose countries are hindering global climate action.

A series of inconvenient events

It has been quite a month for headlines with temperature-related metaphors, and the news they were delivering was grim. On 9 August, the Intergovernmental Panel on Climate Change (IPCC) released part one of its sixth assessment report. In it, the UN body found that global warming of 1.5°C above pre-industrial levels could be upon us by 2030. With this prediction, the ambitions of the Paris Climate Agreement hang in the balance. The IPCC’s message is unequivocal: climate change is happening now and it is only through immediate, steep and sustained emissions reductions that catastrophe might be avoided. UN Secretary-General Antonio Guterres called the report a “code red for humanity”. 

Efforts to combat climate change will now need to redouble. But in this global campaign, few would regard Australia as a reliable ally. A report published in July on 193 countries’ progress towards the UN Sustainable Development Goals awarded Australia a score of only 10 out of 100 for climate action: the lowest awarded for any country. Australia’s high levels of exported greenhouse gas emissions and fossil fuel use per capita, plus its failure to make progress on implementing an effective price on emissions, earned the country its rock bottom ranking. It has not helped Australia’s standing that the country still conspicuously lacks a national commitment to carbon neutrality by 2050. And with the IPCC’s latest findings that urgent action in this decade is imperative, Australia’s unwillingness to update its 2030 emissions reduction targets since they were set in 2015 reads as defiance.

In commentary on Australia’s “climate wars”, the IPCC report now dominates: will it deal a decisive blow to climate policy stagnation as COP26 — the next UN Climate Change Conference — approaches in November? In the shadow of the IPCC report, it is easy to overlook other pertinent developments of the past few months. In July, Australia’s Great Barrier Reef narrowly avoided being classified by UNESCO as a world heritage site “in danger” primarily due to the threat posed by climate change. About the same time, Australia’s Federal Court declared that the Environment Minister Susan Ley, when determining whether to approve a coal mine project, owed a duty of care to avoid causing harm to children in Australia arising from emissions of carbon dioxide into the Earth’s atmosphere. The minister has appealed, but the Federal Government has since been hit with further lawsuits challenging its decisions for failing to take climate change into account, including in relation to a forest logging agreement and a gas exploration project. 

Amidst this flurry of activity, one milestone reached in international law went relatively unnoticed. But perhaps in time, this significant development may come to focus minds in Canberra and around the world on the necessity for climate action. 

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Event Re-Cap: Reflections on the International Criminal Justice System: In Conversation with David Re – Crystal Ji

Editors Analysis, Articles

The NSW Society of Labor Lawyers and the Muslim Legal Network NSW recently hosted an in-conversation event with David Re, who was the Presiding Judge of the Trial Chamber of the Special Tribunal for Lebanon (STL) from 2013 to 2021. In this role, Mr Re presided over the first international terrorism trial, which arose from the 2005 terrorist attack targeting former Lebanese Prime Minister Rafik Hariri. Three accused were acquitted, with one accused, Salim Ayyash, being convicted for his role in the attack. The judgment of the Chamber is available in full online and has previously been analysed on the ILA Reporter. Prior to being a judge of the STL (2010-2021), Mr Re was a judge of the Court of Bosnia and Herzegovina in Sarajevo (2008-2010) and a prosecutor at the International Criminal Tribunal for the Former Yugoslavia (2002-2008).

Mr Re traversed a number of topics during the course of the discussion, ranging from discussing the hybrid nature of the STL, to reflecting on the future of international criminal courts and international criminal law. Points of interest are highlighted below.

The hybrid model of the STL

The hybrid model of the STL was discussed. The STL was set up pursuant to a 2006 agreement between Lebanon and the UN and Security Council Resolution 1757, with Lebanon to pay 49% of the budget. The decisions of the STL are binding on all UN member states, given the STL’s establishment pursuant to a UN Security Council Resolution. It is a unique standalone institution with headquarters in the Hague, established there pursuant to an agreement with the Dutch government, and also an office in Lebanon, pursuant to an agreement with the Lebanese government. The STL features both Lebanese judges and international judges of different nationalities, and applies the substantive law of Lebanon while also applying international criminal procedure laws. The latter is itself a hybrid of the procedures used in civil and common law systems.

There are distinct advantages to the hybrid model of the STL, which allows international personnel to work with national personnel. These include the fact that international personnel bring money and resources, expertise, standards, witness protection, forensic and investigatory techniques to transitional justice countries that are often small, impoverished and affected by corruption. In the case of the STL, the Lebanese judges who were appointed could see what the procedures and standards are in the international legal system, and the international judges could safeguard the maintenance of independence and impartiality of the STL’s judicial decision-making.

However, the limitations of the model were also discussed. Although the judges are able to maintain independence and impartiality, there are forces that may have shaped the prosecutorial effort at the investigative stages of a trial. Choices as to which aspects and persons to investigate over others are entirely outside the judges’ purview, as are decisions as to who to name in the indictment. Questions about why the indictment for the trial Mr Re presided over did not extend wider or higher up the chain of command of Hezbollah remain unanswered. 

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Enhancing State Capacity: An Analysis of the Draft Articles on Prevention and Punishment of Crimes Against Humanity 2019 and the Attendant Consequence For State Parties – Adeyinka Adegbite

Editors Analysis, Articles

To highlight the opportunity which the Draft Articles on Prevention and Punishment of Crimes Against Humanity present for progressive development of international criminal law, Adeyinka Adegbite outlines how the Draft Articles contribute to enhanced inter-State cooperation and capacity of national legal to prevent, prosecute and punish crimes against humanity.

Background to the Draft Articles

The motivation for developing the Draft Articles on Prevention and Punishment of Crimes against Humanity (‘Draft Articles on Crimes against Humanity’) by the International Law Commission (ILC), the expert body of the United Nations (UN) with responsibility for developing and codifying international law, was an awareness of the imperative to create a single international legal instrument which provided for the incorporation of the definition of crimes against humanity in national laws; imposed obligations on States to prevent the commission of crimes against humanity; and, conferred national jurisdiction to prosecute perpetrators of crimes against humanity. The first report of the ILC Special Rapporteur for the crimes against humanity stream of work in 2015 initiated what would later become the Draft Articles on Crimes against Humanity.

The comments of the government of States, including Australia, and other UN special agencies and international non-governmental organisations enriched the body of texts aimed at developing the law on this particular category of international crimes. It is important to note that the Charters, Statutes and instruments setting up International Criminal Tribunals, namely the International Military Tribunals for Nuremberg and Tokyo and the International Criminal Tribunal for Former Yugoslavia, among others, included a description of the crimes regarded as crimes against humanity. These provisions were further developed following the entry into force in 2002 of the Rome Statute of the International Criminal Court (‘Rome Statute’).

Article 7(1), (2) and (3) of the Rome Statute set out crimes against humanity as one of the categories of international crimes within the jurisdiction of the International Criminal Court (ICC). The Rome Statute appears to be richer in the provision concerning the category of crimes against humanity when compared with the earlier instruments of International Military Tribunals (IMT), as the definition of these crimes under the Rome Statute are broader in scope. 

Further, the principle of positive complementarity, a novel provision of the Rome Statute in Article 17, lends a two-pronged approach to the prosecution and punishment of crimes against humanity. The principle was a departure from the approach the IMT instruments, which gave priority to the jurisdiction of the IMTs over national jurisdiction. In further emphasising the importance of national jurisdiction, especially where the legal and judicial structures are available and the State is willing and able to undertake such prosecution, the ICC may offer assistance to the prosecuting State to the extent that the perpetrators of these crimes are prosecuted. Whilst a State shall cooperate with the ICC under Article 93(1), Article 93(10) imposes a discretionary duty on the ICC to cooperate with a prosecuting State, stating that the ICC may, upon request, cooperate and provide assistance to a State Party. Nonetheless, the recognition given to national jurisdiction is indeed very admirable. 

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A Review of the Malabo Protocol on the Statute of the African Court of Justice and Human Rights – Part II: Corporate Complicity in International Crimes – Jessie Chella

Editors Analysis, Articles

This is the second article in a two-part series examining the Malabo Protocol on the Statute of the African Court of Justice and Human Rights (ACJHR). When it comes into effect, the Malabo Protocol will empower the ACJHR to exercise jurisdiction over international crimes as well as introduce a regulatory scheme for corporate criminal liability. The first part of this series outlined the scope of the Court’s new jurisdiction with respect to international and transboundary offences. This second part explores the new corporate criminal liability provisions in more detail.

Traditionally, only natural persons could be prosecuted for the commission of international crimes in either domestic or international jurisdictions. Corporate criminal liability has been recognised in most domestic jurisdictions, but not under international criminal law. The ACJHR is set to change this with the introduction of Malabo Protocol provisions regarding the international criminal jurisdiction of the court (Article 28A), and a regulatory scheme for corporate criminal liability (Article 46C).

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A long road to justice for victims of sexual and gender-based violence: the case of Dominic Ongwen – Lucy Geddes

Editors Analysis, Articles

Trial Chamber IX of the International Criminal Court recently handed down judgment in the case of Dominic Ongwen. Ongwen was convicted of 61 counts of war crimes and crimes against humanity and the Court paved new ground in its jurisprudence of sexual and gender-based violence (SGBV) crimes. This is an area where the Court has historically had a very poor record. This piece discusses these significant jurisprudential developments and then considers what is next in store for SGBV victims in this case.

On 4 February 2020, Trial Chamber IX of the International Criminal Court (ICC) handed down judgment in the case of former child soldier turned Lord’s Resistance Army (LRA) commander, Dominic Ongwen. While the Court’s sentence is still to come, Ongwen was convicted of 61 individual charges of war crimes and crimes against humanity for atrocities perpetrated in Uganda between 2002 and 2005 – the highest number of convictions for any accused before the Court to date. Already heralded as a landmark judgment, the ICC paved new ground in its jurisprudence on sexual and gender-based (SGBV) crimes. Notably, there were multiple sexual and gender-based violence (SGBV) convictions, including: sexual slavery as crime against humanity and war crime, rape as crime against humanity and war crime, forced pregnancy as crime against humanity and war crime, and forced marriage as crime against humanity. 

It is the first time the Court has held that forced marriage constitutes a crime against humanity, as a distinct crime, under the umbrella of ‘other inhumane acts’. This development is important, as there has been conjecture in recent years as to whether forced marriage should be subsumed within sexual slavery or whether it should be considered a crime against humanity in its own right. In a crucial step forward in SGBV international criminal justice jurisprudence, the Ongwen judgment rebuffed the Defence’s assertion that “forced marriage is not a crime under the Rome Statute”. Instead, the Court emphasised the unique harm of forced marriage, asserting that it thus constitutes a separate crime, holding that: “the conduct underlying forced marriage – as well as the impact it has on victims – are not fully captured by other crimes against humanity”. In particular, the Court distinguished the harm of forced marriage from the crimes of rape and sexual slavery. The Court held that these crimes all exist independently of each other, noting that “forced marriage implies the imposition of this conjugal association and does not necessarily require the exercise of ownership over a person” (essential for a crime of enslavement) and the crime of rape “does not penalise the imposition of the ‘marital status’ on the victim”.

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A Review of the Malabo Protocol on the Statute of the African Court of Justice and Human Rights – Part I: Jurisdiction over International Crimes – Jessie Chella

Editors Analysis, Articles 1 Comment

This two-part series examines the Malabo Protocol on the Statute of the African Court of Justice and Human Rights (ACJHR). When it comes into effect, the Malabo Protocol will empower the ACJHR to exercise jurisdiction over international crimes as well as introduce a regulatory scheme for corporate criminal liability. This is a milestone for the regional court and the African continent. Additionally, this is a significant innovation for international criminal law, which traditionally has not recognised the criminal liability of corporate entities.

Historical Development of the ACJHR 

As early as 1988, the Organisation for African Unity, later known as the African Union (AU), adopted the Protocol to the African Charter on Human and Peoples’ Rights, which laid the foundation for the establishment of the African Court on Human and Peoples’ Rights (ACHPR) in 2004. Currently, 30 of the 55 AU members have ratified the ACHPR Protocol. In 2000, the AU also created the African Court of Justice (ACJ). Later, in 2005, the AU established the African Court of Justice and Human Rights (ACJHR) by merging the ACHPR and the ACJ. 

Then in June 2014, the AU met in Malabo, Equatorial Guinea, at the twenty-third Ordinary Session of the Assembly. There it adopted the Protocol on Amendments to the Protocol on the Statute to the African Court of Justice and Human Rights, commonly known as the Malabo Protocol. The Malabo Protocol empowers the ACJHR with jurisdiction over international crimes as well as introducing a regulatory scheme for corporate criminal liability. 

The international criminal law section of the ACJHR is off to a slow, rocky start. According to Article 11 of the Malabo Protocol, the Protocol shall enter into force 30 days after 15 members deposit instruments of ratification with the court. Of the 55 AU members, only 15 have signed the Protocol; none have ratified it. 

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