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Article

The International Law Commission’s Draft Articles on the Prevention and Punishment of Crimes Against Humanity

Incitement/Conspiracy as Missing Modes of Liability

Journal African Journal of International Criminal Justice, Issue 2 2020
Keywords modes of liability, International Law Commission, crimes against humanity, incitement, conspiracy
Authors Joseph Rikhof
AbstractAuthor's information

    The International Law Commission’s Draft Articles on the Prevention and Punishment of Crimes Against Humanity does not include the inchoate crimes of conspiracy or incitement. However, this choice has generated a great deal of academic commentary. This article critically assesses the choice of the drafters to exclude conspiracy and incitement liability, arguing that their decision was flawed. It examines the comments made by academics, as well as participants in the work of the Commission on this draft convention. Additionally, it scrutinizes the methodology employed by the Commission in reaching this conclusion. Finally, it presents a conceptual analysis of the desirability for the inclusion of these two inchoate crimes, arguing that their inclusion would assist in meeting the policy of preventing crimes against humanity.


Joseph Rikhof
Adjunct Professor, University of Ottawa.
Article

The ILC Draft Articles on Crimes Against Humanity

An African Perspective

Journal African Journal of International Criminal Justice, Issue 2 2020
Keywords Africa, norm creation, crimes against humanity, colonial crimes, official immunity
Authors Alhagi B.M. Marong
AbstractAuthor's information

    Africa’s contribution towards the development of the International Law Commission (ILC) Draft Articles should not be assessed exclusively on the basis of the limited engagement of African States or individuals in the discursive processes within the ILC, but from a historical perspective. When analysed from that perspective, it becomes clear that Africa has had a long connection to atrocity crimes due to the mass victimization of its civilian populations during the colonial and postcolonial periods and apartheid in South Africa. Following independence in the 1960s, African States played a leading role in the elaboration of legal regimes to deal with international crimes such as apartheid, or in the development of accountability mechanisms to respond to such crimes. Although some of these efforts proved unsuccessful in the end, the normative consensus that was generated went a long way in laying the foundations for the Rome Statute of the International Criminal Court, which, in turn, influenced the conceptual framework of the ILC Draft Articles. This article proposes that given this historical nexus, the substantive provisions and international cooperation framework provided for in the future crimes against humanity convention, Africa has more reasons to support than to oppose it when negotiations begin at the United Nations General Assembly or an international diplomatic conference.


Alhagi B.M. Marong
Senior Legal Officer, United Nations Assistance Mission in Afghanistan (UNAMA).
Article

Crimes Against Humanity in the “Western European & Other” Group of States

A Continuing Tradition

Journal African Journal of International Criminal Justice, Issue 2 2020
Keywords crimes against humanity, Western Europe and Other Group of States, WEOG, Draft Articles on the Prevention and Punishment of Crimes Against Humanity
Authors Beth Van Schaack
AbstractAuthor's information

    The Western Europe and Other Group of states have a long history with crimes against humanity. They were pivotal in the juridical creation of this concept, in launching prosecutions in both international and national courts, and in formulating the modern definition of the crime. However, some members have expressed concerns around the International Law Commissions Draft Articles on the Prevention and Punishment of Crimes Against Humanity. This article provides a summary of the history of crimes against humanity in the Western Europe and Other Group of states, as well as the current status of crimes against humanity in their legal systems. It argues that although these states have successfully incorporated crimes against humanity into their legal frameworks, it would be beneficial for them to embrace the proposed Crimes Against Humanity Convention.


Beth Van Schaack
Leah Kaplan Visiting Professor of Human Rights, Stanford Law School.
Article

Defining Crimes Against Humanity

Practicality and Value Balancing

Journal African Journal of International Criminal Justice, Issue 2 2020
Keywords crimes against humanity, Rome Statute, Draft Articles, state sovereignty
Authors Margaret M. deGuzman
AbstractAuthor's information

    Since crimes against humanity were first defined in the Charters of the International Military Tribunals at Nuremberg and for the Far East, various international, hybrid and national institutions have adopted definitions that differ in important respects. The International Law Commission’s draft articles are the latest definition, using language that is almost identical to the definition in the Rome Statute of the International Criminal Court. This article explains that decision, as well as the few divergences between the draft articles and the Statute. Defining crimes against humanity involves balancing the value of respecting state sovereignty against that of protecting human rights, and the values of consistency and clarity against those of breadth and flexibility. It argues that in adopting the draft articles, states will affirm the balance among these values that was struck in Rome, but that both definitions contain sufficient flexibility to permit new balances to be found as global values evolve.


Margaret M. deGuzman
Professor Margaret M. deGuzman is James E. Beasley Professor of Law and Co-Director of the Institute for International Law and Public Policy at Temple University’s Beasley School of Law.
Article

Relating to ‘The Other’

The ILC Draft Convention on Crimes Against Humanity and the Mutual Legal Assistance Initiative

Journal African Journal of International Criminal Justice, Issue 2 2020
Keywords International Law Commission (ILC), Draft Convention on Crimes Against Humanity, Mutual Legal Assistance (MLA) initiative, crimes against humanity, international criminal law
Authors Larissa van den Herik
AbstractAuthor's information

    The International Law Commission (ILC) Draft Convention on Crimes Against Humanity and the Mutual Legal Assistance (MLA) Initiative have largely run in tandem throughout their development. Both projects are motivated by similar gap-filling desires and both projects aim to expand the international criminal justice toolkit; however, these similarities have led to questions if both projects are necessary. This article addresses that question, looking at how different actors have answered this question during the respective processes of maturation of both projects and where both projects stand today. It argues that, while there is significant overlap between the projects, both instruments have merits which the other is lacking, and the optimal solution would be to bring both projects to fruition.


Larissa van den Herik
Prof. Dr. L.J. van den Herik is professor of public international law at the Grotius Centre for International Legal Studies at Leiden University.

Sean D. Murphy
Manatt/Ahn Professor of International Law, George Washington University; Member, International Law Commission.
Article

Asian Perspectives on the International Law Commission’s Work on Crimes Against Humanity

Journal African Journal of International Criminal Justice, Issue 2 2020
Keywords Asian States, crimes against humanity, international criminal law, Draft Articles on Prevention and Punishment of Crimes Against Humanity
Authors Mari Takeuchi
AbstractAuthor's information

    No Asian States expressed regret over the failure of the Sixth Committee to reach a consensus on the elaboration of a convention on crimes against humanity. This article examines the comments of Asian States during the Sixth Committee debate on the final Draft Articles submitted by the International Law Commission, demonstrating that most States believed further discussions were needed. It situates these comments against the wider Asian approach to international criminal law, and argues that the concerns of the Asian States during the Sixth Committee are part of a broader context. In doing so, it suggests a common ground for future discussion and the progression of a convention.


Mari Takeuchi
Professor of International Law, Kobe University, Graduate School of Law, Japan.
Article

Gender and the ILC’s 2019 Draft Articles on the Prevention and Punishment of Crimes Against Humanity

Journal African Journal of International Criminal Justice, Issue 2 2020
Keywords gender, crimes against humanity, international criminal law, Rome Statute
Authors Indira Rosenthal and Valerie Oosterveld
AbstractAuthor's information

    The International Law Commission’s Draft Articles on the Prevention and Punishment of Crimes Against Humanity document is the latest international instrument to address gender-based crimes under international law and the first to do so outside the context of international courts. The elaboration of a treaty on crimes against humanity provides a critical opportunity to affirm that gender-based crimes are among the gravest crimes under international law. This article examines discussions on the meaning of the term ‘gender’ under the ILC’s Draft Articles, with reference to the discussions two decades prior on the definition of ‘gender’ in the Rome Statute of the International Criminal Court, the basis for the Articles’ consideration of sexual and gender-based violence. It then turns to the ILC consultation process, and the 2019 discussion of the ILC’s Draft Articles in the Sixth (Legal) Committee of the United Nations General Assembly on the term ‘gender’. Additionally, it considers a number of concerns raised by States and civil society on the definition of some of the gender-based crimes included in the Draft Articles and concludes by arguing for a comprehensive gender analysis of all of the Draft Articles.


Indira Rosenthal
Indira Rosenthal, Independent Consultant, Gender, Law and Justice; PhD Candidate, Faculty of Law, University of Tasmania (Australia).

Valerie Oosterveld
Valerie Oosterveld, University of Western Ontario Faculty of Law (Canada).
Article

Access_open Introduction to the Symposium on a Way Forward

Academic and Practitioner Perspectives on the ILC Draft Articles on Prevention and Punishment of Crimes Against Humanity as adopted on Second Reading

Journal African Journal of International Criminal Justice, Issue 2 2020
Authors Charles C. Jalloh and Leila N. Sadat
Author's information

Charles C. Jalloh
Charles C. Jalloh is Professor of Law, Florida International University and Member and Chair of the Drafting Committee (seventieth session) and Rapporteur (seventy-first session), International Law Commission. Email: jallohc@gmail.com.

Leila N. Sadat
Leila N. Sadat is James Carr Professor of International Criminal Law and Director, Whitney R. Harris World Law Institute, Washington University School of Law.
Article

An Analysis of State Reactions to the ILC’s Work on Crimes Against Humanity

A Pattern of Growing Support

Journal African Journal of International Criminal Justice, Issue 2 2020
Keywords crimes against humanity, Sixth Committee, International Law Commission, Draft Articles, International Criminal Court
Authors Leila N. Sadat and Madaline George
AbstractAuthor's information

    The international community has been engaged with the topic of crimes against humanity since the International Law Commission (ILC) began work on it in 2013, with a view to draft articles for a future convention. Between 2013 and 2019, 86 States as well as several entities and subregional groups made comments on the ILC’s work at the United Nations Sixth Committee or through written comments to the ILC. This article is the culmination of the Whitney R. Harris World Law Institute’s work cataloguing and analysing States’ comments by assigning each statement to one of five categories – strong positive, positive, neutral, negative, and strong negative – examining both specific words and the general tenor of the comments. This article analyses the development of States’ reactions to the ILC’s work over time, as well as specific issues that frequently arose, observing that there is a pattern of growing support from States to use the ILC’s Draft Articles on Prevention and Punishment of Crimes Against Humanity as the basis for a new convention.


Leila N. Sadat
Leila Nadya Sadat is the James Carr Professor of International Criminal Law, and Director, Whitney R. Harris World Law Institute, Washington University School of Law. This work could not have been accomplished without the extraordinary efforts of several Harris Institute Fellows, including Fizza Batool, Evelyn Chuang, Tamara Slater, and Kristin Smith and Research Fellows Kate Falconer, Sam Rouse, and Ke (Coco) Xu.

Madaline George
Madaline George, JD, is the Senior Fellow at the Whitney R. Harris World Law Institute at Washington University School of Law.
Article

Control in International Law

Journal African Journal of International Criminal Justice, Issue 1 2019
Keywords Effective / overall control, international human rights law, international criminal law, responsibility of states, statehood
Authors Joseph Rikhof and Silviana Cocan
AbstractAuthor's information

    The concept of control has permeated various disciplines of public international law, most notable international criminal law, international humanitarian law, international human rights law and the law of statehood as well as the law of responsibility for states and international organizations. Often this notion of control has been used to extend the regular parameters in these disciplines to capture more extraordinary situations and apply the same rules originally developed within areas of law, such as the application of the laws of war to occupation, the rules of human rights treaties to extraterritorial situations or state responsibility to non-state actors. This article will examine this notion of control in all its facets in international law while also addressing some of its controversies and disagreements in the jurisprudence of international institutions, which have utilized this concept. The article will then provide an overview of its uses in international law as well as its overlap from one discipline to another with a view of providing some overarching observations and conclusions.


Joseph Rikhof
Joseph Rikhof is an adjunct professor at the Common Law Faculty of the University of Ottawa.

Silviana Cocan
Silviana Cocan holds a double doctoral degree in international law from the Faculty of Law of Laval University and from the Faculty of Law and Political Science of the University of Bordeaux.
Article

The International Criminal Court and Africa

Contextualizing the Anti-ICC Narrative

Journal African Journal of International Criminal Justice, Issue 1-2 2016
Keywords International Criminal Court (ICC), security, African Union (AU), war crimes, international law
Authors Brendon J. Cannon, Dominic R. Pkalya and Bosire Maragia
AbstractAuthor's information

    This article critiques attempts by some in Africa to brand the International Criminal Court (ICC) as a neocolonial institution and stooge of the West. These arguments accuse the ICC of playing a double standard, being overly focused on trying African defendants, and warn that the Court risks exacerbating factionalism and ethnic divisions thereby threatening peace and reconciliation efforts. Although we neither defend nor champion the ICC’s mandate, we deem such criticisms as hyperbole. At best, they attempt to whitewash the instrumental role played by African states in the birth of the Court and ignore the fact that many of the ICC cases were referred there by African governments. Furthermore, the current African narrative understates the ICC’s potential to midwife local judiciaries and contribute positively towards conflict resolution in Africa through the promotion of at least a measure of accountability and offers of justice, thereby taming elite immunity and impunity in states where justice regimes are either weak or non-existent. Until African states strengthen their judiciaries to ensure such references to the ICC are indeed a last resort, the Court will continue to remain the only credible forum for states emerging from conflict and seeking justice and reconciliation.


Brendon J. Cannon
Brendon J. Cannon is an Assistant Professor of Political Science at Khalifa University’s Institute of International and Civil Security (IICS) in Abu Dhabi, UAE.

Dominic R. Pkalya
Dominic R. Pkalya is a post-graduate student at Kisii University, Faculty of Social Sciences in Nairobi, Kenya.

Bosire Maragia
Bosire Maragia is an Adjunct Lecturer of Political Science (African Politics) at the University of Maryland, Baltimore County, USA and works for the United States Federal Government. The views expressed herein are his and do not reflect or constitute official US government policy.
Article

Process Pluralism in Transitional-Restorative Justice

Lessons from Dispute Resolution for Cultural Variations in Goals beyond Rule of Law and Democracy Development (Argentina and Chile)

Journal International Journal of Conflict Engagement and Resolution, Issue 1 2015
Keywords transitional justice, conflict resolution, process pluralism, cultural variation, individual and collective justice
Authors Carrie Menkel-Meadow
AbstractAuthor's information

    This article reviews some of the key issues in transitional justice process and institutional design, based on my research and experience working and living in several post-conflict societies, and suggests that cultural and political variations in transitional justice design, practices, and processes are necessary to accomplish plural goals. The idea of process pluralism, derived from the more general fields of conflict resolution and ‘alternative dispute resolution’ in legal contexts, is an essential part of transitional justice, where multiple processes may occur simultaneously or in sequence over time (e.g. truth and reconciliation processes, with or without amnesty, prosecutions, lustration and/or more local legal and communitarian processes), depending on both individual and collective preferences and resources. Transitional justice is itself ‘in transition’ as iterative learning has developed from assessment of different processes in different contexts (post-military dictatorships, civil wars, and international and sub-national conflicts). This article draws on examples from Argentina’s and Chile’s emergence from post-military dictatorships to describe and analyze a plurality of processes, including more formal governmental processes, but also those formed by civil society groups at sub-national levels. This article suggests that ‘democracy development’ and legalistic ‘rule of law’ goals and institutional design may not necessarily be the only desiderata in transitional justice, where more than the ‘legal’ and ‘governmental’ is at stake for more peaceful human flourishing. To use an important concept from dispute resolution, the “forum must fit the fuss”, and there are many different kinds of ‘fusses’ to be dealt with in transitional justice, at different levels of society – more than legal and governmental but also social, cultural and reparative.


Carrie Menkel-Meadow
Carrie Menkel-Meadow is Chancellor’s Professor of Law and Political Science, University of California, Irvine.

Gábor Sulyok
Head of department, Senior research fellow, Hungarian Academy of Sciences, Centre for Social Sciences, Institute for Legal Studies; Associate professor, Széchenyi István University, Deák Ferenc Faculty of Law and Political Sciences.
Article

Access_open International Criminal Court in the Trenches of Africa

Journal African Journal of International Criminal Justice, Issue 0 2014
Keywords Africa and International Criminal Court, Amnesty and war crimes, International Criminal Court, International criminal justice, Peace agreements
Authors Lydia A. Nkansah
AbstractAuthor's information

    The pursuit of international criminal justice in Africa through the International Criminal Court (ICC) platform has not been without hitches. There is a rift between the African Union (AU), as a continental body, and the ICC owing to the AU’s perception that the ICC is pursuing selective justice and the AU’s misgivings about the ICC’s indictment /trial of some sitting heads of states in Africa. This article argues that the claim of selective justice cannot be dismissed because it undermines the regime of international criminal justice. The indictment/trial of serving heads of states also has serious constitutional and political implications for the countries involved, but this has been ignored in the literature. Further, the hitches arise both from the failure of the ICC to pay attention to the domestic contexts in order to harmonize its operations in the places of its interventions and from the inherent weakness of the ICC as a criminal justice system. The ICC, on its part, insists that any consideration given to the domestic contexts of its operations would undermine it. Yet the ICC’s interventions in Africa have had serious political, legal and social implications for the communities involved, jeopardizing the peaceful equilibrium in some cases. This should not be ignored. Using the law to stop and prevent international crimes in African societies would require a concerted effort by all concerned to harmonize the demand for justice with the imperatives on the ground.


Lydia A. Nkansah
LL.B, LL.M (Bendel State University), BL (Ghana & Nigeria), PhD (Walden University) is Senior Lecturer, Faculty of Law, Kwame Nkrumah University of Science and Technology, Kumasi, Ghana. The section of the article under the subheading “Putting the ICC in the Domestic Contexts of its Operation” is partly based on some ideas from the author’s PhD dissertation titled ‘Transitional Justice in Postconflict Contexts: The Case of Sierra Leone’s Dual Accountability Mechanisms’, submitted to Walden University, 2008.
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