Jurisdiction over International Crimes: The International Criminal Court and Other Ways of Ending Impunity

Authors

Irina Valusha
Kazimieras Simonavicius University, Lithuania
https://orcid.org/0009-0009-1248-5256
Maryna van den Boom
Kazimieras Simonavicius University, Lithuania
https://orcid.org/0009-0006-9151-4331
DOI: https://doi.org/10.12797/9788383680354

Keywords:

Jurisdiction, impunity, International Criminal Court (ICC), universal jurisdiction, rule of law, core crimes, ad hoc tribunals, Genocide Convention, transfer of children

Synopsis

The book addresses the challenges and limitations in prosecution of individuals who committed crimes under international law. The individual criminal responsibility is broadly recognized and based on the understanding of the feasibility of such accountability in the present era.
The Nuremberg Trials in 1946 marked a pivotal moment, establishing the first international tribunal for individuals and initiating a new chapter in international law’s pursuit of perpetrators threatening common values. The establishment of the permanent International Criminal Court (ICC) under the Rome Statute in 1998 and its operations since July 2002 show that its jurisdiction has not effectively curtailed the impunity of dictators, tyrants, and torture servants, especially in non-member States.
Motivated by these shortcomings, the authors have analyzed the ICC’s procedural capacity to prosecute offenders from non member States to the Rome Statute and explored alternative jurisdiction modes over international crimes committed by individuals. The book advocates a broader application of the universal jurisdiction principle, recognizing the limitations of ad hoc criminal tribunals, hybrid courts, and the practical constraints of the ICC. The authors propose that, in addition to the ICC, international organizations and national states—especially those progressing toward the rule of law—can enhance the international justice system. Their suggestions include supporting civil society, establishing independent investigative mechanisms, maintaining human rights monitoring processes, and sharing best practices in investigating international crimes, including those covered by the Rome Statute, within national legal systems that apply the universal jurisdiction principle.

Chapters

  • TABLE OF CONTENTS
  • CHAPTER 1: JURISDICTION ISSUES AND INTERNATIONAL CRIMINAL LAW
  • Introduction: What do we mean by jurisdiction? ………. 17
  • Part 1. Jurisdiction in international criminal law: Retrospective and contemporary overviews ………. 23
  • 1. International criminal law: Genesis and elements ………. 23
  • 2. International criminal responsibility of natural persons and responsibility of states for international wrongful acts ………. 26
  • 3. Selected principles of public international law and lex specialis of criminal law ………. 30
  • Part 2. Jurisdiction and universal jurisdiction: An in-depth study ………. 45
  • 4. Background information ………. 45
  • 5. Building the UJ framework ………. 49
  • 6. Understanding UJ ………. 53
  • 7. UJ – Scope and modes of application ………. 54
  • Part 3. Global criminal justice as a forum for jurisdiction over international crimes ………. 71
  • 8. Institutional framework of international justice: Historical and legal overview ………. 71
  • 9. Substantive elements of international criminal justice ………. 100
  • 10. Individuality, accountability and duty to act ………. 101
  • 11. Selected international treaties (focus on the issue of jurisdiction) ………. 103
  • 12. Conclusions: The growing role of international criminal law and the best option for criminal jurisdiction ………. 120
  • CHAPTER 2: JURISDICTION OF THE INTERNATIONAL CRIMINAL COURT AND PROSECUTION OF OFFENDERS FROM NON-MEMBER STATES OF THE ROME STATUTE
  • Introduction: Are the ICC’s problems related to the lack of universal jurisdiction? ………. 125
  • Part 1. The legal basis for the prosecution of macro-criminals by the ICC ………. 129
  • 1. The legal nature of the International Criminal Court and applicable law ………. 129
  • 2. The jurisdiction of the International Criminal Court and applicable international law ………. 131
  • 3. The jurisdiction of the ICC in respect to individuals – offenders from non-member states ………. 142
  • Part 2. Problems of international law in the exercise of the jurisdiction of the ICC against offenders from non-member states of the Rome Statute ………. 145
  • 4. Officials as persons addressed by the ICC and the principle of immunity ………. 146
  • 5. The principle of state immunity and immunity of the individual sovereign ………. 148
  • 6. Immunity in the most serious area: Human rights violations ………. 158
  • 7. Immunity issues, international human rights and humanitarian law conventions ………. 161
  • 8. Exemptions of immunity beyond the limits of international conventions ………. 165
  • 9. State immunity in light of the constitutionalisation of international law..... 175
  • Part 3. General principles nullum crimen sine lege, nullum poena sine and the personal responsibility of offenders from non-member states of the Rome Statute in accordance with applicable international criminal law ………. 181
  • 10. General principles among the sources of international criminal law ………. 182
  • 11. The nullum crime principle as an integral part of international criminal law ………. 184
  • 12. The principle nullum crimen, nulla poena sine lege in the Rome Statute ………. 185
  • 13. Nullum crimen sine lege as the barrier to the prosecution power of the ICC ………. 186
  • Conclusions ………. 187
  • Part 4. The jurisdiction of the International Criminal Court over offenders from third countries and the problem of third-party jurisdiction ………. 189
  • 14. The third effect of the regulation on the jurisdiction of the International Criminal Court ………. 190
  • 15. The threat of the Rome Statute for US troop contingents ………. 192
  • Part 5. Restrictions and obstacles to the jurisdiction of the International Criminal Court ………. 195
  • 16. The blocking of the jurisdiction of the International Criminal Court by the Security Council ………. 196
  • 17. Exemption from the jurisdiction of the International Criminal Court by means of bilateral agreements ………. 199
  • 18. The extinction of the jurisdiction of the International Criminal Court by ad hoc courts: True or false? ………. 200
  • 19. Immunity interpretation as a misleading concept ………. 203
  • Conclusions: Overall evaluation and outcome ………. 206
  • CHAPTER 3: LEGAL PRECONDITIONS FOR THE EXERCISE OF JURISDICTION BY THE ICC AGAINST AN INDIVIDUAL FROM A STATE NON-MEMBER OF THE ICC: A CASE STUDY OF PRE-TRIAL CHAMBER 2’S WARRANTS OF ARREST FOR TWO INDIVIDUALS FROM THE RUSSIAN FEDERATION ………. 209
  • Introduction ………. 211
  • Part 1. Facts constituting an alleged crime and crime qualification: What to choose, war crimes (Article 8[2][b][viii]), crimes against humanity (Article 7[1][d]) or genocide (Article 6[e]) of the Rome Statute? ………. 217
  • Part 2. State of law: Lex specialis with respect to the protection of children ………. 225
  • 1. International and national (Russian, Ukrainian, Belarusian) legal frameworks on the protection of children’s rights and criminalisation of acts violating those rights ………. 225
  • 2. Understanding genocide as the crime of crimes in hard and soft law ………. 243
  • 3. The forcible displacement of children as an act of genocide: Reflections on this crime in the jurisprudence of the tribunals ICTY/ICTR, recent doctrine on Article 6(e) of the Rome Statute ………. 261
  • Part 3. Jurisdiction of the ICC on the case on the alleged forcible transfer of children ………. 265
  • 4. Actus reus: Prohibited by the statute underlying acts ………. 266
  • 5. Mens rea: specific genocidal intent (dolus specialis) and general intent (dolus generalis) ………. 279
  • 6. Ratione personae ………. 286
  • Conclusions ………. 294
Valusha-Boom-Jurisdiction-over-International-Crimes

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Published

December 20, 2023

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Copyright (c) 2023 Irina Valusha, Maryna van den Boom