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Since the reopening of the trials for the crimes committed by the last military dictatorship, new aspects have emerged on the scene, one of them being the age-impunity rhetoric. In its visual dimension, we understand this rhetoric to mean the representation of the perpetrators that has been taking shape in recent years, enabling them to be exempted from guilt and responsibility for the crimes committed by virtue of their advanced age. We argue that the visual configures a certain aesthetic that provides a scaffolding for impunity and its naturalization. In order to enter into the construction of this representation, we will put in tension the pair seen-unseen through photographs and editorials in the written press.

Despite the aspirations of the International Criminal Court (icc), it is unlikely to achieve an end to impunity for crimes of concern to the international community without acknowledgement of and due engagement with the politics of international criminal law. A major threat to the legitimacy of the Court is its relationship with the United Nations Security Council (unsc). unsc referrals of conflict situations under Article 13(b) of the Rome Statute remain subject to geo-political considerations. The exercise is thus arbitrary at best, and may render the icc an instrument of political coercion at worst. An apolitical approach to conflicts given this context is almost antithetical to justice and has already given rise to tensions between the Court and some affected member states. Managing the asymmetry created by unsc referrals and rethinking its seemingly unjustified encroachment in the affairs of less influential states should become the priority for the Court.

Applying both constructivism and the English school of international relations, the icc is shown to be founded upon, and simultaneously constitutive of, a vision of universally shared humanity. However, the icc performs this role of norm-entrepreneurship within a structure premised upon Westphalian notions of sovereignty that are not conducive to this vision. This tension is embedded within the Rome Statute due to compromises struck in its drafting between those actors who envisioned a solidarist ‘world community’, and those attached to the status quo of an ‘international society’. These compromises have given rise to power relations that undermine the vision of ending impunity for international crimes. Consequently, it is not simply by one’s conduct that they come before the Court as a hostis humani generis, but rather because they have no powerful friends left. The efficacy of the icc is contingent on this transition between two competing conceptions of international society.

The government of Kenya has employed a wide range of strategies to undermine the recently-dismissed prosecutions of President Uhuru Kenyatta and Deputy President William Ruto before the International Criminal Court (icc). This Article argues that these strategies are part of an integrated backlash campaign against the icc, one that encompasses seemingly unrelated actions in multiple global, regional and national venues. We identify three overarching themes that connect these diverse measures—politicizing complementarity, regionalizing political opposition, and pairing instances of cooperation and condemnation to diffuse accusations of impunity. By linking its discrete acts of opposition to these three themes, the government ultimately increased the effectiveness of its campaign against the Court. Our findings provide insights for analysing other instances of backlash against international courts and institutions.

isis has committed unfathomable atrocities in Syria and Iraq. The icc has been called to take action in order to deal with the impunity protecting isis criminals. Nonetheless, the Prosecutor is not inclined to exercise the Court’s jurisdiction over isis. In 2015, the Prosecutor issued a clarifying statement on the situation of isis in Iraq and Syria. She stated that although the crimes committed by isis fell within the jurisdiction of the Court, it lacked a jurisdictional basis to open the preliminary examination. Nevertheless, it seems that there are some contradictory signs with the Prosecutor’s decision in the law, policy and practice of the Court. The present article is a critical reading of the Prosecutor’s decision. The first part describes the content of the Prosecutor’s statement. The second part criticizes the statement from procedural, substantive and purposive aspects. Finally, it introduces a legal way for reviewing the Prosecutor’s decision.

The International Criminal Court was established to tackle impunity for international crimes. Its jurisdiction is premised on states being primarily responsible for investigating and prosecuting those who commit international crimes, with the Court only acting as a last resort. The principle of complementarity has arisen to explain such an arrangement. However, in practice in situational countries before the Court there has not been a perfect implementation of complementarity. Far from it, states have struggled to investigate and prosecute all those responsible, competing with other transitional justice needs and regional politics. This is apparent in Uganda, as the first situation referred to the International Criminal Court (ICC) in 2003. It has been embroiled in controversy of peace versus justice, yet only this year saw the transfer of the first indictee, Dominic Ongwen, before the Court. In the interim the Uganda government has become a critic of the ICC in regional discussions of the Court targeting Africans, despite inviting the Court to investigate crimes in its own country. This article charts the effects of complementarity in Uganda examining the development of domestic legislation, the creation of the International Crimes Division and the first international crimes trial of Thomas Kwoyelo. The emphasis of this article is on a more victim-orientated perspective, as the ICC is often extolled for its ‘innovative’ victim provisions of participation, protection and reparation. Moreover, in ending impunity, victim provisions are seen as a way to operationalize the independence and effectiveness of such domestic processes, in the face of political settlements and governmental discretion.

The International Criminal Court (icc) is a global court created to administer independent and impartial international criminal justice. It, therefore, has jurisdiction over all persons who have committed ‘the most important crimes of international concern’, including genocide, crimes against humanity, war crimes, and the crime of aggression. The court’s principal mission is to ensure the punishment of these crimes and the eradication of the impunity of their perpetrators in all parts of the world. However, the icc’s current justice administration system appears so selective and subject to external influence and manipulation as to defeat the global, independent, and impartial justice goal that the court is created to accomplish. This article examines this selectivity under the following sub-headings: geographic selectivity, situation selectivity, identity selectivity, and thematic selectivity. The article further explores some of the consequences of this selective justice regime and suggests some reforms in the system.

The International Criminal Court (icc) sits at the perfect crossroad of law and politics. As a primarily consent-based legal system, the icc is only effective to the extent that it has the political support from states who want to see it succeed in its mission to end impunity for the most serious crimes of concern to the international community. Despite this, the Prosecutor’s interpretation of the ‘interests of justice’ criterion limits the extent to which the Prosecutor can consider the political ramifications of their actions. This article argues that the Prosecutor has legal grounds to consider politics in their analysis of whether proceeding with an investigation or prosecution would not be in the ‘interests of justice’. This article also argues that soft power theory can be used to overcome arguments that politics should not be considered in the exercise of prosecutorial discretion, due to the consent-based nature of the icc regime.

This article reviews the legacy of the International Criminal Tribunal for Rwanda (ICTR) under a specific compliance perspective and asks whether the Tribunal’s jurisprudence furthered the adherence to norms of international criminal and humanitarian law. The Tribunal’s impact on the circulation, emergence and enforcement, of the prohibitions of genocide and other serious violations of international humanitarian law will thus be scrutinised. Furthermore, the legitimacy of the ICTR’s jurisprudence plays a major role as human beings not only follow a logic of consequence but also a logic of appropriateness. This combined approach will show that the ICTR – despite its shortcomings – has furthered compliance by diffusing the norms of international criminal and humanitarian law not only to Rwanda and the Great Lakes Region, but also to the international community.

This article provides an insight into the Residual Special Court for Sierra Leone (RSCSL), which was established by an agreement between the United Nations and the Government of Sierra Leone, to carry out the essential residual functions of the Special Court for Sierra Leone when it closes. The RSCSL epitomizes the commitment of the UN, the Sierra Leone Government, and the international community to ensure the continued protection of witnesses, the proper enforcement of the sentences of persons convicted by the SCSL, the continued respect of the rights of such persons by providing them with a sound judicial mechanism for the review of convictions and sentences, and that there is no impunity for the sole remaining SCSL fugitive after the closure of the SCSL. If the RSCSL manages to overcome the challenges identified in this article, it will become an important pillar of the new architecture of international criminal justice.

The prospects of the emerging international criminal justice system, namely the International Criminal Court, serving as a catalyst to end impunity of those most responsible for crimes against humanity, war crimes, genocide, and massive violations of human rights, remains bleak given four underlying factors: the ideology of deterrence that undergirds the system, jurisdictional limitations, the backlash of its involvement in and issuance of arrest warrants during highly contentious conflicts. This article offers some insight into these issues and the obstacles they present to the success of the International Criminal Court in ending impunity and future cases of such criminality. We begin by discussing the International Criminal Court followed by the ideology of deterrence and issues associated with the Court’s jurisdiction. We then draw on two case examples, namely Uganda and Columbia, to discuss the challenges to involvement in ongoing conflicts and post-conflict situations.

The debate on how to deal with the past in Serbia is still ongoing almost twenty years after the end of the armed conflict in the former Yugoslavia. From the very start the international community has put major emphasis on the criminal prosecution and conviction of the persons mostly responsible for the war crimes in the region, both by establishing the ICTY and encouraging national prosecutions. In the discussions about ‘dealing with the past’ in Serbia little if any attention has been devoted to the views and expectations of the local population, although they provide an additional source of information about the strategies and the mechanisms for dealing with the crimes of the past and reconstructing the future. The objective of this chapter is to find out what people in Serbia think about the central debates around impunity and accountability for war crimes, and more specifically which importance they attach to criminal prosecutions and truth commissions in the country. For this purpose, it reports about the main findings of a quantitative survey conducted in Serbia in 2007, and concludes that the picture is not black and white but complex instead.

International criminal courts were created to address issues of impunity for the gravest of crimes, and undoubtedly victims are meant to be the direct beneficiaries of the justice process. Traditionally, however, victims have not always featured prominently in international criminal trials. In response to this perceived oversight, victims have been provided broad rights at the Extraordinary Chambers in the Courts of Cambodia (ECCC) and the International Criminal Court (ICC). After addressing the theoretical underpinnings of criminal justice and the development of the procedural role of the victim in domestic criminal jurisdictions and international human rights discourse, this article will examine the rights of victims at the ECCC and ICC and explore what challenges arise when victims are afforded a greater role in the international criminal process. To structure the analysis, the framework will focus on two central concepts, namely the unique characteristics of international criminal proceedings and human rights standards.

Following Israel’s ‘Operation Cast Lead’, the UN called upon the Israeli and Palestinian authorities to conduct investigations and prosecutions of international crimes in accordance with international standards. The measures that the Israeli authorities undertook, when carefully examined, fall short of international standards. When examined under the lens of the admissibility criteria of the complementarity principle under Article 17 of the ICC Statute, this deficient practice emerges as part of a broader policy intended to shield perpetrators and maintain a climate of impunity for those committing international crimes. The need to find alternative avenues to provide victims with access to justice calls for an interrogation of the role of international criminal justice mechanisms, such as the ICC, in the Palestinian-Israeli conflict. This article examines recent developments concerning Israel’s investigations under the criteria set out by the complementarity principle.

In April 2012, Angola celebrated ten years of a peace deal which contained an amnesty law. The Angolan government has over the past ten years demonstrated to be unwilling to prosecute perpetrators of war crimes. Potential war criminals currently (still) take important positions in the Angolan government or live as well known public figures in-and outside Angola. The author analyses that especially a lack of domestic interest in doing justice and third countries' interests in Angola's oil reserves might serve as an explanation why up to this moment no justice has been done. The Angolan case illustrates how international actors may react by taking a 'one-day principled position' when it comes to calling for prosecution. Potentially hampering fragile peace negotiations, critique on the blanket nature of the amnesty is before and immediately after the peace process voiced, not to be repeated anytime, anyplace, anywhere. © 2012 Koninklijke Brill NV, Leiden.

The Statutes of the ad hoc Tribunals grant prosecutorial staff functional immunity, which aims to protect them against undue interference by states. Defence counsel, however, is not mentioned. As a result, it is unclear if counsel enjoy any such protection, and if so, what shape or form this may take. While the ad hoc Tribunals' Statutes are silent on this matter, the arrests of defence counsel in Croatia and Rwanda have forced the ICTY and ICTR to address this omission, which has generated a body of case law that will provide the starting point for this article. The different decisions can be classified into three distinct approaches, which will accordingly be scrutinized. This article will advocate a principled approach to defence counsel immunity, consisting of functional and personal immunity, as well as a principled approach to the waiver thereof. This will both ensure the necessary protection of an effective defence, while preventing these immunity arrangements to result in impunity.

In light of serious resource constraints, international criminal courts are required to select a small number of crimes for prosecution, leaving others to national courts or, more often, impunity. In recent years, feminists have advocated that such courts give priority to prosecuting sex crimes even at the expense of other serious crimes, including those involving killing. Many international prosecutors have heeded this call, placing special emphasis on the prosecution of sex crimes. At the same time, empirical evidence shows that many people consider sex crimes less serious than crimes resulting in death. There is thus a need to ground the selection of sex crimes for prosecution in the purposes of international criminal law. This essay examines the four primary philosophical bases advanced for international prosecutions – retribution, deterrence, expressivism, and restorative justice – to determine how they inform decisions whether to give priority to sex crime prosecutions. It concludes that retribution and deterrence support such selections at least some of the time, and expressivism and restorative justice provide an even stronger foundation for giving priority to sex crimes.

Many actors within the field of international criminal justice, including those who work for the Court itself, have heralded the deterrent power of the court and its ability to remove impunity for violations of international criminal law. Practitioners and scholars routinely assume a probability at best, to an assumption of sureness, of a powerful deterrent effect. Given the ongoing crimes against humanity that have occurred in the Twenty-First Century, such claims can only be seen as hopeful proclamations. This article examines the potential inhibitory effects that the Court may have on violations of international criminal law, especially international humanitarian law, grounded in criminological insights and explanatory power. To do so, we lay out the current state of thinking in deterrence theory and critically explore how it can, or fails to, generate the effects which so many international public actors, including the court itself, claim.

Canada recently completed its first genocide trial, which resulted in the conviction of the Rwandan accused, Desire Munyaneza, for crimes committed during the Rwandan genocide. While the case is still under appeal, it represents a significant success for Canada’s relatively new core crimes legislation, the Crimes Against Humanity and War Crimes Act, and was the first prosecution undertaken pursuant to that law. Drawing upon the Munyaneza case, the authors analyze the legislation and evaluate its effectiveness. They conclude that the model is an effective one that both bodes well for Canada’s future participation in the battle against impunity, and provides a model upon which other states might wish to draw.

This article draws attention to the relevance of criminological insight on issues of international criminal law and criminal justice. In particular, the ideology and theory of deterrence, legitimacy, and international criminal law are drawn from. After all, the deterrent effect has been touted as a solid empirical fact with the progression and development of 'international criminal justice', the international tribunals since the mid 1990s, and the International Criminal Court. Yet, the current rather blind belief in the deterrent impact of international criminal justice remains, regretfully, a bit premature. Additionally, beyond the concepts of deterrence and legitimacy, criminologists have much to contribute to international criminal justice. As noted, there are social, political, cultural, and geographical issues that play a role in not only crime commission, but in the hindrance of and/or facilitation of deterrence. Criminologists are well positioned to show how these connections may facilitate or hinder the broader goals of the legal community.

At its 18th session held in September 2009, the Congress of the International Association of Penal Law adopted the Resolution on Universal Jurisdiction (RUJ). For the past decade, universal jurisdiction has been one of the most debated issues in international criminal law, and the RUJ has been expected to shed valuable light on this controversial subject matter. After setting out the rationale and scope of universal jurisdiction, the RUJ regulates its exercise and subjects it to a number of requirements and limitations. The drafters should be commended for their general support of the idea that states can exercise universal jurisdiction over a limited number of international crimes. However, the RUJ does suffer from a number of weaknesses. Whether it will ultimately serve as a point of reference for state legislators and practitioners therefore remains to be seen.

The complementarity regime serves as a system to encourage and facilitate the compliance of states with their responsibility to investigate and prosecute international core crimes. It can contribute to the creation of an effective indirect enforcement mechanism among state parties to the Rome Statute; however, the current practice of the ICC falls short of materializing that. In the Ugandan case, the Ugandan referral displays a number of negative aspects regarding the ICC prosecutorial policy in practice. Firstly, Uganda does not seem to fulfil the "inability" criterion as stipulated in Article 17. Secondly, the policy of encouraging and seeking state referrals might lead to certain negative outcomes vis-à-vis fulfilling the purposes of the Rome Statute to end impunity. The presumption that state referrals could guarantee state cooperation is over simplistic. The ICC's position in the DRC situation raises other concerns, particularly with regard to the ICC's approach to cases of "inaction". Lubanga and Germain Katanga were already in the Congolese custody waiting trial for more serious crimes when the ICC requested their surrender considering that the DRC was not investigating the crimes the ICC has been investigating. The Congolese judicial system, at least in certain areas of the DRC (including Kinshasa) was "able and willing". Based on the above, the article concludes that the ICC Prosecutor's policy on the admissibility of "inactions" could encourage in theory national systems to prosecute core crimes; however, in reality it could lead to the opposite.

In this article, the author examines the issue of justice versus revenge in the context of jus cogens crimes and fundamental moral and legal principles. Her objective is to provide a critical appraisal of M. Cherif Bassiouni's theory of punishment in the light of his general jurisprudence. The main question is whether there is a consistency problem. On the one hand, Bassiouni draws a distinction between justice and revenge. On the other hand, the distinction is not a dichotomy. This is to say that Bassiouni does not dogmatically prohibit revenge as a punitive measure in circumstances where jus cogens crimes have been committed and where there is no effective, independent and impartial judiciary, which can secure justice in terms of strict and legal accountability. Outlining the various premises for Bassiouni's so-called Mixed Model, the author shows that conclusions pertaining to consistency should not be interpreted simplistically.

The Colombian Parliament's Justice and Peace law of 2005, introduced by the government of President Alvaro Uribe, allows members of armed groups involved in Colombia's 40-year old conflict to re-enter civilian life by paying an alternative penalty of 5-8 years' prison, even where their crimes concern mass-murder. The process is conditional on a full confession and the proper recompense for the victims. The Law however benefits primarily the pro-state paramilitaries, as the left-wing guerrilla groups have yet to make peace, and has thus been described as a transitional justice system without the transition. This article considers the provisions of the 2005 law against the background of the Constitutional Court's 2006 decision on its validity and the requirements of international criminal law and human rights law. It considers whether it satisfies the requirements of the International Criminal Court, which has jurisdiction over Colombia's conflict but with an opt-out till 2009 for war-crimes. Will the process resolve the problem of Colombia's "impunity" – the failure to prosecute paramilitary crimes - which has been condemned by the Inter-American Court of Human Rights? In conclusion it compares the process to other transitional justice systems in South Africa and Northern Ireland.

Full and expedient cooperation of UN member States in the arrest and transfer of war criminals constitutes a key factor in addressing war crimes and providing redress to the victims. Through the analysis of three recent cases of arrests and transfers to the International Criminal Tribunal for the former Yugoslavia, the authors show the legal difficulties and political considerations that some States face when implementing their international obligations to arrest and transfer. The three cases analyzed demonstrate that the arrest and transfer of war criminals is more likely to take place when State authorities are truly committed to cooperate, and act on that commitment by adopting specific domestic legislation to make the process of arresting and transferring smooth and transparent.

It is not widely appreciated that the recent six year conflict in the Democratic Republic of Congo was the deadliest war since World War II. An estimated 3.8 million people, mostly civilians, lost their lives as a result of the conflict. The West must accept a large degree of responsibility for this tragedy as the war was fuelled to a great extent by western multinationals. These companies either directly or indirectly purchased or exploited the natural resources under the control of the various armed groups. Unscrupulous corporations can engage in this behaviour with impunity in weak governance zones. Human Rights NGOs have tried to hold some of these companies to account by filing complaints in the UK using the "soft law" mechanism of the OECD Guidelines on Multinational Enterprises. However, the British Government displayed a breathtaking unwillingness to hold companies to account. It is increasingly clear to both responsible business and the human rights community that a robust accountability mechanism must now be created.

International criminal justice has made a tremendous leap forward since the mid-1990s. Gradually, it tends to reacting more and more to situations of armed conflict with declared objectives aiming at restoring peace and bringing about reconciliation among people. To what extent have these objectives been achieved?This article is revolves around this important question. The analysis is particularly focused on the case of the International Criminal Tribunal for Rwanda, where the author has been working for the past ten years. Ad hoc international tribunals have helped formalizing the judicial recognition by the international community of crimes that go against the conscience of the entire mankind. They consecrate their disapproval of the commission of such offences. In so doing, they contribute towards fighting impunity, which has for long been associated with those offences. They function in an environment where conventional national jurisdictions would have found it difficult to operate with efficiency. The author is neither overestimating nor underestimating their contribution. It is presented as one of the components in a reply that is inescapably of a multiple nature, to some complex situations where a remedy is as difficult as the illness to be cured. It is in this perspective that such contribution is indeed appreciated.