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In: General Principles and the Coherence of International Law

The introduction of an International Criminal Law Section (icls) to the prospective African Union (au) African Court of Justice and Human and Peoples’ Rights (acjhr) has sparked academic debate. However, discussion of victims’ status at the acjhr-icls has been neglected. Victims’ status as participants and reparation claimants, as provided for in the acjhr Statute, is critically analysed. There are important gaps and limitations, especially concerning the victim participant status, and implementation challenges, particularly regarding the reparation claimant status. Recommendations to address normative problems and face future challenges are provided. The amended acjhr-icls Statute is comparatively tested against inter alia the legal framework and practice of the International Criminal Court (icc). The icc Statute is relevant because the acjhr Statute provisions on victims largely borrow from it. Additionally, despite some deficits, the icc Statute and practice arguably constitute guiding standards to tackle complex victim-related issues at international/hybrid criminal tribunals (ihcts).

In: International Criminal Law Review

Abstract

Although the UN-Security Council established the International Criminal Tribunals for the former Yugoslavia and Rwanda, UN-international criminal tribunals were not replicated. The UN instead directly participated in creating hcts such as the Special Court for Sierra Leone, the Extraordinary Chambers in the Courts of Cambodia, and the Special Tribunal for Lebanon. Thus, this article seeks to determine whether UN-backed hcts constitute viable options in international criminal justice. These tribunals may be viable options if they are adequately implemented. Particularly when compared to UN-international criminal tribunals, reasons for their viability include their closer proximity to or larger impact on national societies, less costly work, shorter proceedings, and flexible mandates adapted to each context. Nevertheless, their viability depends on whether they can handle challenges concerning coordination between their international and national components, funding limitations, security issues, relationship with international criminal tribunals (especially the International Criminal Court), and relationship with national institutions.

In: International Criminal Law Review

Peruvian courts convicted those most responsible for acts that constitute or amount to international crimes committed during Peru’s internal conflict (1980–2000), namely, ex-leaders of the terrorist organisation Shining Path-Peruvian Communist Party and ex-senior state officials, including ex-President Alberto Fujimori. The present article seeks to identify, systematise and discuss the sentencing factors applied in this case-law. The analysis is also conducted comparatively vis-à-vis the law and practice of the International Criminal Court (icc). Sentencing factors in the examined Peruvian law and practice may be categorised into two groups: crime/culpability-related factors and offender’s personal circumstances-related factors. The article concludes that Peruvian sentencing law and practice are generally similar to icc sources.

In: International Criminal Law Review

Abstract

In the last decade, the ECCC has ordered reparations for victims of the Khmer Rouge’s mass atrocities committed in Cambodia during the 1970s. Various scholars have examined those reparations ordered by the ECCC. Yet, this is the first academic piece to assess the ECCC’s reparation modalities under the UN Reparation Principles, which contain key standards on reparations for victims of atrocities. Overall, the ECCC has ordered important rehabilitation, satisfaction and guarantees of non-repetition measures to redress victims’ harm. This is a meaningful current development with regard to reparations for victims of atrocities. However, the ECCC’s reparation law and practice exhibits some important deficits under the UN Reparation Principles. At the ECCC, restitution and compensation are excluded and the range of guarantees of non-repetition has been limited. Nonetheless, these deficits must be considered within the ECCC’s mandate as an internationalised criminal court.

In: The Law & Practice of International Courts and Tribunals

Abstract

Within their different mandates, the ICJ and the ICC have decided on compensation for mass atrocities, including the same factual scenarios and related dual state/individual responsibility. However, no publication has examined these developments jointly and comparatively. Thus, this article seeks to determine how both courts are and should be developing compensation jurisprudence on mass atrocity cases. This article suggests that these two courts should construe a coherent, principle-based, and human rights-oriented international law of compensation for mass atrocities. Despite the differences in the compensation law and practice of the ICJ and the ICC, there are common elements such as the violation of an international obligation (wrongful act/international crime), damages, and the causal link between them. There are also some similarities concerning compensation goals, proof matters, and damage valuation. Both courts can and should conduct an adapted use of each other’s jurisprudence, considering their different mandates rather than doing so mechanically.

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In: The Law & Practice of International Courts and Tribunals

Two important African criminal justice initiatives, namely, the Extraordinary African Chambers (eac) and the International Criminal Law Section of the African Court of Justice and Human and Peoples’ Rights (acjhr-icls), illustrate the trend whereby victims can claim and receive reparations at international/hybrid criminal tribunals (icts). The International Criminal Court (icc) started this trend. This article will examine whether the eac and acjhr-icls can contribute to victims’ status as reparations claimants on substantive, procedural and institutional levels. The eac-Statute as applied in Habré and the acjhr-Statute constitute the primary sources of analysis as complemented by inter alia the law and/or practice of the icc, Extraordinary Chambers in the Courts of Cambodia (eccc) and the African Court on Human and Peoples’ Rights (ACtHPR). This article generally finds that the realisation of victims’ right to reparations at the eac and acjhr-icls depends on how normative and implementation deficits and challenges are handled.

In: Nordic Journal of International Law

Among international criminal tribunals (‘icts’), the International Criminal Court (‘icc’) for the first time introduced victim participation and reparations for victims. Against potential African withdrawals from the icc Statute, this article seeks to demonstrate the need to retain membership of the icc under victim-oriented considerations. Despite its deficits and limitations, the icc is arguably an important judicial forum for victims of mass atrocities committed in Africa for three arguments. First, human rights are invoked as a standard to examine the legitimacy of the decisions of the icc, African Union (‘au’), and African states. Second, international and African regional human rights law on victim rights binds African states. Third, since au regional criminal justice initiatives present important deficits and limitations in terms of victim rights, they are unfit to replace the icc.

In: International Organizations Law Review

Abstract

The Peruvian Communist Party/Shining Path or Sendero Luminoso (pcp-sl) and the Tupac Amaru Revolutionary Movement (mrta) committed rape and other sexual violence atrocities against women/girls and executions of lgbti+ persons during Peru’s non-international armed conflict (niac) (1980–2000). This article analyses sexual and gender-based violence (sgbv) perpetrated by these non-State armed groups (nsag s) against women/girls and lgbti+ persons under international humanitarian law (ihl) binding nsag s, complemented with a rebel governance approach (including female membership in these groups). This case-study can illustrate whether nsag s fulfil ihl obligations, also identifying inconsistencies between their doctrines and actions. After examining gender-related issues concerning the pcp-sl/mrta and their sgbv crimes against women/girls and lgbti+ persons, this article applies an analytical framework consisting of a gender-focused rebel governance approach and, mainly, ihl to sgbv perpetrated by the pcp-sl/mrta. ihl analysis involves: ihl bindingness over nsag s; prohibition of sgbv binding nsag s; and the nsag s’ (emerging) obligation to redress.

In: Journal of International Humanitarian Legal Studies

Abstract

The icc represents a legal laboratory that is still consolidating itself, with multiple unclarities in evidence and procedural law requiring resolution through jurisprudence. Our paper draws on interaction analysis to unpack this process, focusing on the jurisprudential construction of ‘dual status’ victim participant testimony. To elucidate how this evidentiary/procedural element is locally negotiated, we examine an excerpt from the Ongwen hearing transcripts, in which the defense objects against the testimony by a dual status witness called by the victim participants’ legal representative. The analysis traces how the defense counsel’s objection is anchored in a trajectory of prior decisions, and demonstrates that the implementation of the criteria drawn from these decisions is mediated by deep-rooted common-sense assumptions about the ‘ownership’ of testimony. These unspoken assumptions open up a discursive space in which trial actors can discuss the interactional quality of testimony, which adds an element of contingency to the final decision.

In: International Criminal Law Review