Abstract This article analyses how and when victims mattered at the Extraordinary Chambers in the Courts of Cambodia (ECCC, or the Court). While the primary goal of an international criminal trial is to determine whether the defendant is guilty or not guilty of the crimes alleged, rhetorically, victims tend to be at the centre of international criminal justice. It is in their name that justice must be done. Yet, as scholars and practitioners have long demonstrated, the connection between the rhetorical figure and persons impacted by the crimes is far from self-evident. In this article, we take the ending of the ECCC’s judicial mandate as an opportunity to trace when and how victims mattered at the Court. We demonstrate how victims have neither been ‘mere’ rhetorical figures nor consistent participants but rather mattered at particular moments in ways that were influenced by a variety of Court actors pursuing different agendas. The contributions of this article are twofold: our examination of one institution from inception to closure to residual mechanism provides a rare long-term overview of changes across time, and our demonstration of the ebbs and flows rejects claims of uniform either/or approaches.
Abstract International law literature has extensively analysed war crimes committed through autonomous weapon systems (AWSs), focusing primarily on mens rea issues and the challenges posed by the potential unpredictability and uncontrollability of such weapons. However, less attention has been given to the problem of causation in these cases. This article aims to clarify the relevance of causation as a crucial requirement in cases of war crimes of harm under Article 8 of the Rome Statute, committed via artificial intelligence (AI) weapons. In crimes of harm, causation links the actor’s conduct to the resulting harm. Both factual (but-for) causation and legal causation must be established before that harm can be objectively attributed to an accused person under recognized forms of individual criminal responsibility. Thus, addressing causation is paramount to avoiding miscarriages of justice, to properly allocate liability for the crimes in question, and to promote accountability for those who authorize, deploy, or otherwise control military operations. This article maintains that any assessment of causation must rest on rational and verifiable criteria — reliable scientific covering laws or, at minimum, well-founded maxims of experience — to ensure that legal judgments on liability are both rigorous and transparent.
Abstract This article examines the influence of international humanitarian law (IHL) on the inference of genocidal intent (dolus specialis) in situations of armed conflict. While international jurisprudence has firmly established that genocidal intent may be inferred from a pattern of conduct, the relationship between such an inference and compliance with, or violation of, IHL has remained insufficiently explored. Drawing primarily on the interpretative positions advanced by states parties in their interventions in the two pending Genocide Convention cases before the International Court of Justice (The Gambia v. Myanmar and South Africa v. Israel), the article analyses how states understand the interaction between IHL and the mental element of genocide. It argues, first, that the existence of an armed conflict and the pursuit of military objectives do not preclude the co-existence of genocidal intent. Secondly, serious violations of IHL may carry significant evidentiary weight in revealing a genocidal pattern of conduct. Thirdly, and more fundamentally, the inference of genocidal intent is not legally dependent on establishing an IHL violation: acts compliant with IHL may also contribute to demonstrating genocidal intent when assessed holistically. The relationship between IHL and genocidal intent is thus one of contextual relevance rather than legal subordination.
Abstract Recent debates on how to address ecocide within the framework of the International Criminal Court (ICC) have converged around two strategies: an interpretive approach that seeks to accommodate ecocide within existing provisions of the ICC Statute, and a legislative approach that advocates amending the Statute to include ecocide as a separate crime. This article argues that both face inherent structural limitations, namely the ICC’s anthropocentric orientation, ill-adapted mens rea requirements, and exclusion of corporate criminal responsibility. In response, the article proposes a dual-track approach. The first track advances the autonomous criminalization of ecocide at the domestic level, which proceeds without awaiting international consensus and offers a direct mechanism for prosecuting corporate actors. The second track establishes a dedicated Ecocide Convention grounded in an ecocentric definition of the crime, which harmonizes the substantive standards of individual criminal responsibility across states parties and engages state responsibility. The two tracks are mutually reinforcing but operate at distinct levels and serve analytically distinct functions, together placing the prevention and punishment of ecocide on a firmer and more enforceable legal foundation than the ICC framework can provide.
The international community, while being mysterious and elusive, is playing an increasingly significant role in modern-day international law. The International Criminal Court (ICC) took an innovative step to formally recognize the international community as a victim of crimes committed against cultural heritage, yet many crucial conceptual questions remain unexplained by the Court and underdiscussed in scholarship. This article critically examines the idea of the international community, per se, being a victim under the ICC system from different angles. First, this article briefly recalls the limited existing discussion on the international community's victimhood and a selected set of discussions on the diversification of victimhood phenomena to underline the special difficulties in the international community's key features. Secondly, this article explores the legal basis of the international community's victimhood, including its (in)compatibility with the statutory definition of victim in the ICC context and the justifying rationale behind it; it further examines the limited potential such victimhood could realistically have in ICC proceedings, especially in reparations, and explores its autonomous contribution to justice. Thirdly, this article pays special attention to the question of 'representation' of the international community, which is a necessary precondition to the realization of such victimhood in the courtroom. While the ICC contends that the international community 'is best represented by UNESCO', this article argues that such 'representation' is not self-evident, entails inherent difficulties in its assessment, and risks placing overly heavy reliance on an external 'representing' body. This article theorizes the difficulties in 'realizing' the international community's victim status as mainly the fundamental mismatch between its conceptual nature and the premise of the design of the ICC regime on victims. It calls for greater caution, as well as rigour, in the recognition of the international community's victimhood in future practice.
Abstract This article begins with the confirmation of charges decisions undertaken by the International Criminal Court in the Kony case. These proceedings struggled with the reality of in absentia. This article addresses the high absentee rate among individuals against whom the International Criminal Court (ICC) has issued arrest warrants and notes the stark presence of absence in the ICC’s work as well as within the enforcement of international criminal law at large. This article suggests that international criminal lawyers lean into the prevalence of absence and reboot predominant collective thinking. One path forward is to truly and warmly embrace transitional justice mechanisms which are not too tightly wedded to formal liberal legalism. These include people’s tribunals, mock trials, artistic commemorations, holograms, theatre, film, truth commissions, and indigenous justice mechanisms. International justice advocates might break new ground by challenging their own abstemiousness when it comes to radical innovation.
Abstract The United States’ unilateral sanctions against the International Criminal Court (ICC) pose a significant threat to the international criminal justice architecture, sparking complex global reactions. This article examines the multifaceted responses to such sanctions across Asia by moving beyond a monolithic ‘Asian perspective’ and categorizing states into four groups based on their dual stances towards both the ICC and the unilateral coercive measures. With a specific focus on Asian non-states parties to the ICC’s Rome Statute, the article analyses how their shared wariness with the United States over expansive international criminal jurisdiction coexists with profound normative, ideological, and governance divergences, dynamics that lead most to view these sanctions against the ICC not as a replicable model but as both a cautionary signal and an impetus for institutional reform. Looking ahead, this article argues that, amid the dilemma of resisting both judicial and coercive overreach, the future of Asia’s engagement with the ICC will be shaped by the extent to which the Court’s member states uphold its independence while advancing reforms responsive to legitimate sovereignty concerns. Through an Asian lens, this study contributes to wider scholarly discussions on the resilience and developmental trajectory of international criminal justice.
Abstract The role of emotions in the practice of international criminal law is now the subject of increasing examination and, in particular, the shift away from the historical understanding that the practice of law should be guided by reason and not emotion. While previous studies have examined the emotional toll of this area of practice on international criminal lawyers as a whole, this article aims to start to capture and assess the psychological impact of defending accused before international criminal courts. Beginning with an overview of the emotional dynamics of an international criminal trial, it identifies those aspects of international practice that are specific to the work of the defence, before discussing their emotional toll on the lawyers who defend, rather than prosecute or adjudicate. Drawing on discussions with defence team members, this article also offers some initial reflections on preserving the well-being of defence lawyers and safeguarding their contribution to the shared goal of meaningful accountability for the victims of mass atrocities through fair trials.
This article explores how reframing industrial animal exploitation through the conceptual lens of international criminal law (ICL) can shed light on the structural violence underpinning human-animal relations. Approached from the perspective of crimes against humanity, such practices invite a critical re-examination of the notion of 'humanity' itself, insofar as the systematic subjugation of animals may, in certain contexts, call into question the ethical foundations of human dignity. While acknowledging the conceptual and moral sensitivities involved, the genocide framework is examined as a cautiously bounded analytical tool for illuminating specific dimensions of organized and targeted destruction. The regime of war crimes, although highlighting the acute vulnerability of animals in situations of armed conflict, remains limited in its applicability to peacetime systems of exploitation. In contrast, the emerging concept of ecocide offers a broader avenue for rethinking environmental harm, extending concern to the well-being of sentient beings embedded within ecological systems. Nevertheless, this article contends that existing international crime categories remain insufficient to capture the systemic and institutionalized violence of industrial farming fully, and it ultimately calls for serious consideration of the recognition of distinct international crimes against animality.
Abstract More than 15 years after their first use in the Lubanga case, video-link testimonies (VLT) have become increasingly prevalent at the International Criminal Court (ICC). This mode of testimony has enabled hundreds of witnesses to testify remotely, thereby overcoming the logistical, financial, and temporal hurdles of transporting them from distant locations to the ICC. Despite their benefits, the Court’s growing reliance on VLT has raised concerns for the rights of the accused (hereafter ‘fair trial rights’), particularly the rights to cross-examination and a fair assessment of evidence. This article proposes to examine this tension. It contends that while VLT are not inherently incompatible with fair trial rights, their widespread and indiscriminate use, especially in relation to key witnesses, is problematic and potentially detrimental to fair trial rights. It highlights how the current practice hinders the defence’s ability to effectively challenge the use of VLT by improperly shifting the burden onto the accused to demonstrate a risk of prejudice, thereby weakening safeguards for cross-examination and fair assessment of evidence at critical junctures. This article concludes by emphasizing the need for a cautious approach, one that balances efficiency and the benefits of VLT with the protection of the accused’s fundamental rights.
Abstract Under the current rules of international criminal law, for an accused to be found guilty of crimes against humanity, the prosecution must prove multiple contextual elements. While each of these elements have their own interpretive challenges, there is one element that has been quite controversial and subject to inconsistent application: namely, the policy element. The policy element serves a rational purpose; it is intended to prevent crime surges and the acts of lone individuals from being encapsulated under the umbrella of crimes against humanity. However, the policy element, as it currently stands, also creates a gap in the law that prevents the prosecution of widespread prohibited acts committed against a civilian population spontaneously and without encouragement or oversight by a state or organization. This article will assess potential solutions to fill this gap, and will ultimately propose that, to guarantee the protection of humanity from such atrocities, the ‘attack’ element of crimes against humanity should be amended to require either (a) the policy element or (b) a new element, herein referred to as the catalyst element.
Abstract Virtually unknown to scholars of international law today, the 1927 Shvartsbard trial served as a crucial early stage in Raphael Lemkin’s development of the legal concept of genocide — a connection overlooked by scholars who read Lemkin backwards through Holocaust teleology, ignoring how antisemitism and Jewish rights–claims shaped his earlier thinking. This article reintroduces Lemkin’s coverage of the trial of the Jewish anarchist charged with killing Ukrainian leader Symon Petliura in Paris as revenge for pogroms. This episode challenges state-centric narratives of international law’s origins, revealing how diasporic minorities outside territorial-state protection were crucial agents in legal development. The case raises important questions: How does extra-legal violence interact with legal imagination? What role do emotions play in legal change? How did this episode shape Lemkin’s understanding of genocide’s ‘double life’ as moral taboo versus legal crime?
Abstract This article examines how the International Criminal Court (ICC) mediates the epistemic value of victims’ narratives. While victims are formally recognized through testimony or the ‘views and concerns’ mechanism, their accounts are filtered by prosecutorial discretion, evidentiary rules, representational practices, and judicial gatekeeping. Drawing on Miranda Fricker’s theory of testimonial injustice and Shannon Fyfe’s adaptation to international criminal justice, this article reframes the analysis from questions of access to questions of reception: who is treated as a credible knower, which narrative forms are privileged, and how courtroom hierarchies organize recognition. Empirically, the study is based on 17 semi-structured interviews with ICC professionals, mapping the institutional mechanisms that translate lived experiences into legally cognisable knowledge. Findings show that concise, individualized, fact-centred accounts are more readily incorporated, whereas collective, affective, or culturally framed narratives face structural constraints and are recognized only inconsistently across institutional contexts. This article concludes that the epistemic reception of victims’ narratives is vital to the legitimacy of international criminal justice and suggests both pragmatic reforms and avenues for future research, with a focus on involving victims themselves to strengthen this dimension of the ICC’s work.
Abstract In this article, the current US sanctions regime against prosecutors and judges of the International Criminal Court is placed in a historical context. The author analyses the history of the US relationship with the Court and explains the relevant statutory authority used by the current US President to impose the sanctions. The author then analyses the operational implications of the sanctions regime for the individuals affected and for the ICC, as well as the broader global consequences of this type of action levied by a powerful nation such as the USA against a prominent international institution like the ICC.
Abstract Economic sanctions are among the most powerful tools available to governments short of armed force. They are routinely deployed against kleptocrats, terrorist organizations, proliferators of weapons of mass destruction, and individuals responsible for grave human rights abuses. In February 2025, however, the USA deployed this instrument against a different category of actors: officials and affiliates of the International Criminal Court (ICC). Through Executive Order 14203, the USA established a sanctions regime targeting individuals involved in the Court’s investigative work. At the time of writing, 15 individuals and organizations have been designated under the order. Sanctions designed to isolate perpetrators of atrocity crimes have thus been turned against those tasked with investigating them. This article examines the unprecedented use of sanctions against an international judicial institution, situating the development within the broader trajectory of international adjudication since the Hague Peace Conferences. It revisits the earlier sanctions imposed in 2020, the litigation that successfully challenged those measures, and the legislative and political developments culminating in the current sanctions regime. The misuse of sanctions against international judicial actors threatens not only the functioning of the ICC but also the broader rule-of-law project that has sought for more than a century to replace impunity with accountability.
Abstract President Trump has imposed sanctions on the Chief Prosecutor of the International Criminal Court (ICC) Karim Khan and several judges of the Court, expressing his dissatisfaction with the Court’s investigation of the involvement of American citizens and nationals of US allies in international crimes. This initiative potentially constitutes a crime against the administration of justice under Duch criminal law and the ICC Statute. At the NATO summit in June 2025, Trump’s assault on the Court was entirely ignored. While it is obvious that political and legal impediments would have precluded criminal investigations against him, the Netherlands would have been perfectly entitled to deny President Trump access to Dutch territory. A less spectacular and provocative solution would have been the suggestion by the Dutch government, supported by other NATO members, to move the summit to another venue. The fact that these options were not even publicly discussed is remarkable and embarrassing.
