Abstract The International Court of Justice (ICJ) has held that in assessing state responsibility for the crime of genocide, the dolus specialis of genocide — that is, an intent to destroy, in whole or in part, a national, ethnical, racial or religious group, and to do so as such — can be inferred from a pattern of conduct only if it can be shown to be the only reasonable inference. This test, drawn from criminal law, is an onerous one. Parties, advocates, and intervenors in current genocide cases before the ICJ have offered various interpretations of this test to make it easier to satisfy. These arguments will likely fail, however, and the test will remain difficult. In the end, the fight will focus less on legal interpretation and more on the facts, and whether they show conduct that clearly departs from alternative explanations, including overtly illegal ones.

A central aim of international criminal tribunals since Nuremberg has been to prosecute those most responsible, the 'big fish', leaving smaller cases to national jurisdictions. The authors, who have both academic backgrounds as well as experience prosecuting international crimes in both international and domestic courts, argue that the International Criminal Court (ICC) should change course and expand its focus to include more 'little fish cases', bringing more cases overall and initiating them more quickly. Particular features of the ICC, namely its global reach and its ambition to promote national prosecutions, compel this change in strategy. For normative, strategic, and practical reasons, the ICC should bring smaller fish cases to enhance its credibility, functioning, and legitimacy, and to spur prosecutions by national authorities.

For a time, the creation of international criminal justice institutions seemed to follow a predictable and linear path. Following a long period of inactivity after the post-World War II trials, there was a burst of creation starting in 1993 with the establishment of the International Criminal Tribunal for the former Yugoslavia (ICTY), followed by the establishment of a series of ad hoc international or hybrid tribunals for Rwanda, Sierra Leone, and Cambodia.1 The culmination of this creative period was the International Criminal Court (ICC), the first permanent international criminal court, established by the Rome Statute in 1998 and ratified by the required 60 states that would allow the court to come into existence by 2002. The ICC seemed to offer a simple and comprehensive solution to the expensive and impractical problem of trying to establish an ad hoc tribunal following each new atrocity. It obligated states to investigate and...

There is a hopeful story to be told with respect to the activation of the crime of aggression at the International Criminal Court (ICC). Activation will either add to deterrence, or at worst will be harmlessly symbolic. But what if the premise is wrong? What if there is a risk that activation of the crime of aggression will undermine rather than advance deterrence? It matters not that the crime is activated, but how it is activated — the narrow definitional and jurisdictional scope of the crime as it has been enacted at the ICC, may undermine the deterrence effect of the Court by further encouraging cynicism about what the Court can and cannot do. Recognizing this risk both enriches the debate and raises larger questions about strategies for building and expanding international criminal law and its institutions.

A central aim of international criminal tribunals since Nuremberg has been to prosecute those most responsible, the ‘big fish’, leaving smaller cases to national jurisdictions. The authors, who have both academic backgrounds as well as experience prosecuting international crimes in both international and domestic courts, argue that the International Criminal Court (ICC) should change course and expand its focus to include more ‘little fish cases’, bringing more cases overall and initiating them more quickly. Particular features of the ICC, namely its global reach and its ambition to promote national prosecutions, compel this change in strategy. For normative, strategic, and practical reasons, the ICC should bring smaller fish cases to enhance its credibility, functioning, and legitimacy, and to spur prosecutions by national authorities.

Alex Whiting thoroughly analyzes the submissions by the ICC Office of the Prosecutor and statements made by the Prosecution. He explains the different approaches of the first and the second Prosecutor: The first embraced a theory of ‘disruption and specific deterrence’, seeking to intervene in real time to stop ongoing crimes with the Court being a force for diplomacy and peace. The second Prosecutor, on the other hand, focuses on the judicial tasks of the Court, chooses fewer cases, acts slowly and carefully. This way, the Court moved towards an expressive theory of punishment, investigations and cases are a way of expressing, shaping and enforcing norms. In the end, Whiting concludes that at the ICC’s Office of the Prosecutor theory does not dictate practice – it is the other way round: The Office’s strategy is reactive to and constrained by the dependency on state cooperation and the limits of the ICC’s authority. Only within those constraints, can theories of punishment play a role: ‘robust theories of punishment are a luxory of actors with power’.

The Crime of Aggression: A Commentary, Volumes 1 and 2. By Claus Kress and Stefan Barriga (eds.). Cambridge, United Kingdom: Cambridge University Press, 2016. Pp. xli, 1583. Index. - Volume 113 Issue 2

On 21 December 2016, the United Nations General Assembly took a historic step in establishing a Mechanism to investigate and preserve evidence of international crimes in Syria, the first time the Assembly has established such a body. This essay assesses the General Assembly's legal authority to create such an organ, and situates the move in the larger story of the international criminal justice project. The establishment of the Mechanism at the same time highlights the political fragility of the justice project - the Mechanism's creation was necessitated by the political stalemate blocking accountability for crimes in Syria - and underscores the creativity and ingenuity in the development of institutions, cases and the law that have marked the international criminal law movement over the last decades.

This Chapter provides a prosecutorial perspective on evidence and disclosure. It proceeds in two parts: the first part sketches out the disclosure regime at the ICC; the second part identifies the challenges that the prosecution faces in managing disclosure. The contribution examines the approaches adopted by Pre-Trial and Trial Chambers and their impact on prosecutorial strategy and practice. It deals with constraints on disclosure (e.g. provider confidentiality, and witness protection) and puts the difficulties encountered in the first cases (e.g. Lubanga) into perspective. Finally, it reflects on key aspects of the emerging evidentiary regime, such as the role of documentary evidence, witness examination and testimony, and judicial questioning. The contribution argues that disclosure is not a topic that will ‘go away’ or be solved, but will instead be a recurring issue at the tribunals, in particular, in cases involving large amounts of material.

The International Criminal Court (ICC) is surrounded by controversies and criticisms. This article highlights some patterns in the arguments, showing that many plausible criticisms reflect inescapable dyads. For any position that Court could take, one or more powerful criticisms can inevitably be advanced. The tension can be obscured because shared terms are often recruited for opposite meanings. Awareness of these patterns can (i) provide a framework to better situate arguments, (ii) reveal the deeper complexity of the problems, and (iii) help us to evaluate and improve upon the arguments. Awareness of dyadic structures can lead to a debate that is more generous, as we acknowledge the difficulty and uncertainty of choosing among flawed options, yet also more rigorous, as we attempt to articulate and improve upon our frameworks of evaluation. The goal of this article is to encourage a better conversation that can generate better insights.

The establishment of the International Criminal Court (ICC) gave rise to the first permanent Office of the Prosecutor (OTP), with independent powers of investigation and prosecution. Elected in 2003 for a nine-year term as the ICC's first Prosecutor, Luis Moreno Ocampo established policies and practices for when and how to investigate, when to pursue prosecution, and how to obtain the cooperation of sovereign nations. He laid a foundation for the OTP's involvement with the United Nations Security Council, state parties, nongovernmental organizations, victims, the accused, witnesses, and the media. This volume of essays presents the first sustained examination of this unique office and offers a rare look into international justice. The contributors, ranging from legal scholars to practitioners of international law, explore the spectrum of options available to the OTP, the particular choices Moreno Ocampo made, and issues ripe for consideration as his successor, Fatou B. Bensouda, assumes her duties. The beginning of Bensouda's term thus offers the perfect opportunity to examine the first Prosecutor's singular efforts to strengthen international justice, in all its facets.

I INTRODUCTION The authors in this issue seek to sketch and analyze the practice of various functions within the international criminal-prosecution process, in particular the functions of the International Criminal Court (ICC). As part of this project, I focus on the ICC's practice of investigation. I identify the challenges that ICC investigations face, and then articulate what can realistically be expected of these investigations, given the identified challenges. Because of the types of cases investigated by the ICC's Office of the Prosecutor (OTP), the young age of the court, and the OTP's limited investigative powers, the ICC has no uniform investigative approach across cases. Although certain specific investigative practices exist in all cases--for example, those dictated by the Rome Statute of the International Criminal Court (1) (Rome Statute) and good investigative practice (such as the obligation to investigate incriminating and exonerating information equally and the obligation to protect witnesses)--each investigation is largely shaped by the constraints and opportunities peculiar to the situation at hand. Thus, ICC investigations are generally reactive, highly dynamic, and unpredictable. Over time, evidence can become available or can disappear depending on many factors, including political circumstances and issues of security. Despite the general recognition of the investigative challenges and realities faced by the OTP, a different conception of the OTP's investigative practice--one that presumes more control over the investigation itself--often creeps into judicial decision-making and outside commentary. This is particularly apparent in the long, ongoing debate about when the OTP should be required to complete its investigation, with some judges and commentators insisting that, as a matter of law, investigations must be completed even before the pre-trial chamber holds the confirmation hearing--the intermediate stage between arrest or summons and the trial. (2) Nothing in the Rome Statute or the ICC's Rules of Procedure and Evidence (RPE) (3) compels this result. In fact, as has been pointed out by some dissenting judges, the opposite is true: The Rome Statute and RPE appear not only to allow continued investigation after the confirmation hearing, but to require it if there exist further opportunities to obtain evidence. (4) Rather, the impetus for some judges insisting that the prosecution complete its investigation appears to be a concern that the prosecution is not bringing strong enough cases, or that it is bringing cases with undeveloped evidence, with the hope of conducting substantial investigation as proceedings unfold. (5) These concerns are to some extent valid. There is no question that there is room for improvement in the OTP's investigations, and that the OTP has not to date had the successes it had hoped for or expected. (6) And there is also no question that the investigative challenges faced by the OTP cannot be a reason to lower the standard of proof or undo essential procedural protections for the defense. Although the OTP must conduct focused investigations because of the limits on its tools and resources, it also has to offer sufficient evidence to prove its cases. Otherwise put, although the OTP may never be able to conduct investigations that are as comprehensive as what can be done in a national jurisdiction, it must do enough to meet the reasonable-doubt standard (or else not bring charges). And further, although the OTP must be allowed to continue investigating its case as long as there are opportunities to do so, the defense must be made aware of the allegations against it sufficiently before trial to allow it to investigate and prepare. At the same time, the rigid and formalistic insistence that the prosecution complete its investigation before the confirmation hearing is flawed in two respects. First, it is at odds with the Rome Statute and the RPE. …

The raison d’être of the present paper is to identify, from the point of view primarily of practitioners, the principal problems of effectiveness affecting the work of the Court with a view to offer practical and realistic solutions intended to improve upon the quality, cost and expeditiousness of ICC proceedings. The following recommendations are made in order to enhance the effectiveness of the Court while, at the same time, preserving the fairness of the proceedings.

Abstract This chapter discusses the rules of procedure and evidence at the ICTY which have developed through experimentation and experience. By design or accident, the rules at the beginning of the ICTY left many questions unanswered and allowed for easy amendment. Over the years, judges have repeatedly amended the rules to reflect lessons learned along the way and to develop a procedure designed to address the particular challenges facing the ICTY.

Since shortly after the implementation of the Sentencing Guidelines, the Department of Justice has sought to constrain the discretion of prosecutors at the charging, plea-bargain and sentencing phases in order to ensure the faithful application of the Guidelines. The latest manifestation of this policy is the so-called "Ashcroft Memorandum," which requires prosecutors to charge and pursue the most serious, readily provable offense and advocate a Guideline sentence in nearly all cases. Although this policy arguably made sense when the Guidelines were mandatory, it makes less sense now that they are advisory. This article argues that the Department should revisit this policy and return some limited discretion to line prosecutors, particularly at sentencing. Under an advisory Guidelines regime, the Department's current policy of strict adherence to the Guidelines takes prosecutors out of the sentencing process, perpetuates some of the failings of the mandatory Guidelines approach, and prevents line prosecutors from participating in the formulation of sentencing policy. If the Department departs from its current approach, however, the challenge is to determine how much discretion to grant prosecutors. This article suggests various substantive and procedural mechanisms to cabin the discretion exercised by line prosecutors and to ensure uniformity and transparency in sentencing.