No longer just a victim: the impact of victim participation on trial proceedings at the International Criminal Court

The Rome Statute of the International Criminal Court (ICC) adopted an innovative participatory role for victims hailed as a major step towards recognising the rights of victims in international criminal proceedings. However, it is unclear whether direct participation has resulted in a more productive role for victims. This article discusses the goals of trial, focusing on the victims’ interests and the interests of the icc; the statutory and jurisprudential rules pertaining to victims’ participation at the Court; and the testimony of witnesses questioned by the victims’ representa- tives in the Lubanga and Katanga trials. The article concludes that the victims’ representatives in Lubanga and Katanga achieved some of the goals of trial but had a more limited impact on others. It also warns that the icc needs to continue to protect the rights of the victims and ensure that it does not improperly limit their participation

Right or duty? Is presence at trial a right or a duty in international criminal law?

International criminal law has long recognised the right of the accused to be present at trial as part of his or her right to a fair trial. However, modern international criminal courts and tribunals have recently found that the accused also has a duty to be present at trial. Do both a right to be present and a duty to be present exist and, if so, are they compatible under international criminal law? To answer these questions this article will first identify and examine the differences between a right and a duty. Next, it will consider the relevant international case law and how the courts and tribunals have characterised the presence of the accused. Finally, it will also consider the purposes underlying both the right and the pur- ported duty to be present. The article concludes that international criminal law currently recognises both a right and a duty to be present on the part of the accused although one may be incompatible with the other. It also warns that the application of the duty must not be allowed to subsume the accused’s exercise of the right, and that the enforcement of the duty must be done with due care for the accused’s right to a fair trial

The right to be present at trial in international criminal law

International criminal law considers the accused’s right to be present at trial to be a key component of his or her right to a fair trial at international and internationalised criminal courts and tribunals. The central research question this thesis explores is: what does the accused’s right to be present at trial mean in international criminal law and are the accused at international and internationalised criminal courts and tribunals receiving the benefits of its protection? This thesis answers that question in eight substantive chapters examining a variety of issues relating to the right to be present at trial. In answering the research question this thesis makes four different contributions to knowledge. First, it brings together the rules and practices of all of the international and internationalised criminal courts and tribunals and provides analysis about how each one treats the right to be present at trial. Second, it challenges existing assumptions about how different courts and tribunals protect the right to be present at trial and show that even those courts and tribunals that are thought to emphasise the right also allow trial to continue in the accused’s absence under some circumstances. Third, it takes a more nuanced approach to trial absences by breaking absence into four categories and examining how the differences in the type of absence may affect the right to be present. Finally, it considers the procedures of the international and internationalised criminal courts and tribunals established since the introduction of the Special Tribunal for Lebanon’s Statute and finds that they generally take a more flexible approach to the accused’s right to be present. This thesis concludes that international criminal law provides the accused with a qualified right to be present at trial. The right confers on the accused the choice to attend trial and is coupled with a duty imposed on the court or tribunal attempting to conduct the trial whereby it cannot prevent the accused from attending trial if he or she so desires. The right to be present can be voluntarily waived by the accused if he or she has received notice sufficient to make an informed decision about whether he or she wants to appear. This approach creates a balance between respecting the accused’s right to be present while also allowing trial to continue if the accused does not wish to participate

Rights in conflict: the clash between abolishing the death penalty and delivering justice to the victims

The abolition of the death penalty and delivering justice to the victims of atrocity crimes are two dominant international human rights issues. Despite the prominence of both issues, the international human rights community views the abolition of the death penalty as being the more important objective. This is evidenced by the preclusion of the use of the death penalty as a punishment at international and internationalized criminal courts and tribunals despite the fact that some victims have indicated that they can only experience justice following the execution of the perpetrators of the crimes committed against them. This article addresses whether these two goals are in conflict, whether that conflict is intractable and whether it is appropriate to prioritize one objective over the other. Finally, it concludes that these two goals are incompatible, and that the victim’s right to justice must give way in favour of the right to life

Re-examining corporate liability at the International Criminal Court through the lens of the article 15 communication against Chiquita Brands International

To date, the International Criminal Court (‘the Court’) has focused its attention on prosecuting governmental and military leaders. This article uses the recent Communication submitted to the Court seeking the extension of the Prosecutor’s Office’s ongoing preliminary investigation in Colombia as a framework to explore whether the Court should expand its focus to include atrocity crimes committed by corporations and their employees. The article specifically addresses the questions raised in the Communication regarding Chiquita Brands International, Inc.’s financial involvement with paramilitary forces in Colombia between 2002 and 2004. The article also examines the current arguments in favour of extending the Court’s criminal liability to include corporations and highlights the shortcomings of those sentiments above and beyond the fact that the Statute explicitly excludes such liability. It also discusses the modes of individual liability contained in Article 25(3)(c) and (d), and analyses whether employees of Chiquita could be exposed to prosecution under either provision. The article concludes that the Court should make greater efforts to investigate and prosecute corporate actors for their involvement in human rights abuses. However, it cautions that the facts as they relate to Chiquita suggest that such efforts should not be concentrated on this case as it is unlikely that an investigation into this case will result in a successful prosecution

Shifting priorities: are attitudes changing at the international criminal court about trials in absentia?

A recent decision by the International Criminal Court’s Appeals Chamber in the Gbagbo and Blé Goudé case raised the possibility of a shift away from the long-standing practice of only holding trial in the presence of the accused. The final paragraphs of the 28 May 2020 decision asserts that any future trial proceedings in the Gbagbo et al. case could be held in the absence of the defendants should Mr Gbagbo and Mr Blé Goudé be released from custody and then later fail to appear for trial. This article examines the Appeals Chamber’s decision in light of the Court’s Statute, existing jurisprudence at the icc and within the larger context of international criminal law. It concludes that the Appeals Chamber’s decision fails to properly understand the right to be present at trial as it exists in the Rome Statute nor does it comply with any identified general principle of law

Human rights enforcement at the borders: International Criminal Court jurisdiction over the Rohingya situation

In September 2018, Pre-Trial Chamber I of the International Criminal Court reached a decision that could profoundly impact accountability for transnational human rights violations. In its decision, the Pre-Trial Chamber found that it has jurisdiction over the crime against humanity of deportation as it relates to the government of Myanmar’s treatment of the Rohingya ethnic group. This decision is remarkable for the fact that Myanmar is not a state party to the Rome Statute and therefore not directly subject to the International Criminal Court’s Statute. The Court circumvented this problem by ruling that a portion of the crime was committed in Bangladesh permitting the exercise jurisdiction in this matter. This article endeavours to accomplish two goals. First, it analyses the Pre-Trial Chamber’s ruling to determine whether it complies with the Rome Statute and international law. Second, it will discuss the ramifications of the decision and consider whether it can act as a partial solution for addressing transnational human rights violations being committed in the territory of non-states parties. The article concludes that the decision itself is open to question, creating a danger that it will be susceptible to challenge. The International Criminal Court needs to ensure that these sorts of controversial decisions have a firm legal foundation to better deliver justice to the victims of atrocity crimes and to protect the Court from criticism that it is failing victims

Corrigendum to Comparing Structure-Property Evolution for PM-HIP and Forged Alloy 625 Irradiated with Neutrons to 1dpa [Mater. Sci. Eng. A (2022) 144058]

The authors regret that after publication, they discovered that the dislocation loop number density was undercounted by a factor of 100 for both the PM-HIP and forged specimens. While this does not change the original major conclusions, this necessitates a change in the results presentation (Sections 3.2 and 4.1) and calculated hardening (Table 3, Fig. 5). Corrections to these affected sections are provided in this corrigendum