International Criminal Law Archives - Page 2 of 36

Response to Professor Heller’s Comment to My Post, ICC PROSECUTOR SUSPENSION: Process, Perception, and the Cost of Prolonged Uncertainty

I disapprove of what you say, but I will defend to the death your right to say it.

-Evelyn Beatrice Hall, under the pseudonym S. G. Tallentyre (widely misattributed to Voltaire)

One of the prerogatives of being the owner of a self-funded eponymous blog is that I get to decide what I want on it. However, as the saying goes, “With great power comes great responsibility.”¹ When it comes to the hundreds of comments to my posts, I believe I have only exercised my power of non-publication twice in the dozen years I have been hosting this blog. In both cases, I did so because I felt an attack on another commenter crossed a line from fair comment to nastiness. The most recent such withheld comment came in April of this year, and, ironically, it was directed at Professor Kevin Jon Heller. Even then, I reached out to the author and invited him to rewrite the comment but I never heard back. That said, I have never rejected a comment directed at me, no matter how needlessly ad hominem or vitriolic. Although I have, on a handful of occasions, exercised my editorial droits to remove some expletives.

What I do reserve unto myself, though, is the option to respond, which I now take the opportunity to do in response to Professor Heller’s comment to my recent post, ICC PROSECUTOR SUSPENSION: Process, Perception, and the Cost of Prolonged Uncertainty.² Continue reading “Response to Professor Heller’s Comment to My Post, ICC PROSECUTOR SUSPENSION: Process, Perception, and the Cost of Prolonged Uncertainty”

The modern attribution of this saying is to Stan Lee, in the first appearance of Spider-Man in 1962. [↩]
Professor Heller’s comment can be viewed in the sidebar to this post, or in the comment section at the end of the post to which it was appended. [↩]

REFLECTIONS ON MASS ATROCITIES, HISTORICAL MEMORY, AND THE ECCC LEGACY: Cambodia – Past, Present, Future — Part III

BEYOND CONVICTIONS: The ECCC’s Enduring Legacy in Cambodia

Memory is not only a repository of the past, but a work of reconstruction.

– Paul Ricoeur

If Part II explored the relationship between memory, law, history, and interpretation, Part III now turns to the institution through which many of those tensions ultimately found expression in Cambodia: The Extraordinary Chambers in the Courts of Cambodia (ECCC).

The questions explored earlier do not remain abstract for long. Debates about genocide, crimes against humanity, historical responsibility, collective memory, and the meaning of Democratic Kampuchea eventually become concrete. They arrive in courtrooms. Once there, they change form, becoming questions of evidence, procedure, witness testimony, prosecutorial discretion, judicial reasoning, and legal judgment.

At that point, the issue is no longer simply what happened. It becomes a question of who has the authority to describe what happened, which narratives gain institutional legitimacy, and how legal conclusions gradually become embedded in the historical record. Continue reading “REFLECTIONS ON MASS ATROCITIES, HISTORICAL MEMORY, AND THE ECCC LEGACY: Cambodia – Past, Present, Future — Part III”

ICC PROSECUTOR SUSPENSION: Process, Perception, and the Cost of Prolonged Uncertainty

What is not good for the swarm is not good for the bee.

– Marcus Aurelius

What the Bureau of the Assembly of States Parties (ASP) has done in the past day is, in procedural terms, relatively clear, even if the implications are anything but routine.

By qualified majority, the Bureau has decided to initiate disciplinary proceedings against Prosecutor Karim A. A. Khan KC of the International Criminal Court (ICC): it referred the matter to the ASP for final determination and suspended him from duty with immediate effect. It has also made clear that the suspension is not determinative of the outcome and that due process continues.

That much is straightforward. Continue reading “ICC PROSECUTOR SUSPENSION: Process, Perception, and the Cost of Prolonged Uncertainty “

REFLECTIONS ON MASS ATROCITIES, HISTORICAL MEMORY, AND THE ECCC LEGACY: Cambodia – Past, Present, Future – Part II

THE CRIME OF CRIMES: Law, Memory, And The Limits Of Genocide

No question is ever settled until it is settled right.

– Ella-Wheeler-Wilcox

Part I was about memory as lived experience. Part II is about memory as interpretation.

If Part I explored memory as something lived, inherited, and carried by individuals, Part II asks what happens when those memories enter institutions. Courts, tribunals, museums, textbooks, commissions, archives, and official narratives do not merely preserve memory. They organize it. They classify it. They assign categories and meanings to experiences that often resist easy definition. The transition from personal memory to institutional memory is therefore not merely a change of setting; it is a change in how the past is understood. Once that process begins, memory becomes structured, contested, and filtered through the categories available to the institutions interpreting it.

Nowhere is this process more evident than in Cambodia’s ongoing effort to understand Democratic Kampuchea. Continue reading “REFLECTIONS ON MASS ATROCITIES, HISTORICAL MEMORY, AND THE ECCC LEGACY: Cambodia – Past, Present, Future – Part II”

REFLECTIONS ON MASS ATROCITIES, HISTORICAL MEMORY, AND THE ECCC LEGACY: Cambodia – Past, Present, Future – Part I

CAMBODIA: An Ongoing Love Affair

The past is never dead. It’s not even past.

– William Faulkner

There are places that enter your life quietly.

And then there are places that take hold of you completely.

Cambodia belongs firmly to the second category.

My attachment to the country did not arrive all at once. It emerged gradually – through late afternoons along the Tonlé Sap as light settled over Phnom Penh in muted gold; through monsoon rain gathering over the Mekong before finally breaking against corrugated roofs; through the strange stillness of roads that had once carried armies, refugees, and evacuation columns and now carried schoolchildren, market vendors, and motorbikes balancing entire families.

Long before I became involved with The Extraordinary Chambers in the Courts of Cambodia (“ECCC”), long before court filings, witness statements, and legal arguments came to define much of my professional life in Cambodia, the country had already begun its quiet work on me in ways I only came to understand years later. Continue reading “REFLECTIONS ON MASS ATROCITIES, HISTORICAL MEMORY, AND THE ECCC LEGACY: Cambodia – Past, Present, Future – Part I”

THE DELA ROSA AFFAIR: Jurisdiction, Accountability, and the False Choice between the ICC and Impunity

The essence of the rule of law is that it should place restraints on power.

– Lord Bingham

The public reaction in the Philippines and beyond to Senator Ronald “Bato” Dela Rosa’s apparent evasion of an International Criminal Court (ICC) arrest warrant has been intense, emotional, and, in many quarters, openly condemnatory. For some, it is evidence that powerful individuals continue to enjoy privileges unavailable to ordinary citizens: an attempted escape from accountability unfolding in real time. For others, it is yet another example of impunity shielding political elites from consequences that would otherwise be swiftly imposed.

The anger is understandable. Many victims, activists, and observers view Dela Rosa not merely as a political figure but as a principal architect of the Duterte administration’s anti-drug campaign – a campaign alleged to have killed thousands and shattered countless families. From that perspective, jurisdictional objections can seem less like legal arguments than like procedural obstruction.

But that framing risks a deeper analytical error: it collapses distinct legal questions into a single moral narrative. The structure of available legal outcomes is not binary – ICC prosecution or no accountability.

Continue reading “THE DELA ROSA AFFAIR: Jurisdiction, Accountability, and the False Choice between the ICC and Impunity”

CORRECTION NOT RETRACTION: If Anything, This Makes It Worse

Occasionally, I get facts wrong. When that happens, I have no difficulty acknowledging error.

In my earlier post, relying on the biographical details listed by Temple Garden Chambers, I stated that Judge Abdul Koroma was no longer serving as a judge of the International Court of Justice. As Professor Heller was quick – and no doubt delighted – to point out, Judge Koroma presently sits at the ICJ in an ad hoc judicial capacity.

On that point, I was, like Middle East Eye in breaking the story, mistaken. Mea culpa. And sincerely so. Continue reading “CORRECTION NOT RETRACTION: If Anything, This Makes It Worse”

WEAPONIZING JUDICIAL PRESTIGE: The Curious Timing of the “Koroma Opinion”

Any attempt to re-open litigation of the matter would undermine the integrity of the Institution and the rule of law.

– Abdul Koroma

So declares former International Court of Justice judge Abdul Koroma, according to the Middle East Eye (MEE), in a seven-page “opinion” (as characterized) concerning the disciplinary proceedings involving the embattled and currently leave-bound ICC Prosecutor Karim A. A. Khan KC.

At this stage, L’Affaire Khan resembles less a serious disciplinary process than a carefully managed media campaign wrapped in legal jargon, institutional symbolism, and selectively deployed prestige. The latest installment is particularly remarkable – even faintly farcical.

Based on MEE’s reporting, which claims to have reviewed the “Koroma Opinion,” Khan – who in recent weeks has embarked on what has been described as an “exoneration media tour” – now appears to be indirectly leveraging the stature of a former ICJ judge to exert pressure not merely on the Bureau but effectively on the Assembly of States Parties (“ASP”).

Is the timing entirely coincidental? Continue reading “WEAPONIZING JUDICIAL PRESTIGE: The Curious Timing of the “Koroma Opinion””

THE DUTERTE JURISDICTIONAL JUDGMENT: Foreboding Questions for the ICC’s Jurisdictional Future

The interpretation of the Rome Statute is governed by the provisions of articles 31 to 33 of the Vienna Convention on the Law of Treaties. The relevant provisions must be interpreted systematically, taking into account the object and purpose of the Statute, which is to put an end to impunity for the perpetrators of the most serious crimes of concern to the international community as a whole and thus contribute to the prevention of such crimes. (para. 1, underlined added)

Judgment on the appeal of Mr. Rodrigo Roa Duterte against Pre-Trial Chamber’s “Decision on the Defence Challenge to the Jurisdiction on the Courts” of 23 October 2025

Legal texts, much like religious ones, rarely yield a single intelligible meaning. They invite interpretation; they sustain it. In doing so, they inevitably reflect not only the words on the page but also the institutional instincts, interpretive philosophy, and normative priorities of those tasked with applying them.

The Rome Statute is no exception. Perspective matters. Purpose matters. And institutional orientation – especially in a court expressly created to confront atrocity crimes – matters profoundly.

When adjudication is guided by a strong commitment to the Statute’s anti-impunity mandate, the interpretive method can shift subtly yet decisively. Textual ambiguities no longer appear as limits; they begin to resemble obstacles. Procedural distinctions no longer function as safeguards; they begin to appear as technicalities that can frustrate the Statute’s overarching purpose. Continue reading “THE DUTERTE JURISDICTIONAL JUDGMENT: Foreboding Questions for the ICC’s Jurisdictional Future “

THE DELA ROSA ARREST WARRANT: Why the Philippine Supreme Court Should Decide the Jurisdictional Question First

However, I respectfully dissent from the Majority’s decision … that the Pre-Trial Chamber did not err when finding that a preliminary examination may constitute a “matter […] under consideration by the Court” within the meaning of article 127(2) of the Statute]. As I have previously stated in another dissenting opinion … it is my view that a preliminary examination is not a “matter […] under consideration by the Court” within the meaning of article 127(2) of the Statute, and that a situation is only under consideration by the Court once a pre-trial chamber authorises an investigation into that situation.

–Judge Gocha Lordkipanidze

For the International Criminal Court (“ICC”), the jurisdictional question regarding alleged crimes committed while the Philippines remained a State Party to the Rome Statute is settled. The Pre-Trial Chamber (“PTC”) has spoken, as has the Appeals Chamber (“AC”). Both concluded, in essence, that once the Office of the Prosecutor (“OTP”) announced it was initiating a preliminary examination before the Philippines submitted formal notice of its withdrawal from the Rome Statute, the Court retained jurisdiction, even though the OTP did not seek authorization to open a formal investigation – as required under the ICC’s statutory framework governing proprio motu investigations – until years after the Philippines was no longer a State Party.

Accordingly, as far as the ICC is concerned, there is no remaining jurisdictional dispute. The arrest warrant for Senator Ronald Dela Rosa is valid, and Philippine authorities should execute it and facilitate his transfer to The Hague.

That is the ICC’s position. However, the more important issue – at least for Dela Rosa – is whether the jurisdictional matter remains justiciable under the Philippine Constitution and the Philippine legal system before another Filipino citizen is surrendered to the ICC. In my view, it plainly does. Continue reading “THE DELA ROSA ARREST WARRANT: Why the Philippine Supreme Court Should Decide the Jurisdictional Question First”