International Criminal Law Archives - Page 2 of 35

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”

THE ELECTIONEERING OF A DISCIPLINARY PROCESS: Ex Parte Advocacy Before ASP Review of the Evidence

Ethics is knowing the difference between what you have the right to do and what is right to do.

– Justice Potter Stewart

In L’Affaire Khan, however, the issue increasingly appears to involve both.

The question is not merely whether on-leave Prosecutor Karim A. A. Khan KC has the practical ability to privately approach representatives of ICC States Parties before any Assembly consideration of his disciplinary affair. The question is whether doing so is ethically compatible with the integrity, fairness, and institutional seriousness expected of the ICC’s chief prosecutor.

It is not. Continue reading “THE ELECTIONEERING OF A DISCIPLINARY PROCESS: Ex Parte Advocacy Before ASP Review of the Evidence”

L’AFFAIRE KHAN: Why the ASP – Not the Bureau – Must Decide

These are serious, but not desperate times. The law sees people that some want to erase. So the question is not whether the ICC is perfect, but whether the world can be better with it.

– Karim A. A. Khan KC

The longer L’Affaire Khan continues, the clearer it becomes that the issue before the International Criminal Court (“ICC”) is no longer confined to the underlying allegations against Prosecutor Karim A. A. Khan KC. The controversy has evolved into something far broader: a test of institutional legitimacy, constitutional competence, and the ICC’s capacity to confront allegations against one of its senior officials with coherence, credibility, and public confidence.

Whatever one ultimately believes about the allegations themselves, the Rome Statute framework was designed to ensure that controversies of this magnitude would not be resolved through managerial discretion, improvised procedural innovation, or the temporary political composition of a subsidiary organ. They were meant to be addressed by the Assembly of States Parties (“ASP”) acting in its plenary constitutional capacity. Continue reading “L’AFFAIRE KHAN: Why the ASP – Not the Bureau – Must Decide”

THE EXONERATION EXPRESS: All Show, No Substance

A half-truth is often a great lie.

– Benjamin Franklin

Just when I thought there was nothing more to say about L’Affaire Khan it appears there is one more point worth making.

I could, of course, spend time examining the decision by the now-on-leave Prosecutor, Karim A. A. Khan KC, to grant an interview to media personality Mehdi Hasan of Zeteo while disciplinary proceedings remain ongoing – an unusual choice for someone ostensibly committed to allowing the process to run its course. One might reasonably ask whether such engagement is intended simply to explain or whether it risks exerting more subtle pressure on the Assembly of States Parties: to accept a particular framing of the process or risk later criticism framed in the language of institutional failure for violating the rule of law. But I won’t. Continue reading “THE EXONERATION EXPRESS: All Show, No Substance”

THERE IS NO “NORMAL” VICTIM: Why Sexual Misconduct Complaints Cannot Be Judged by Stereotype

The most dangerous myths are often the ones people mistake for common sense.

Why This Question Matters

In my last post, I wrote about an uncomfortable institutional question: whether power itself can begin to shape the conditions under which accountability is supposed to occur within the International Criminal Court (ICC). This post turns to a second question, no less consequential: whether assumptions can begin to shape judgment before accountability is formally tested.

Even where a disciplinary mechanism is formally allowed to proceed and no overt interference can yet be shown, allegations of sexual misconduct involving senior officials can still be distorted by something far more ordinary than politics. They can be distorted by assumption. Not a legal assumption, but a human one. Continue reading “THERE IS NO “NORMAL” VICTIM: Why Sexual Misconduct Complaints Cannot Be Judged by Stereotype”