Journal of International Criminal Law
Volume:1 Issue: 1, Winter 2020

The surge in the use of female suicide bombers by Boko Haram since 2014 has received heightened attention, particularly after the abduction of 276 girls in Chibok, Borno State, Nigeria on 14 April 2014. It is believed that the abducted schoolgirls are coerced along with many other women and young girls into being suicide bombers by Boko Haram for Boko Haram.  This phenomenon, therefore, creates a binary status for many of these suicide bombers – ‘victim-perpetrators’ under International Criminal Law. As victims - a target group of gender persecution, as a crime against humanity. As perpetrators - unwilling cocoons in the Boko Haram insurgency. Because the International Criminal Court is saddled with the prosecution of those ‘most responsible’ for international crimes, it is doubtful that suicide bombers would be prosecuted at the International Criminal Court. This leaves prosecution of suicide bombers to domestic courts. But domestic prosecutions would have to look to International Criminal Law for the adoption of internationally recognized standards in prosecuting international crimes. This article is a modest contribution to the field of gender and International Criminal Law. This piece offers an analysis of the crime of gender persecution. It interrogates the question of criminal responsibility or lack thereof for the women coerced into being Persone Borne Improvised Explosive Devices (PBIEDs.)

Punishment of perpetrators of war crimes in armed conflicts was one of the long-standing ambitions of the international community, which was partially achieved by the establishment of the International Criminal Court. The Court's jurisdiction to prosecute war crimes committed in non-international armed conflict is subject to the establishment of armed conflict. Given that the Statute does not define the term non-international armed conflict, in this article we intend to use the applicable law of the Court to define this concept. The statute is inspired by humanitarian law and humanitarian law generally requires two conditions for the application of humanitarian law to non-international armed conflicts: organization of armed group and intensity of violence. What creates ambiguity in the statute is the term protracted armed conflict in paragraph(f)of Article8(2)of the Statute. The existence of this phrase in the Statute in the first place raises the doubt that the Statute, in addition to the existing threshold in common Article3 and the Additional Protocol II, has created a new threshold for non-international armed conflict. In this article, we also try to prove that by examining the history of drafting articles related to war crimes, the practice of the court and the doctrine that threshold of application of the regulations of war crimes is the same according to the statute and to enforce its rules, the Court considers the lower threshold, which is the intensity of violence and the organization of armed groups, and the protracted armed conflict is one of the criteria for determining the intensity of violence.

The definition of the crime of aggression and how the International Criminal court applies its jurisdiction over it was the most challenging issue in the establishment of the Court, which is still a challenge after several decades of starting such a Process. The crime of aggression after six decades of negotiation and endeavors was eventually defined during the Rome Statute Review Conference held in Kampala in 2010. The resolution adopted by the Assembly of States Parties, also defining the crime of aggression, clarified the jurisdiction of the Court, as well as the relationship between the Security Council and the ICC regarding the crime of aggression. The present paper aims to clarify whether the Kampala Amendment has been able to resolve all ambiguities in this regard and allow the prosecution of the crime of aggression in the court. The present study suggests that although the Kampala amendment was supposed to make practical the prosecution of the crime of aggression, the practice of prosecuting this crime in the court is practically difficult. This has led to criticisms of this resolution and the persistence of the challenges about the crime of aggression.

Sanctions imposed by the US against Iran have had disastrous implications for the Iranian population and this requires the responsibility of those who imposed such sanctions. ICC as the only permanent court, which investigates the criminal responsibility of individuals, would be the most appropriate international forum for prosecuting American authorities imposing sanctions against Iran. According to jurisdictional limitations for Iran and the US as states not parties to the ICC Statute, the only way for Iran to resort to the Court is to accept jurisdiction of the Court concerning the crime in question under article 12(3) of Rome Statute through a declaration. Although sanctions are not considered by themselves as crime, implications of which could be categorized under the category of crimes against humanity including extermination, persecution, and other inhumane acts of a similar character. Notwithstanding, Iran may be prevented from the possibility of the exercise of the jurisdiction by the court against Iranian officials by excluding the court jurisdiction in its declaration to investigating the situation in question i.e. sanctions.

This paper examines the question to what extent the criticism is justified that the ICC functions as a postcolonial tool for Western countries to control African countries. To analyse this question, this paper focuses on two main arguments of the postcolonial critique: first, the accusation that the ICC focuses unfairly on Africa and second, that the ICC is as a hegemonic tool of the West which stresses the importance of global politics in the practice of the ICC. Evaluating the two key aspects of the postcolonial critique, the author concludes that the ICC is unfairly accused of practising selective prosecution and also the critique that the ICC is a hegemonic tool of Western countries is not true as African countries played an essential role in its formation. However, the critique of the role of the UNSC is justified.

With the establishment of the International Criminal Court (ICC), the impunity movement took on a more serious form, and the hope for the realization of this dream has been realized. The situation of the Democratic Republic of the Congo was one of the first ones that dealt with by the ICC. This was also a test for the Court's effectiveness of its laws in the administration of justice. Within the situation, the Court has dealt with six cases to punishing international crimes committed during the Congolese civil war. During the investigations related to the situation, two issues were raised: First, the effectiveness of the Court's rules, including the Statute of the Court, Rules of Procedure and Evidence, and other relevant rules in prosecuting and punishing offenders, and second, the use of elements of a fair trial for trying the accused. Since the Court is an international body dealing with the most serious crimes concerned with the international community, a fair trial, focusing on the punishment of perpetrators and protection of the victims, is the least expected of an international tribunal. In the meantime, handling some cases was more challenging, inter alia, the case of Mr. Thomas Lubanga, whose criminal case contained many legal issues. In addition, the function of the Court was repeatedly criticized during his trial. In particular, the performance of the prosecutor's office in collecting documents against the defendants, as well as the manner in which the trial handled their case, indicated that the Court's rules may not have the effect to conduct a fair trial yet and that some of its rules need to be amended. Although the court did not succeed in convicting all the accused and also could not determine the punishment for their crimes for the rest of the convicts, it was able to lay the foundation for the fight to end impunity.