The International Criminal Court (ICC) is a legal institution embedded in international politics. Politics shaped the Rome Statute of the ICC, which is rooted in norms and rules of European lineage and security interests of party states. Politics constrains and influences the operation of the Court, which has adapted in response to oversight and governance of the Assembly of States Parties, and to political actions extrinsic to institutional rules. The ICC also has political effects in situation states. A brief history shows that application of Rome Statute triggers across state parties with different social conditions skewed geographic distribution of its investigations and prosecutions towards Africa, a structural bias that catalysed a legitimation crisis for the ICC. Subsequent exercises of expansive jurisdiction aimed at nationals of non-African, non-party states – including Israel and some of the world's great powers – have dampened African complaints and advanced the ICC agenda, but intensified non-legitimacy claims by powerful non-party states. To survive, Court organs must follow legal mandates, yet be responsive to pressing international political demands, continuously risking the legitimacy of the ICC as a legal institution and adverse political reactions by antagonised governments. Careful management of the tension between law and politics at the ICC may modestly reduce antagonism towards the Court, but that tension cannot be resolved, and confrontations over the ICC's legitimacy are certain to recur.

Much discussion over Russia's 2022 invasion of Ukraine focuses on the inability to charge aggression. However, another approach might be available: charging this under the ICC crimes against humanity (CAH) residual clause. First proposed in 2010 by Benjamin Ferencz, who lamented the circumscribed reach of aggression under the ‘Kampala Compromise’, the proposal has met with scepticism, primarily given that textbook aggression targets military forces, not civilians. Yet, civilian populations disproportionately bear the brunt of the violence of modern aggression (often being its direct targets). Russia's 2022 invasion is but the most recent and compelling example. Thus, this article resuscitates Ferencz's proposal, arguing that Russian leaders could be charged with using illegal force as a CAH under the residual clause. This approach would have practical advantages: initiating aggression in the Kremlin links liability to Putin much more directly for killing Ukrainian civilians, and charging it as CAH opens human victims to ICC participation and reparations. There are theoretical advantages, too, with utilitarian/retributive objectives better satisfied. Moreover, Ferencz's approach is better than recently proposed alternatives: using aggression merely as a gravity/liability modes/sentencing enhancer or alleging breach of the right to self-determination as the residual clause gravamen (arguably creating problems with victim group identification).

This article delves into Sweden's evolving legal response to international crimes, notably focusing on the 2021 War Poses case before the Swedish Supreme Court. The case involves an Iraqi asylum-seeker charged with violating the personal dignity of several persons, presumed to be deceased, during a 2015 non-international armed conflict in Kirkuk, Iraq. A key contention is whether deceased individuals can be considered “protected persons” under Swedish war crimes legislation. The article examines the Swedish Supreme Court's decision, which deems deceased individuals as protected persons, drawing on the Rome Statute's Elements of Crimes. It examines the complexities surrounding the application of international humanitarian law (IHL) to cases involving the deceased and explores potential misinterpretations arising from the Court's brief and ambiguous reasoning. As Sweden grapples with the complexities of international criminal law, the article advocates for clarity and comprehensive discussion to ensure that justice is served while upholding accurate and harmonized definitions of fundamental concepts of IHL.

Throughout history, armed conflicts have frequently seen serious harm committed against the natural environment. From the early 1960s to 1971, the United States used Agent Orange to defoliate large tracts of Vietnamese forests. In the 1990s, Saddam Hussein vengefully ordered the burning of Kuwaiti oil wells, resulting in massive pollution to the air, land and surrounding seas. More recently, ecocentric harm has been documented in the Colombian civil war, by the so-called Islamic State group, and in the Ukraine conflict, among others. Whilst international humanitarian law (IHL) contains several prohibitions against environmental harm, the most striking is Article 55(2) of Additional Protocol I, whereby “[a]ttacks against the natural environment by way of reprisals are prohibited”. Although this provision appears absolute and unconditional, critical questions persist regarding its status under customary international law and its applicability in non-international armed conflicts. Moreover, its criminalization has not been explored in the jurisprudence of international courts or in the relevant scholarly literature, despite the fact that penal sanctions against individuals are an important factor for enforcement of environmental protections.

To fill the lacuna, the following analysis examines the prohibition and criminalization of reprisals against the natural environment. It reviews conventional and customary international law to determine the current status of a putative criminal prohibition and its potential as lex ferenda. Importantly, it also assesses the relevance of reprisals against the natural environment for prosecutions under existing war crimes, such as attacks on civilian objects and destruction of enemy property. It generates novel insights for the application of international law to ecocentric harm, including that (1) reprisals against the natural environment are not criminal per se, but (2) conceptualizing the environment as a civilian object opens up clear paths for prosecuting attacks, including reprisals, against it; (3) the inherently intentional nature of reprisals has far-reaching implications for their prosecution; (4) reprisals can significantly impact the pivotal test of military necessity which arises in criminal prohibitions such as that found in Article 8(2)(b)(iv) of the Rome Statute; and (5) situations of reprisals could impact the application of the proposed definition of ecocide.

Traversing IHL and international criminal law (ICL), the article identifies ways in which these traditionally anthropocentric bodies of law can be reoriented to accommodate ecocentric values. This reconceptualization is significant, as the prospect of criminal sanctions is critical for deterring potential perpetrators and potentially adds a basis for reparations designed to remediate damage to the environment. The assessment redresses the fact that the natural environment has been seen as a peripheral matter under both IHL and ICL and has remained under-explored despite the ongoing destruction wrought on nature including during armed conflict. It seeks to elevate the environment to a core protected value under these legal regimes, as a reflection of our increasing awareness that the natural environment is critical for the well-being of current and future generations and our growing appreciation of the intrinsic importance of protecting nature.

This article is one of very few attempts to empirically measure legal interpretation. It maps the application of eleven interpretation elements (good faith, ordinary meaning, object and purpose, etc.) in Articles 31 and 32 of the Vienna Convention on the Law of Treaties (VCLT) across ten International Criminal Court case studies. The elements were coded for identity and sequence of element, and amount of text used in applying each element. The mapping and analysis reveal, among other things, that the application of the VCLT across cases is markedly inconsistent and, in some instances, opaque and arguably unjustifiable. The results suggest, at least based on this small sample, that the ICC’s current practice of applying the accommodating, flexible methodology of the VCLT may be inconsistent with the requirement of strict construction in Article 22 of the Rome Statute, and that even when strict construction does not technically apply, a more systematic, transparent, and robust approach should nevertheless still be followed.

An expert panel formed by Stop Ecocide International has proposed an amendment to the Rome Statute of the International Criminal Court which, if adopted, would create a new international crime of ecocide. However, the panel's proposal is compromised throughout by anthropocentrism in the sense that it places too much emphasis on the needs of humans and not enough on the needs of the environment. It is argued here that this anthropocentric dilution of ecocide resulted from the panel's lack of standing, influence and confidence on the international stage. Its weakness pushed it towards a strategy of producing something palatable to states in the hope of securing their support. That strategy will prove futile. The article considers whether other actors, such as the international courts or experts working in different contexts, might be better placed to design the blueprint for ecocide. It concludes, tentatively, that the International Law Commission remains the architect best positioned to set out a bold vision of ecocide.

Cette réflexion se propose d’analyser le texte du projet d’amendements du Statut de Rome visant à inclure dans le champ matériel de la Cour pénale internationale (CPI) un crime d’écocide. Conçu sous l’égide d’une organisation non gouvernementale réunissant douze spécialistes-praticiens du droit international de l’environnement et du droit international pénal, ce texte vient marquer les bases d’une définition juridique d’un crime écologique autonome. S’inscrivant dans la dynamique d’incrimination des dommages gravement attentatoires à l’environnement, cette démarche de caractérisation remonte dans la brume grisâtre d’un passé un tout petit peu lointain. L’on relèvera à cet effet que l’opération Ranch Hand au Vietnam constitue l’un des repères structurant l’urgence de criminaliser les actes graves d’atteinte écologique. C’est dans cette perspective que les travaux de la Commission du droit international sur la codification des crimes contre la paix et la sécurité de l’humanité soulignent l’intérêt d’incriminer aussi bien les dommages écologiques perpétrés en temps de paix que dans le contexte de belligérance. Le Statut de Rome s’étant limité, dans sa conception originale, aux seuls dommages écologiques perpétrés en temps de guerre, ce projet d’amendements du Statut de Rome rend compte de l’intérêt de prendre en charge notamment les milliers d’atteintes écologiques émanant, en temps normal, des multinationales et des criminels maffieux, à travers une incrimination autonome consacrant l’écocide comme cinquième crime contre la paix et la sécurité de l’humanité. Force est de souligner que cette proposition de révision vient rééquilibrer les fondements épistémologiques d’une convention par excellence anthropocentrique en lui assignant une bonne dose d’éco-centrisme. C’est donc l’occasion de souligner qu’ayant été assumé par le Vanuatu à l’occasion de la 20ème session de l’Assemblée générale des États-parties du Statut de Rome, ce texte constitue la base sur laquelle repose cette révision conventionnelle. Il appartiendra aux États-parties au texte instituant la CPI de se l’approprier à travers leur implication dans le processus de révision.

Scholars of global constitutionalism have recently come to examine international criminal law (ICL) and its associated institutions, in particular the International Criminal Court (the ICC). This article prolongs these efforts by pointing to and remedying two deficits of that project with particular emphasis on the Rome Statute crimes. First, how does one account for the role of the international trial in global constitutionalist terms? Second, can global constitutionalism insightfully explain the content and scope of these crimes – that is, both their substantive definition and the predominant modes of liability developed by the ICC? This article answers both questions affirmatively and offers an account of their nexus. It first shows that the Rome Statute crimes are often perpetrated through a hierarchically organized apparatus of control, and interprets their global constitutional significance via the principle of constituent power. It then makes use of Antony Duff’s relational account of criminal liability to offer an account of the international trial. In the international context, one can conceive of the trial as allowing state or state-like authorities to call each other to account, which renders justice to the core function of enabling and limiting political authority on which global constitutionalism centres.

One of the revolutionary aspects of the Rome Statute was the decision to grant the Prosecutor the power to trigger the International Criminal Court’s (ICC or the Court) jurisdiction in the absence of a state or United Nations Security Council referral. To guard against the abuse of this power, the Prosecutor was granted the power to initiate investigations proprio motu subject to a caveat that the decision to initiate investigations will be reviewed by the Pre-Trial Chamber (PTC) pursuant to Article 15(4) of the Statute. The interpretation of this provision came under the spotlight in the situation in Afghanistan where a turf battle between the Prosecutor and the PTC over the control of Prosecutor-initiated investigations emerged. While the Appeals Chamber’s decision to authorize investigations in Afghanistan gave a lifeline to the Prosecutor’s power to initiate investigations, it also raises questions regarding the extent of the PTC’s powers vis-à-vis the Prosecutor’s decision to initiate investigations. This article argues that the Appeals Chamber erred in its finding that the PTC has no review powers over the Prosecutor’s decision to open investigations. It further argues that the Appeals Chamber erred in its determination of the factors which the PTC must take into account when it considers the Prosecutor’s request to initiate investigations. The article argues that the decision undermines the balance of power between the Prosecutor and the PTC which was an important consideration for some states when they agreed to be part of the Rome Statute. The article also contests the Prosecutor and the Court’s interpretation of Article 18 of the Statute.

President Rodrigo Duterte won on a law-and-order campaign promise to fatten the fish in Manila Bay with the corpses of criminals. By the time the Philippines withdrew from the Rome Statute, the body count stood at a reported 30,000, a fifth of whom were openly killed in Philippine National Police (PNP) anti-drug operations. Duterte has since been accused of Crimes Against Humanity, inter alia, as “a person effectively acting as a military commander” under Article 28(a) of the Rome Statute for failing to prevent, repress, and report the crimes of his police subordinates. This study tests the veracity of that claim. It seeks to determine whether Duterte, as the Chief Executive and overall superior of the PNP – statutorily, a civilian group – may be held liable as a military-like commander under the doctrine of command responsibility. At the core of this query lies a singular concern far from simple: the meaning of military-likeness.

Legislating for international courts and tribunals is a delicate and complex process, which sometimes results in unintended consequences. Arguably, the inclusion of a special intent requirement, also known as dolus specialis, concerning “private or personal use” in the definition of pillage under the Rome Statute of the International Criminal Court is one such consequence. But this is not the only reason why the war crime of pillage deserves special attention. On closer examination, other questions arise concerning its interpretation and application. What is the meaning of “military necessity” and “necessity” in relation to pillage, and how do they correlate with the special intent requirement? To answer these questions, the article examines the drafting history, law and current practice relating to the crime's ambiguous new element. It then proposes several avenues to address the recurring uncertainty regarding its meaning: conservative, radical and pragmatic.