bluuebunny/crossref_metadata_2025_split huggingface dataset:
Defenders of Freedom of Religion or Belief and Non-Governmental Organizations
Authors: Bielefeldt Heiner , Ghanea Nazila , Wiener Michael 
Published: June 2017

Abstract
Freedom of religion or belief has long depended on advocates and human rights defenders to ensure its normative development and its protection. Human rights defenders serve as an essential counterpart to States in advancing freedom of religion or belief by operating within charities, non-governmental organizations (NGOs) or international non-governmental organizations (INGOs), faith-based organizations, interfaith organizations, or community associations. Though the 1981 Declaration and the 1998 Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms are silent on their contributions, their role has been welcomed by numerous freedom of religion or belief mechanisms and mandate-holders. Yet, their contributions are hampered by reprisals against human rights defenders and intimidation against mandate-holders, in sharp contrast with the Standard Terms of Reference for Fact-Finding Missions. Ombudspersons, faith-based organizations, INGOs, and NGOs have an important role to play regarding freedom of religion or belief and need to ensure non-discrimination in their activities.
Introduction
Authors: Green James A 
Published: June 2017

Abstract
The Introduction starts by outlining the main purpose of this book, which is to examine the persistent objector rule in international law. This rule, which is a core aspect of mainstream international law doctrine, holds that if a state persistently and consistently objects to a newly emerging norm of customary international law during the period of the ‘formation’ of that norm, the objecting state is then exempt from the customary norm in question once it has crystallised and for so long as the objection is maintained. So therefore, the ‘majority view’ of the persistent objector rule presents it as a mechanism for states to pre-emptively exempt themselves from newly emerging norms of customary international law.
The Objection Criterion
Authors: Green James A 
Published: June 2017

Abstract
The second part of this book turns towards the way in which the persistent objector rule functions and the various criteria for its operation. This chapter begins with an analsys of waht constitutes ‘objection’ for the purpose of the rule. The chapter looks at the meaning of ‘objection’ in relation to the operation of the rule. It begins by noting that only states can be persistent objectors. It looks at what exactly an objector state must be objecting. The chapter then highlights the usual strategy of states in objecting not to the individual applicability of the emerging norm to them but to the very existence of the emerging norm itself. It also examines the need for objection to be communicated and openly expressed. Finally, it assesses the necessary form of objection.
Peremptory Norms and Persistent Objection
Authors: Green James A 
Published: June 2017

Abstract
This chapter opens the third part of this book. The text here turns to the limitations and role of the persistent objector rule. This chapter begins by examining the commonly advanced contention that the ‘escape hatch’ provided by the persistent objector rule cannot be ‘opened’ in relation to jus cogens norms. A significant majority of scholars have expressed the view that a state cannot exempt itself from a peremptory norm through persistent objection, even when the usual criteria for the rule's operation. The chapter assesses the majority view. Section I sets out what peremptory norms are how they come into being. The chapter then briefly clarifies that the question is not whether a state can gain exemption to a jus cogens norm but whether its pre-existing exempt status ‘decays’, or is superseded by the norm to which it had been a persistent objector becoming peremptory. The chapter then turns to the rationale underpinning the majority claim. It considers the two regularly referenced examples from state practice relating to persistent objection and jus cogens norms: the policy of apartheid in South Africa and Rhodesia and the objections of the United States to the juvenile death penalty. Towards the end, the chapter considers the possibility of persistent objection to the very concept of peremptory norms.
The Role and Value of the Persistent Objector Rule
Authors: Green James A 
Published: June 2017

Abstract
This chapter examines the ‘role’ or ‘value’ of the persistent objector rule. Firstly, the chapter sets out and critiques the voluntarist conception of the persistent objector rule in more detail than has been done in previous chapters. It then considers competing theoretical approaches to international legal obligation, broadly grouped together as being ‘communitarian’ in nature. Such communitarian approaches have tended to dismiss the persistent objector rule along with their dismissal of voluntarism. It is argued that holistic, absolutist theoretical accounts of customary international law fail to take into account its chaotic nature in reality. The chapter therefore argues this it is problematic to appraise the value of the persistent objector rule from the perspective of either voluntarism or communitarianism. Drawing upon some insights from rational choice theory, it is argued that the rule is inherently one of balance, and that its true value lies in its practical benefits both for individual objectors and the wider international community. The chapter then assesses the rule's various functional benefits as a ‘safety valve’. The chapter also examines the contributions that persistent objection can make to the development of customary international law. At the end of the chapter, the text briefly notes that many of the benefits of the persistent objector rule may, at least in part, stem from the perception of state autonomy that it creates.
Conclusion
Authors: Green James A 
Published: June 2017

Abstract
This concluding chapter looks back at the issues outlined here. This book has presented a detailed account of the persistent objector rule seeking to assess the rule's existence and limitations and value in depth. However, this investigation can only go so far. This is because, like customary international law itself, the persistent objector rule has inherent uncertainties at its core. We cannot provide precise answers to at least some of the key questions concerning how the rule functions — for example, exactly how persistent and consistent the objection needs to be — because, in relation to these sorts of questions, there are no precise answers to give. It is hoped, however, that this book has helped to increase the general understanding of this often misunderstood rule. The book, the conclusion states, has aimed to go beyond the scholarly examinations of the rule and to focus on persistent objection ‘in action’ in state practice.
The International Criminal Court (ICC) and Double Standards of International Justice
Authors: Dicker Richard 
Published: June 2017

Abstract
This chapter situates the ICC’s practice to date in the context of the perceived ‘double standard’ dilemmas that international criminal justice continues to face. The Rome Statute’s consent-based jurisdictional regime-with the exception of the Security Council referral mechanism-has inherent limitations. This contribution examines the causes and the effects of these limitations over the course of the last decade of Court activities, as well as possible ways to address this dilemma. It argues that Security Council practice has shown three distinct negative features: (i) selectivity, (ii) substantive shortcomings in the referral resolutions, and (iii) a lack of meaningful follow-up. This calls for an improvement of the Council’s working methods that maintains the judicial independence of the Court.
The ICC and the Politics of Peace and Justice
Authors: Vinjamuri Leslie 
Published: June 2017

Abstract
The indictment of sitting heads of state and rebel leaders during active armed conflict has radically altered the debate surrounding international justice. Despite the view now widely held that peace and justice are complementary rather than competing values, conflicts in the former Yugoslavia, Sudan, Libya, and Syria have brought home the reality that there are still significant barriers to achieving both peace and justice simultaneously, and that the prospects for enforcing justice are weak when perpetrators of atrocities remain powerful at home. Leading advocacy organizations and the ICC stress the role of international justice in delivering results, especially peace, the rule of law, and stability. This chapter discusses the shift in international justice advocacy from a principle or duty-based logic to one that is results-based. It argues that one way to promote justice may be to postpone it (e.g. through sequencing).
The Relationship between the ICC and the United Nations Security Council
Authors: Verduzco Deborah Ruiz 
Published: June 2017

Abstract
International criminal justice emerged in the tradition of international peace and security. The relationship between the ICC and the Security Council has been problematic since the inception of the Court. While some delegations argued that the nexus to collective security is helpful because it might make ICC justice more effective in terms of enforcement, other delegations feared that it might render the Court vulnerable to alignment with politics. This chapter examines dilemmas that have emerged in the interaction between the Court and the Council in the first decade. It focuses on several key areas: referrals, deferrals, and institutional interaction, most notably cooperation and funding. It seeks to offer a constructivist vision on the interplay between the ICC and the Council, by offering some targeted recommendations to improve the status quo.
Admissibility Challenges before the ICC
Authors: Stahn Carsten 
Published: June 2017

Abstract
The ICC has faced admissibility challenges under Article 19 of the Statute in a number of situations and cases. The Court has set a high jurisprudential threshold through its interpretation of the ‘same conduct test’ under Article 17. The Libyan cases (Saif Al-Islam Gaddafi and Abdullah Al-Senussi) have provided some leeway for domestic jurisdictions. But jurisprudence continues to rely on top-down approaches and ‘mirroring’ imagery that is geared towards the replication of international practices at the domestic level. The role of time and the space for parallel engagement of the ICC and domestic jurisdictions have not received sufficient attention. This chapter argues that the modalities of deference to domestic jurisdiction need to be refined. It suggests that some of the existing deficiencies may be mitigated by greater attention to qualified deference, i.e. management of parallel proceedings, strengthening of monitoring structures, and clarification of conditions of deference (‘conditional admissibility’).
The Frog that Wanted to Be an Ox
Authors: Jacobs Dov 
Published: June 2017

Abstract
This chapter addresses the relationship between immunities and the requirements of state cooperation in cases where the person prosecuted is a national of a non-State Party (e.g. Al Bashir). It examines the complex relationship between Articles 27 and 98 of the Rome Statute and the manner in which they comport with clearly established norms of public international law. The chapter highlights a number of possible legal avenues to circumvent the obstacle posed by immunities, which include reference to customary international law, analysis of the powers of the United Nations Security Council, and the Genocide Convention. It argues that all these solutions have a number of flaws that are difficult to overcome.
Accountability of International Prosecutors
Authors: Turner Jenia Iontcheva 
Published: June 2017

Abstract
The dilemma of holding prosecutors accountable while ensuring their independence was at the centre of the debates surrounding the establishment of the ICC and has been a recurring question ever since. Drastic judicial remedies against prosecutorial misconduct have the potential of harming other interests of international criminal justice, including deterrence, retribution, and the establishment of an accurate historical record. On the other hand, non-judicial mechanisms may compromise the principle of prosecutorial independence and create the risk that politics would influence disciplinary decisions. This chapter examines how the ICC has approached this accountability dilemma in its first years of operation. It advances that the Court should adopt a structured balancing approach in determining remedies for prosecutorial misconduct to include internal bureaucratic controls within the OTP, judicial intervention, and disciplinary measures by the ASP, the IOM, and national or international bar associations.
Article 21 and the Hierarchy of Sources of Law before the ICC
Authors: Bitti Gilbert 
Published: June 2017

Abstract
Article 21 of the ICC Statute is unique in the arena of international criminal justice. It introduces a differentiated hierarchy in relation to sources of law, yet it remains one of the most ambiguous provisions of the Statute. This chapter investigates how the ICC has interpreted this provision, and what approaches the Court has adopted in relation to the interpretation and application of different sources of law, including ‘internationally recognized human rights’ under Article 21(3). It contrasts the internal law of the ICC with external sources, and argues that ICC Chambers should use to their full extent the possibility given to them by Article 21(3), rather than trying to import procedures from the ad hoc Tribunals or from some domestic jurisdictions.
Command Responsibility under Article 28 of the Rome Statute
Authors: Kiss Alejandro 
Published: June 2017

Abstract
This chapter discusses the concept of command responsibility under Article 28 of the ICC Statute. This doctrine evolved against the need to rethink the existing concepts of ordinary criminal law in a manner that would address cases of individuals in high positions of authority responsible for mass criminality. There is a plethora of literature and jurisprudence, particularly since the experiences of the ad hoc tribunals, dealing with the most contentious aspects of command responsibility, but many aspects remain unclear. This chapter addresses issues which involve the most significant practical consequences, including the superior-subordinate relationship and the requirement of effective control, the duties imposed on commanders and superiors, the role of causation, and the mental element.
Rethinking the Mental Elements in the Jurisprudence of the ICC
Authors: Badar Mohamed Elewa , Porro Sara 
Published: June 2017

Abstract
Mental elements have played a key role in ICC jurisprudence. This chapter provides a comprehensive analysis of the default rule of Article 30 of the ICC Statute, tackling the issues of dolus eventualis, recklessness, and wilful blindness. The chapter then deals with the disputed meaning of the opening clause ‘Unless otherwise provided’ in Article 30 of the Statute, before investigating the mental elements applicable to attacks affecting civilians. It argues that the ICC regime departs significantly from the broad concept of intent developed in the jurisprudence of the ad hoc Tribunals and applied by the ICTY to the war crime of attacks against civilians. It shows that the exclusion of dolus eventualis from the realm of Article 30 provides challenges for future practice.
The ICC’s First Encounter with the Crime of Genocide
Authors: Kreß Claus 
Published: June 2017

Abstract
The ICC’s first substantial encounter with the crime of genocide was triggered by the prosecution’s application for a warrant of arrest against Omar Al Bashir on 14 July 2008. This chapter addresses the emerging ICC jurisprudence on the crime of genocide, including Pre-Trial Chamber I’s ‘Decision on the Prosecution’s Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir’ of 4 March 2009, which constitutes the most important engagement of an ICC Chamber with the definition of the crime of genocide to date. The chapter discusses the nature of genocide and its material and mental elements, including the controversy over the purpose versus the knowledge-based approach and whether the crime of genocide requires an objective point of reference for the perpetrator’s intent, namely, the existence of a realistic collective goal to destroy the target group in whole or in part.
The Crime of Aggression
Authors: Clark Roger S 
Published: June 2017

Abstract
The crime of aggression was included, in principle, within the jurisdiction of the ICC by the Rome Statute of 1998. Making that jurisdiction operational was, however, left to the First Review Conference on the Court, which took place in Kampala in 2010. This chapter discusses the details of the Kampala Amendments to the Rome Statute, including the Elements of Crime of aggression. It analyses efforts to obtain sufficient ratifications of the amendments to bring them into force, as well as the implementation of aggression in domestic legislation. It argues that a State ratifying the Kampala Amendments should domesticate Article 8bis and its Elements as closely as possible by penal legislation, and award at least jurisdiction over conduct of its own nationals.
Proportionate Sentencing at the ICC
Authors: deGuzman Margaret M 
Published: June 2017

Abstract
In sentencing decisions, the concept of proportionality is often understood in purely retributive terms-punishment should accord with the desert of the perpetrator. This contribution argues that the ICC should use retributive proportionality at most as a limiting principle. It begins with a brief critique of ICC sentencing approaches, including the Lubanga sentencing judgment. Next, it provides an overview of the dominant theories of proportionality and some of their implications for sentencing. Third, the chapter examines the sources of law available to the ICC in relation to proportionality analysis, demonstrating that they support a focus on crime prevention. Fourth, the chapter explains why retributive proportionality would be both impracticable and dangerous. Finally, it proposes a preventive theory of proportionate punishment, arguing that the ICC should focus primarily on appropriate norm expression and other aspects of prevention, such as deterrence, incapacitation, and restorative justice.
‘A Stick to Hit the Accused With’
Authors: Heller Kevin 
Published: June 2017

Abstract
This Chapter provides a comprehensive critique of Regulation 55 at the ICC which regulates the legal characterization of facts in the ICC context. Regulation 55 has been applied in multiple cases at the ICC, including pre-trial and trial (e.g. Katanga and Ngudjolo Chui). This contribution argues that the adoption of Regulation 55 was ultra vires, because the Regulation does not involve a ‘routine function’ of the Court and is inconsistent with the Rome Statute’s procedures for amending charges. It explains why, contrary to the practice of the Pre-Trial Chamber and Trial Chamber, Regulation 55 cannot be applied either prior to trial or after trial has ended. Finally, it demonstrates that the Pre-Trial Chamber and Trial Chamber have applied Regulation 55 in ways that undermine both prosecutorial independence and the accused’s right to a fair trial.
Disclosure Challenges at the ICC
Authors: Whiting Alex 
Published: June 2017

Abstract
This Chapter provides a prosecutorial perspective on evidence and disclosure. It proceeds in two parts: the first part sketches out the disclosure regime at the ICC; the second part identifies the challenges that the prosecution faces in managing disclosure. The contribution examines the approaches adopted by Pre-Trial and Trial Chambers and their impact on prosecutorial strategy and practice. It deals with constraints on disclosure (e.g. provider confidentiality, and witness protection) and puts the difficulties encountered in the first cases (e.g. Lubanga) into perspective. Finally, it reflects on key aspects of the emerging evidentiary regime, such as the role of documentary evidence, witness examination and testimony, and judicial questioning. The contribution argues that disclosure is not a topic that will ‘go away’ or be solved, but will instead be a recurring issue at the tribunals, in particular, in cases involving large amounts of material.
The Roads to Freedom—Interim Release in the Practice of the ICC
Authors: Dumbryte Aiste 
Published: June 2017

Abstract
This Chapter examines whether the ICC has managed to achieve an appropriate balance between two competing values: the accused’s right to liberty and the effective administration of international criminal justice. It analyses the Court’s case-law on interim release, comparing it to the jurisprudence of the ad hoc tribunals and human rights courts. It covers the allocation of burden of proof in interim release cases, as well as the three grounds for interim release provided by the Rome Statute and the Court’s jurisprudence: absence of the risk of flight, interference with the proceedings, and further commission of crimes; unreasonable length of detention; and exceptional humanitarian circumstances. The Chapter points out shortcomings in the current legal framework of the Court and suggests several amendments of the Rome Statute in order to ensure that the accused individuals can effectively challenge their detention.
Testifying behind Bars—Detained ICC Witnesses and Human Rights Protection
Authors: van Wijk Joris , Cupido Marjolein 
Published: June 2017

Abstract
This Chapter discusses the competing responsibilities of the ICC and the host State in relation to detained witnesses, with a particular focus on asylum applications. As shown by the example of Congolese witnesses, testimony before the Court can lead to conflicting human rights obligations. The Court is obliged to return detained witnesses to the requested state after they have testified. The ICC and the Netherlands need to respect internationally recognized human rights and protect persons from persecution. Attempts to reconcile these competing obligations have resulted in lengthy proceedings before the ICC and Dutch courts. This Chapter examines the problems that arose in this context, and argues that the threat of more asylum applications could have serious implications for the future functioning of international criminal justice. It explores three possible alternative solutions: anticipatory protective measures, video-link testimony, and rogatory commissions, all of which come with their own complications.
The Rome Statute’s Regime of Victim Redress
Authors: McCarthy Conor 
Published: June 2017

Abstract
This Chapter examines the ICC framework of victim redress. It explores the character of the Statute’s reparations regime, asking how the regime is properly characterized in legal terms. It identifies a number of key issues which arise in respect of the relationship between the Statute’s regime of victim redress as a whole and national legal systems, in particular, the question of complementarity and victim redress. It argues that reparations are not simply a specific form of humanitarian relief or charitable assistance. It claims that the ICC needs to strike a proper balance between the principled need for fairness and consistency in the treatment of victims, and the need for efficiency and expeditious delivery of redress. Proper procedures, including verification and monitoring arrangements, are necessary to ensure that the overall role of reparations arrangements is respected.