H.G. van der Wilt

Procedural obligations under the European Convention on Human Rights: useful guidelines for the assessment of ‘unwillingness' and ‘inability' in the context of the complementarity principle

The authors are involved in a research project “Impact of International Courts on Domestic Criminal Procedures in mass atrocity cases” (DOMAC), uniting Hebrew University, University College London, Reykjavik University and the University of Amsterdam.

Unconstitutional Change of Government: A New Crime within the Jurisdiction of the African Criminal Court

One of the most interesting and controversial crimes that belong to the subject matter jurisdiction of the newly to be established African Criminal Chamber is undoubtedly the crime of unconstitutional change of government. This article explores the question why this offence is upgraded to the regional level of criminal law enforcement. After all, any criminalization of the conduct at a regional level and the concomitant inclusion of the offence in the jurisdiction of regional courts raises questions about the right of foreign intervention in internal political affairs and the curtailment of the right to rebel. The crime of unconstitutional change of government is tested against these principles and it is concluded that they do not impede criminalization, nor the elevation of the crime to a regional level. In search of a positive argument in defence of the inclusion of the crime within the jurisdiction of the African Court, I contend that the best explanation is that insurgencies are not contained to single states but are inclined to spread to other countries. In view of the specific African experience, where endemic conflicts have proved to be contagious, it is clear that states have a common interest in suppressing both the dynamic and static form of unconstitutional change of government.

The transfer of the execution of sentences of the International Criminal Court in light of inter-State practice

The ICC and other international criminal tribunals have at their disposal premises for the purpose of the pre-trial detention of accused. However, for the enforcement of their sentences these international tribunals are dependent on the assistance of States. Article 103 of the ICCSt stipulates that a sentence of imprisonment shall be served in a State designated by the ICC from a list of States which have indicated to the Court their willingness to accept sentenced persons. Legally, this amounts to a transfer of execution of a (foreign) judgment, a device that is well-known in the realm of international cooperation in criminal matters. In this horizontal context such transfers are usually governed by international treaties, the most famous of them being the Convention on the Transfer of Sentenced Persons. This Convention leaves States parties ample leeway to arrange the transfer of sentences and prisoners, but attaches a number of minimum requirements, like the condition that the sentenced person, the sentencing State and the administering State all agree to the transfer, that the sentenced person is a national of the administering State and that the condition of ‘double criminality’ is satisfied. Such conditions serve to reconcile the interests of States with those of the sentenced person. In the vertical framework of cooperation between the ICC and States, both the sovereign interests of States involved and the position of the individual are less prevailing and, indeed, are expected to succumb to the overarching aspirations of international criminal justice.

Nullum Crimen and International Criminal Law: The Relevance of the Foreseeability Test

This article traces the development of the foreseeability test in the context of the nullum crimen principle. While the European Court of Human Rights has introduced the ‘accessibility and foreseeability’ criteria long ago in the Sunday Times case, the Court has only recently started to apply this standard with respect to international crimes. In the Kononov case, judges of the European Court of Human Rights exhibited strongly divergent opinions on the question whether the punishment of alleged war crimes that had been committed in 1944 violated the nullum crimen principle. According to this author, the dissension of the judges demonstrates the lack of objective foreseeability, which should have served as a starting point for the assessment of the subjective foreseeability and a - potentially exculpating - mistake of law of the perpetrator. The Court should therefore have concluded that the nullum crimen principle had been violated.

The spider and the system: Milošević and joint criminal enterprise

This chapter examines the Prosecutions use of the doctrine of joint criminal enterprise (JCE) to hold Milosevic responsible for genocide. The choice of JCE relaxed the burden on the Prosecution to prove that Milosevic harbored a special intent to destroy a group in whole or in part; under JCE, simple knowledge could suffice. However, the use of JCE thwarted the Prosecutions previous efforts to portray Milosevic as the spider at the center of the web, who acted in concert with the Bosnian Serb leadership to plan, prepare, and orchestrate atrocities.