International Arrest Warrants in Ongoing Conflicts

The Legal Framework of Criminal Law Interventions by External Actors

The project analyzes the factual and legal implications of international arrest warrants issued during ongoing hostilities. It points out the potential conflicts between the various international obligations of external actors, especially the ICC, and attempts to reconcile these conflicts with the goals of criminal prosecution. Finally, the possibility of the reception of this norm conflict within the framework of the Rome Statute and the UN Charter will be analyzed.
Project category: Doctoral thesis
Organisational status: Individual research project
Project time frame: Beginning of project: 2008
End of project: 2013
Status of Project: completed
Project language(s): German
Legal system(s): International criminal law

Head(s) of project

The project takes a normative approach to the (regrettably) often termed “justice vs. peace dilemma,” better described as a conflict between the need (or will) to use criminal law to punish perpetrators of international crimes and the need to end hostilities, thus preventing combat and the commission of new crimes. The project aims to establish normative criteria (with a focus on public international law in general) to resolve the above-mentioned conflict where the political conditions impede the simultaneous pursuit of criminal prosecution and the implementation of peace agreements. The newly created International Criminal Court (ICC) will be the focus of the project since in two of the situations – Northern Uganda and Darfur (Sudan) – this conflict occurs, inter alia, due to the ongoing nature of the violence. The arrest warrants issued against the Ugandan rebel leader, Joseph Kony, and the sitting president of the Republic of Sudan, Omar Al-Bashir, are the source of contention in the current political and legal debate. One aim of the dissertation is to assess which international obligations are pertinent to the conflict arising from the issuance of these international arrest warrants. Even a cursory review of relevant sources reveals conflicting obligations and rights. On the one hand, international conventions (such as Art. IV Genocide Convention) and customary international law (e.g., punishment of crimes against humanity) set out an obligation or at least a right to punish the main perpetrators, while on the other hand, international law (especially the UN Charter, a number of human rights treaties, as well as the concept of “Responsibility to Protect”) favor the prevention of future crimes and hostilities.

The primary aim of the dissertation is to evaluate whether international law (either in abstracto or in concreto) favors one of these legal obligations or rights. Therefore, the project will focus on the concept of jus cogens and Article 103 of the UN Charter and will address the question of the legal relevance of the concept of “Responsibility to Protect” in order to determine whether there is a hierarchy of norms in international law and, if there is, whether the hierarchy is pertinent to the cases examined in the dissertation. It will also address other aspects of the theory of conflicts of norms.

Based on this analysis, the dissertation proceeds with the procedural consequences of the anticipated finding that there is no valid claim for the primacy of the criminal law approach in international law. For this reason, the project will address the concrete decisions that were and will be taken in the cases of Northern Uganda and Darfur (Sudan). It evaluates the possibilities de lege lata of the Office of the Prosecutor and the Pre Trial Chamber of the ICC to take into account the normative indicators when deciding if an arrest warrant should be issued (Art. 57 III (a) Rome Statute) or withdrawn or an investigation opened or closed (Art. 53 II (c), III (a)-(b) Rome Statute). It provides an analysis of the ability of the UN Security Council to act under Article 16 of the Rome Statute or even solely on the basis of Chapter VII of the UN Charter. The dissertation will conclude by addressing the legal consequences of the decisions for future national or international criminal proceedings (especially the doctrine of abuse of process) and will give a short overview on the feasibility of possible compromises.

For this purpose, international conventions, national and international jurisprudence, literature, and written media sources will be analyzed. This will be supplemented by an analysis of non-binding international documents and governmental statements in order to explore the content of the relevant customary international law based on a “modern positivist” approach.

Publications (selection)

  • Last update: 14 December 2017
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