Lifting Immunity, Resolving Impunity? The Case for an Immunity Exception in a Future Crimes Against Humanity Convention

Posted on September 24, 2025 by Mark Kersten

Mayya Chaykina join JiC for this post on the issue of immunities in the proposed Crimes Against Humanity Convention. Mayya is a master’s student in law at Sciences Po Paris. Her work focuses on international criminal law, mass atrocity prevention, and international human rights mechanisms. 

The UN General Assembly (Photo: Mark Kersten)

In 2024, the United Nations Sixth Committee adopted a resolution setting dates for the negotiation of an international convention on the prevention and punishment of crimes against humanity. Future negotiations will build on the current Draft Articles on Prevention and Punishment of Crimes Against Humanity, adopted by the International Law Commission (ILC) in 2019. Several modifications to the draft text have already been proposed. Among them, Amnesty International has called for the lifting of immunities to be included in the convention despite opposition from certain states.

Immunity ratione materiae – immunity granted to individuals based on their official state functions – has faced increasing scrutiny. Also known as functional immunity, it extends after the official’s term is over, preventing the individual from being subject to the criminal jurisdiction of another state. In light of the groundwork laid by the draft articles, in addition to the current understanding of immunity for state officials under international law, this article will examine the case for adopting a provision confirming the exceptional lifting of functional immunity for state officials accused of crimes against humanity in the text of the convention. 

The Basis for an Exception from Immunity

The ILC has been considering the immunity of state officials from foreign criminal jurisdiction since 2007, when it first included the topic in its program at its fifty-ninth session. Draft articles on the topic have since been provisionally adopted by the Commission.  

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Posted in Crimes against humanity, Guest Posts, United Nations, United Nations General Assembly | Tagged , , , | 1 Comment

Canada and allies recognize Palestine: what does it mean, what does it change, and will real action to end atrocities and annexation follow?

Posted on September 22, 2025 by Mark Kersten
(Photo: CTV)

Amidst the atrocities, annexation efforts, and ignored warnings to stop both, it became impossible to defend the status quo. So, on 21 September 2025, Canada joined 150 other states – including erstwhile Israeli allies, France and the UK – that recognize Palestinian statehood. But what, if anything, will recognition change? On some issues, quite a bit. On others, not much. Ultimately, recognition alone cannot save Palestinian lives or end the war; only concerted and collective action can.

Canada has long insisted it supports a two-state solution. Yet it refused, until now, to actually recognize two states. Instead, it lent increasingly right-wing and anti-Palestinian governments in Israel and the United States an effective veto over Palestinian human rights, self-determination, and statehood. It has long been obvious – to advocates, states, Israelis, and Palestinians – that any proclaimed interest from Washington and Tel Aviv in working towards a two-state solution is not in good faith; it’s not kicking the can down the road, if you just kick it to the curb.

The Israeli government’s outright opposition to a prospect Palestinian state is finally obvious to Western authorities too. In announcing Canada’s recognition of Palestine, the Prime Minister’s Office accepted that “the current Israeli government is working methodically to prevent the prospect of a Palestinian state from ever being established…. It is now the avowed policy of the current Israeli government that there will be no Palestinian state.”

Recognition will have some impact inside Canada. Israel’s war on Gaza and its moves to annex the West Bank have played out in our political landscape and matter to Canadians. The government will be keenly aware of the consequences of recognizing Palestine within Canadian communities, including its electoral base. But what about the impact of recognition in the international arena and on Palestine itself?

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Posted in Apartheid, Canada, Gaza, Genocide, Israel, Palestine, United Nations, United Nations General Assembly | Tagged , , , , , , | Leave a comment

An Inversion of Pariah Status:  How Washington is undermining the UN General Assembly as a sanctuary for peace to thwart the ICC

Posted on September 16, 2025 by Mark Kersten

Victor Peskin joins JiC for this guest post on the upcoming United Nations General Assembly. Victor is an Associate Professor in the School of Politics & Global Studies at Arizona State University and a Senior Research Fellow at the UC Berkeley Human Rights Center, University of California, Berkeley. 

(Israeli PM Benjamin Netanyahu speaks at the UN General Assembly in 2024. Photo: CBC)

Next week, state representatives from around the world will mark the 80th anniversary of the United Nations Charter during the annual meeting of the UN General Assembly. The conclave of global leaders will also make headlines for (at least) two other reasons. The event marks the first time a head of state facing an international arrest warrant for atrocity crimes takes the podium in the General Assembly Hall. The September meeting also present the first time the United States has denied another head of state—and that state’s entire travelling diplomatic delegation—the right, under the UN Headquarters Agreement, to ascend the same podium by refusing to issue visas to travel to New York. 

Therein lies an unprecedented forthcoming split screen moment. Israeli Prime Minister Benjamin Netanyahu—who faces an International Criminal Court arrest warrant on charges of committing war crimes and crimes against humanity in the ongoing Gaza war—will make use of the international megaphone granted to all heads of state during the annual General Assembly gathering. But his political adversary, Mahmoud Abbas, the moderate Palestinian Authority president in charge of administrating parts of the West Bank—and who had long pushed for an ICC investigation of the Israeli leader—will remain stuck back home in Ramallah, relegated to addressing the UN by Zoom. 

The 27-member states of the European Union have called on the U.S. to rescind its decision barring Abbas and some 80 other Palestinian officials from visiting UN headquarters. French President Emmanuel Macron—who is poised, along with Canada, Australia, and Britain, to recognize Palestinian statehood at a 22 September conference about a two-state solution—has denounced the Trump administration’s efforts to bar Abbas’ entry to the U.S. as “unacceptable.”Meanwhile, Abbas has launched a diplomatic blitz in the hopes U.S. Secretary of State Marco Rubio will reverse the visa ban. It remains possible that the one-day conference and the General Assembly meeting itself could be moved to Geneva, as occurred in 1988 after the U.S. denied a visa to Palestinian Liberation Organization Chairman Yasser Arafat. Switching the venue might be more likely if, as The Guardian speculates, the Trump administration also uses anti-terrorist laws to bar representatives from Iran, Sudan, Brazil, and Zimbabwe from travelling to New York.

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Posted in Gaza, ICC Prosecutor, ICC Sanctions, International Criminal Court (ICC), Israel, Palestine, Palestine and the ICC, United Nations, United Nations General Assembly, United States | Tagged | Leave a comment

Is this Justice? Prosecuting the Ghost of Joseph Kony at the International Criminal Court

Posted on September 11, 2025 by Mark Kersten

We sat beneath the mango trees at a hotel in Gulu, northern Uganda, the epicenter of a horrific civil war between the Lord’s Resistance Army (LRA) and Ugandan government forces. It was 2011 and the three decommissioned LRA commanders asked me a simple question: did I want to travel to the Democratic Republic of Congo to visit the rebel group’s leader, Joseph Kony? 

This week, the International Criminal Court (ICC) held hearings to confirm the charges of war crimes and crimes against humanity against him, twenty years after an arrest warrant for Kony was issued. Many people will be watching, including some survivors of LRA violence. But Kony won’t be, not in person. The hearings are the first time that the ICC has held in absentia proceedings against a wanted suspect. At a time when the beleaguered Court is under attack, could this latest development bring a sense of justice to victims of LRA violence? Or is the ICC chasing a dead man to satisfy its own interests?

I hold a special place in my heart for Uganda and its people. I have visited numerous times and worked closely with national and international prosecutors on addressing international crimes committed in the country. As a PhD student, I spent three months in the country studying the war, efforts to end it via peace negotiations, and the desire of many to see perpetrators – from both the LRA and the Government of Uganda – held accountable for countless atrocities, including against children. In 2016, my book, which covered the ICC’s intervention into northern Uganda, was published.

It was as a PhD student that I met three former LRA commanders, to interview them about their time in the rebel group. Like many others in northern Uganda, they saw Kony as a messianic figure, a medium to various spiritual forces. Their conviction of Kony’s powers was genuine. They also told me something else: if Kony died, no one would know.

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Posted in International Crimes Division (Uganda), International Criminal Court (ICC), Lord's Resistance Army (LRA), northern Uganda, Uganda | Tagged , , | 2 Comments

Vindicating a “Justice Murder”: How a State Agent Wrongfully Convicted on Terrorism Charges won his case 

Posted on September 10, 2025 by Mark Kersten

Kerstin Bree Carlson joins JiC for this guest-post on the remarkable story of Ahmed Samsam, who was convicted on terrorism charges in Spain, only to win his case after proving he was a Danish state agent. Kerstin’s current research examines terrorism trials in Denmark, France and Colombia.

Ahmed Samsam (Photo; AFP)

At a time when government overreach is threatening established liberal, democratic traditions the world over, a curious and important legal development quietly took place in Denmark. Ahmed Samsam, wrongly convicted as a jihadi terrorist in Spain in 2018, forced the Danish government to publicly recognize that he was a Danish agent.

On 2 September 2025, Samsam won his case before the Danish Supreme Court, which found that he was a Danish undercover agent, not a jihadi terrorist, and ordered the government intelligence communities to recognize him as such. Within the hour, the intelligence services who for years had refused to “confirm or deny” knowledge of Samsam claimed him as their own. They are now working with him to clear his conviction in Spain. 

Samsam’s case has many of the trappings of a best-selling conspiracy/thriller novel. It is well known in Denmark but not beyond the country’s borders. The case is notable for the ways that it reveals flaws in Denmark’s human rights protections in cases that involve the state’s own misdeeds. It is also an opportunity to revisit serious legal flaws in cases related to foreign fighters in justice systems across Europe.

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Posted in Denmark, Guest Posts, Islamic State, Spain, Syria, Terrorism | Tagged , | Leave a comment

Canada helped build the ICC. Now its silence is helping destroy it.

Posted on September 8, 2025 by Mark Kersten
The International Criminal Court (Photo: Mark Kersten, 2024)

The response was swift, until it wasn’t. Reacting to U.S. sanctions against International Criminal Court (ICC) officials – including Canadian judge Kimberly Prost – Canada’s Ambassador to the United Nations Bob Rae called the move “disgraceful”. He added that “attacks” on ICC staff “by Russia, Israel, and the US are intended to weaken and intimidate the international system.”  And then Ambassador Rae’s tweet was deleted. Beyond a meagre statement expressing confidence in Prost but nothing about the attacks against her or the Court, Ottawa’s “elbows up” attitude has been replaced by a deafening and defining silence, one has come to characterize Canada’s attitude towards the ICC. 

Will Canada finally stand up for the court it helped create? Will it defend its diplomats? Or is silence in the face of American attacks the cost of Ottawa’s efforts to placate Donald Trump?

Let’s take a few steps back, first to 2020 and then late-2024.

This is not the first time that the U.S. has sought to destroy the ICC. Doing so is something of a Republican Party pastime. American disdain for the institution is purportedly due to the Court potentially investigating American citizens for alleged war crimes committed in Afghanistan and the ICC’s warrants for Israeli leaders over atrocities perpetrated in Gaza. In truth, American disdain for the ICC has always been about control, and Washington’s unrelenting insistence that it determine what the Court can and cannot do.

In 2020, the Trump administration issued sanctions against then ICC-Prosecutor Fatou Bensouda and threatened to do so against others, including Canadian Deputy Prosecutor James Stewart.

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Posted in Afghanistan, Canada, Donald Trump, ICC Prosecutor, ICC Sanctions, International Criminal Court (ICC), Israel, Palestine and the ICC, United States | Tagged , , | Leave a comment

Catching perpetrators to prosecute them abroad: could piecemeal justice contribute to comprehensive accountability for atrocities committed in Gaza?

Posted on August 11, 2025 by Mark Kersten
Graffiti in Vancouver, Canada (Artist: Tabs / Photo: Mark Kersten)

They thought they’d enjoy the festival, maybe a waffle and a Hoegaarden. Instead, the two Israeli soldiers were detained and questioned by Belgian police after facing allegations of war crimes stemming from the Hind Rajab Foundation, an organization set up to track soldiers allegedly implicated in atrocities committed during their service in Gaza.

While no allegations against the Israeli soldiers have been tested, let alone proven, in court, their detention is part of a pattern: at least twelve complaints over alleged war crimes have reportedly been issued in Brazil, Thailand, the Netherlands, Serbia, Ireland, Cyprus, and elsewhere. Is detaining suspects when they travel the future of international justice in Gaza and elsewhere? With bodies like the International Criminal Court (ICC) under siege and limited in their capacities, it is certainly a part of it.

It is troubling enough that perpetrators of war crimes, crimes against humanity, and genocide are rarely held accountable. It is made that much more offensive when those suspected of committing such atrocities enjoy the privilege of freely traveling abroad. In some instances, however, those moments also offer opportunities to hold perpetrators of atrocities to account.

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Posted in Canada, Crimes against humanity, Gaza, Genocide, Israel, Palestine, Palestine and the ICC, Syria, Universal Jurisdiction, War crimes | Tagged | Leave a comment

Algorithms, Automation and Accountability: Imagining Responsibility for the Crimes of Machines

Posted on August 6, 2025 by Mark Kersten

The following is a guest post by Masoud Zamani is a lecturer in international law and international relations at the University of British Columbia. His research focuses on the intersection of emerging technologies and international legal accountability.

(Image by Tavis Coburn / Scientific American)

In recent years, the growing discourse on the regulation of lethal autonomous weapon systems (LAWS) has brought renewed attention to the question of individual criminal responsibility for acts committed by such systems. While theoretical debates have long grappled with whether individual criminal liability can arise in connection with the conduct of LAWS, more focused discussions on the specific modes of responsibility are now beginning to take shape— and at an accelerating pace.

International criminal law (ICL), shaped historically by a fundamentally anthropocentric orientation, has largely operated on the assumption that crimes are committed by human agents capable of intent, knowledge, and control. As such, traditional modes of individual responsibility, such as ordering, planning, instigating, aiding and abetting, and command responsibility, must now evolve to address the complexities introduced by autonomous warfare.

This post explores the current legal framework surrounding command responsibility under international criminal law and examines emerging conceptual pathways for adapting or extending existing modes of liability to account for the unique challenges posed by LAWS.

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Posted in Drones, Guest Posts, International Criminal Court (ICC), International Criminal Justice, lethal autonomous weapon systems, War crimes | Tagged | 1 Comment

To understand Genocide in Gaza and elsewhere, we need to talk about it as a process not an event

Posted on August 2, 2025 by Mark Kersten
Palestinians, including children, seeking food in Rafah, Gaza, February 2024 (Photo: Fatima Shbair/AP)

A growing consensus of international and Israeli human rights organizations, editorial boards, Israeli Holocaust historians and former Attorney Generals, as well as figures like Romeo Dallaire, have all come to the same conclusion: What is happening in Gaza is a genocide. But it is clear there remains confusion about what genocide is and how it is perpetrated, which breeds misinformation and polarization. Given the atrocities being perpetrated in Ukraine, Sudan, Myanmar and Palestine, it has never been more important to understand the nature of genocide precisely.

If I could impart one piece of knowledge from my decade-plus of researching and teaching about the topic, it would be this: Genocide is a process, not an event. That insight is critical to understand if we hope to prevent genocides and hold their perpetrators to account.

Genocide is not perpetrated instantaneously. It does not ‘just happen’. Rather, those who seek to commit genocide must prepare their population to either support violence or to turn a blind eye to it. They do so through a process of dehumanizing their target group, often through apartheid-type discrimination. They foster a narrative that the well-being of one group cannot bear the continued existence of the other, whose killing is justified by collectively reducing them to “cockroaches”, “savages”, or “terrorists”.

No genocide has ever been committed – whether it be the Holocaust, Rwanda, Srebrenica, or Gaza – without powerful actors investing tremendous political, economic and social resources into dehumanizing the people targeted by genocidal violence. The 1948 Genocide Convention’s answer to this is to explicitly oblige states to prevent genocide, not merely react to it, a fact too often overlooked.

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Posted in Canada, Darfur, Gaza, Genocide, Holocaust, Holodomor, Indigenous Peoples, International Criminal Court (ICC), Israel, Palestine, Rwandan Genocide, Sudan, Yazidi Genocide | Tagged , , , , | 2 Comments

How understanding atrocity perpetrators requires and benefits from a multi-angled approach – A response to commentaries and critiques 

Posted on July 17, 2025 by Mark Kersten

The following article by Alette Smeulers is a response to the contributions to JiC’s recent symposium on Alette’s book, Perpetrators of Mass Atrocities Terribly and Terrifyingly Normal?. Alette is a professor at the University of Groningen in the Netherlands. Her research takes an inter- and multidisciplinary approach, focuses on on the causes and perpetrators of international crimes and terrorism, as well as the international criminal justice systems dealing with these crimes. Other contributions to the symposium can be found here.

(‘Past.Present.Future’ Artwork by Milana Rozovskaja)

I’d like to start by thanking all the contributors for reading the book, Perpetrators of Mass Atrocities – Terribly and Terrifyingly Normal? and for their blogposts, which were enriching and thought provoking. Also, many thanks to Mark Kersten and Aleja Espinosa for providing room and space for the book symposium.

The comments were overwhelmingly positive. Several contributors stressed or added important insights: Mirza Buljubasic emphasized the role of society in normalizing crimes; Mina Rauschenbach’s contribution centered around the moral agency of perpetrators; Bart Nauta discussed the traumatized perpetrator; and Nandor Knust suggested some potential benefits for transitional justice, with which I agree and for which I am very grateful. Two contributors, Iva Vukusic and Carola Lingaas were also, in many ways, positive but clearly more skeptical about my approach. In this response I will focus on their points of critique.

Studying perpetrators of mass atrocities is done by scholars from a wide variety of disciplines, including psychology, sociology, criminology, political science, anthropology, history, genocide studies, terrorism studies, and law. It has become a very inter- and multidisciplinary endeavor. This has significant advantages, leading to a rich and thriving field with many cross fertilizations between the subdisciplines. It also has a few disadvantages, among them that what one scholar is doing does not always sit easily with how another scholar views things. 

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Posted in International Criminal Justice, International Law, Symposium Introduction - A JiC Symposium on Alette Smeulers'  "Perpetrators of Mass Atrocities Terribly and Terrifyingly Normal?, Transitional Justice | Tagged | Leave a comment