To Prosecute or Not to Prosecute: Maduro’s Indictment, Head-of-State Immunity, and the United States’ Instrumentalisation of Non-Recognition

Posted on January 6, 2026 by Mark Kersten

Mayya Chaykina join JiC for this post on the issue of head of state immunity and the prosecution of Venezuela’s Nicolás Maduro. 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. 

Maduro in court in New York, on 5 January 2026 (Image: Jane Rosenberg)

After months of threats of using armed force against the Government of Venezuela, United States forces capturedVenezuelan president Nicolas Maduro and his wife on January 3, 2026. Officials have claimed that the operation was in support of the recently unsealed indictment, which charges Maduro with “narco-terrorism conspiracy”, “cocaine importation conspiracy”, and “possession of machineguns and destructive devices”. 

The legitimacy of the criminal charges, however, remains in question. Under the doctrine of immunity ratione personae, or head-of-state immunity, certain officials enjoy immunity from the exercise of foreign criminal jurisdiction for all acts committed in both a private and official capacity during their time in office. Acknowledged by the International Law Commission (ILC) and the International Court of Justice (ICJ), head-of-state immunity applies to a troika consisting of Heads of State, Heads of Government, and Ministers for Foreign Affairs. 

Maduro will undoubtedly raise such an objection to the prosecution. On the other hand, the prosecution will likely argue that, given the United States’ non-recognition of Maduro as a legitimate leader, he is not entitled to head-of-state immunity. This analysis will consider the tension between these two questions, ultimately demonstrating that Maduro is entitled to immunity under the current international legal framework and the aims of the immunity doctrine. 

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Posted in Guest Posts, International Law, United States, Venezuela | Tagged , | 6 Comments

The ICC, Trump, and Venezuela: A collision course and Catch-22 over who prosecutes Nicolás Maduro?

Posted on January 5, 2026 by Mark Kersten

Many are wondering: could the International Criminal Court (ICC) conclude that the conduct of the United States in its attacks on Venezuelans, including suspected drug traffickers and other civilians, warrant investigation and prosecution as war crimes? But there’s another ICC-related question that deserves attention: what if the Court has a sealed arrest warrant for ousted president Nicolás Maduro? 

The ICC continues to have jurisdiction over Venezuela. In 2018, a group of states – Argentina, Canada, Colombia, Chile, Paraguay, and Peru – jointly referred the situation in Venezuela to the Court. Two years later, Venezuela itself requested that the ICC investigate alleged international crimes perpetrated on its territory. The focus of the subsequent investigations by the Office of the Prosecutor (OTP) has been on crimes against humanity committed in the country, with a special focus on mass and arbitrary detention of Maduro’s opponents. Other crimes against humanity have been detailed, most recently by the Independent International Fact-Finding Mission on the Bolivarian Republic of Venezuela, and include “killings, arbitrary detentions, torture and sexual violence targeting protesters and opponents of President Maduro.”

For years now, and in line with the principle of complementarity, the ICC worked with Venezuelan officials in the hopes that national authorities would investigate and prosecute those responsible for these alleged crimes against humanity themselves. Chief Prosecutor Karim Khan visited Caracas on multiple occasions and even appeared on television with Maduro in 2024. The Court’s efforts came to naught: no one has been prosecuted for crimes against humanity committed in Venezuela. Impunity reigns.

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Posted in Uncategorized | 8 Comments

Violating international law to get rid of dictators is alluring but wrong – and dangerous

Posted on January 3, 2026 by Mark Kersten
Scenes in Caracas following American strikes in the Venezuelan capital

There is an alluring idea that anything – including illegal action – should be taken to protect people from dictators. It is that reasoning that some are tapping into to insist that American military strikes on Venezuela and the kidnapping of President Nicolas Maduro are welcome. Legal or not, the man responsible for countless atrocities in Venezuela is gone. Similar thinking has been applied to ousting the Iranian leadership, including Ayatollah Ali Khamenei. While no one should sympathize with the likes of Maduro or Khamenei, both of whom are cruel perpetrators of atrocities, this view is indefensible. It is legally and morally wrong. More than that, it is dangerous.

Given U.S. President Donald Trump’s open disdain for the Iraq War – he called it a “big, fat mistake” that won’t be repeated – the parallels between American action in Venezuela to that of Iraq in 2003 are staggering. Back then, the Republican administration of George W. Bush lied by claiming that weapons of mass destruction were present in Iraq to justify a military intervention. Claiming it was engaging in “pre-emptive self-defence”, Washington proceeded despite a lack of approval by the United Nations Security Council. At the time, many well-intentioned people believed that Iraqi dictator Sadaam Hussein, who had previously gassed thousands of civilians in Kurdistan to death, needed to be removed, regardless of whether international law permitted it or not.

What ensued wasn’t just the removal and execution of Hussein, but an illegal war, a bungled occupation marred by human rights abuses and war crimes, and a decision to mass-relieve the Iraqi military which later birthed the Islamic State terrorist group. Meanwhile, the cost of the war in dollars reached trillions. Its cost in death and destruction was even greater. America’s reputation has never recovered. Today, no respected international lawyer would claim the invasion of Iraq was legal or wise.

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Posted in International Law, Iraq, Libya, Ukraine, United Nations, United States, Venezuela, War crimes | Tagged , , , , , , | 3 Comments

After the Trial Ends: Why Residual Mechanisms Deserve Our Attention

Posted on December 22, 2025 by Mark Kersten

The following is a guest-post on the afterlife of international criminal tribunals, written by Maria Elander, Rachel Killean and Mark Drumbl. Maria is an Associate Professor and the Associate Dean, Research and Industry Engagement in the La Trobe Law School. Rachel is a Senior Lecturer and the Associate Dean (Student Life) at the University of Sydney School of Law. Mark is the Class of 1975 Alumni Professor of Law at Washington and Lee University.

Judges at the Special Tribunal for Lebanon study a model crime scene from the killing of former Lebanese Prime Minister Rafic Hariri (Photo: United Nations)

When the Special Tribunal for Lebanon (STL) closed its doors in 2023, the tribunal faced a stark problem: without money to maintain its servers or staff, its entire digital presence — with thousands of sensitive legal records, including audiovisual materials, transcripts, and filings — was at risk of disappearing. With its website scheduled for shutdown and no residual mechanism to safeguard its archives, the STL’s evidentiary and historical record hung in the balance.

Stanford University’s Virtual Tribunals initiative stepped in. It worked with the STL to urgently preserve and transfer more than 15,000 files into the Stanford Digital Repository. This task was completed earlier this year. The rescue ensured storage and continued public access to materials that might otherwise have been lost.

Yet the solution raises questions: After the closure of a temporary court, how should sensitive documents like legal records be managed? Where, and by whom? These are not just administrative determinations but deeply political questions that relate to the roles of affected communities and national stakeholders in the justice process.

How to manage the archive also ties into a larger question: What happens when atrocity tribunals end? Over the last year or so, we have been exploring this question, separately and together. Following our recent experience of presenting these ideas at the International Association of Genocide Scholars’ annual conference, we are hoping to assemble a group of scholars to explore these issues further, and will be publishing a call for papers in the new year. Here, we set out some of our current musings, in the hope that it might spark thoughts in others.

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Posted in Central African Republic (CAR), Chambres Africaines Extraordinaires (CAE), Extraordinary Chambers in the Courts of Cambodia (ECCC), Guest Posts, International Criminal Justice, International Criminal Tribunal for Rwanda (ICTR), Kosovo Relocated Specialist Judicial Institution (KRSJI), Kosovo Specialist Chambers, Lebanon, Sierra Leone, Special Court for Sierra Leone, Special Court for SIerra Leone (SCSL), Special Criminal Court, Special Tribunal for Lebanon | Tagged , , | Leave a comment

More of the same, or changes on the way? For the first time in a decade, the Canadian War Crimes Program sheds light on what it has been up to.

Posted on December 18, 2025 by Mark Kersten
People in Gaza flee ongoing violence (Photo: Reuters)

Atrocities in Sudan, Gaza, and Ukraine raise a question: do people in countries far away, like Canada, have a role in addressing the suffering of others?

While these conflicts can appear remote, affecting only distant strangers, the horrors they produce increase the chances that not only victims, but also perpetrators, seek to enter Canada. It’s unsurprising, then, that Canadian authorities are busier than ever in identifying suspected perpetrators of war crimes, crimes against humanity, and genocide. Yet Canada continues to deport perpetrators without any guarantee that they’ll be subsequently held accountable. Ottawa needs to put its money where its mouth is and use its courts to prosecute alleged war criminals.

The last report of Canada’s Crimes Against Humanity and War Crimes Program  was released a decade ago. Back then, authorities suspected that some 200 perpetrators of international crimes resided in Canada. Ottawa’s goal was to prevent the entry or to deport suspects without any guarantee that they’d be subsequently prosecuted for their alleged crimes. Believing that trials were too expensive, the government was explicit: prosecuting perpetrators in Canadian courts under the Crimes Against Humanity and War Crimes Act was a last resort.

For the first time since 2016, we have a snapshot into what the War Crimes Program is doing, thanks to written questions submitted to the government by Conservative Member of Parliament Pierre Paul-Hus. The answers tell an important story.

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Posted in Ahmed Eldidi, Canada, Canadian War Crimes Program, Gaza, Hamas, International Criminal Justice, Islamic State, Israel, Palestine, RCMP Structural Investigation, Structural Investigation, Ukraine, Universal Jurisdiction, War crimes | Tagged | 6 Comments

The ‘Pearce case: Is the Netherlands providing justice for crimes against migrants and refugees in Libya?

Posted on December 9, 2025 by Mark Kersten

The following is a guest post by Cristina Orsini, a Senior Programmes Advisor with Lawyers for Justice in Libya, contributing to litigation and advocacy on human rights violations and international crimes. Cristina is also a PhD Researcher in Law at the European University Institute, exploring international criminal law and colonialism.

A migrant detained in one of Libya’s detention facilities (Photo: Reuters)

Since 3 November 2025, an Eritrean national known as ‘Walid’ has been standing trial in Zwolle, the Netherlands, for allegedly leading a criminal organisation dedicated to smuggling migrants, refugees, and asylum seekers through Libya. The case, known as ‘Pearce’, is widely seen as ‘extraordinary’ and ‘unique’, and is being followed closely in the Netherlands and beyond. Done right, this case could provide a measure of justice to many migrants, while setting a critical precedent for a broader reckoning with entrenched systems of abuse. Watching the trial unfold after years of documenting crimes against migrants in Libya with Lawyers for Justice in Libya (LFJL), however, I wonder whether Dutch authorities are letting this chance slip away. 

In one sense, the trial is truly extraordinary, as it is extremely rare for migrants who have experienced horrific human rights violations in Libya to have access to any justice. If some of them can now hope for acknowledgment, accountability, and some compensation, it is because Dutch authorities proactively pursued this case in the first place, collecting hundreds of testimonies in the process. They are also providing interpretation and livestreaming of the trial in Dutch, English, and Tigrinya, making it accessible to affected communities and the wider public.  

Yet, while the trial may be unique, the accused’s actions are not. The experiences recounted by Walid’s survivors are sadly commonplace in Libya, where the exploitation of migrants has become an integral part of the country’s conflict economy (with trafficking already accounting for 3.4 percent of Libya’s GDP by 2015). In this context, by focusing on human smuggling charges, Dutch prosecutors are missing the larger picture: the exploitative, systematic and widespread nature of the crimes committed against migrants in Libya.  

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Posted in Human Smuggling, Human Trafficking, Libya, Migration, Refugees, The Netherlands | Tagged , , | 1 Comment

Signs of resilience amidst troubling times in The Hague: Some thoughts on the good and the bad from this year’s Assembly of States Parties

Posted on December 4, 2025 by Mark Kersten
ICC President Tomoko Akane speaks at the ASP (Photo: Mark Kersten)

“We will continue our work undeterred.”

That was the message from senior staff and prosecutors at the yearly Assembly of States Parties (ASP) of the International Criminal Court. While admitting that times are difficult, ICC officials repeatedly emphasized that their resolve is unwavering and that, as much as possible, it is business as usual. Member states of the Court were likewise at pains to demonstrate that things were almost normal and offered what appeared to be a welcome and general consensus that the ICC was worthwhile defending.

But things are far from normal for and at the Court. What follows are some reflections of this year’s ASP – both the bad and the good.

While this year’s Assembly included multiple indications that most member-states are willing to back the ICC, the Court still faces grave, potentially existential, challenges on multiple fronts. American sanctions against the institution have upended the lives of multiple staff and judges. The effects cannot be understated. According to one sanctioned judge, French national Nicolas Guillou, “these sanctions affect every aspect of my daily life… Placing people under sanctions plunges them into a state of constant anxiety and powerlessness, with the aim of discouraging them.” Another, Kimberly Prost of Canada, has spoken about the psychological, emotional, and practical toll of the sanctions against her, noting that “it cripples you in our modern world.”

Neither the European Union nor those states whose citizens have been targeted, such as Canada, have invoked laws that would protect their ICC staff from these consequences. There is also the real possibility that the institution as a whole will come under sanctions for doing nothing more than fulfilling its mandate. If that comes to pass, it could sabotage the Court’s ability to fulfil its basic functions.

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Posted in Argentina, Assembly of States Parties, Cybercimres, Germany, ICC President, ICC Prosecutor, ICC Sanctions, International Criminal Court (ICC), Israel, Libya, Palestine, Palestine and the ICC, Ukraine, Venezuela | Tagged , , , , , | 2 Comments

A litmus test for commitment to international law: Germany needs to speak up and protect the ICC

Posted on October 21, 2025 by Mark Kersten

The following is a guest-post by Maxine Rubin on the relationship between Germany and the International Criminal Court. Maxine is a Research Fellow and the Editor of Africa Spectrum, at the German Institute for Global and Area Studies. She has a PhD from the University of Cape Town.

How does a state recover its international image after perpetrating a genocide? Germany’s approach to this quagmire has been to commit to the rule of law and to international law. In line with this, Germany played a central role in the negotiations to create the International Criminal Court during the 1990s. Since the ICC began operations in 2002, Germany has been the second highest financial contributor and a consistent supporter of the Court. Given this, and the dire need for unequivocal commitment to a rules-based order, why is Berlin’s support for the ICC faltering when the Court needs it most?

Support from the ICC’s members is more important than ever. The Court faces extensive sanctions from the US, as well as withdrawals from Mali, Burkina Faso, Niger, and Hungary. In many ways, Germany presents itself as a consistent supporter of the ICC. In the past few months, Berlin noted its regret regarding the US sanctions on the Court and played a central role in the amendments proposed to strengthen the ICC’s jurisdiction over the crime of aggression at the ICC’s recent Review Conference. Germany provides roughly 13% of the Court’s annual budget and, until now, there has always been a German judge on the bench. Supporting the ICC is a manifestation of Germany’s commitment to the rule of law – a commitment that shapes Germany’s efforts to redress the atrocities it committed during WWII and the Holocaust.

Germany also made another commitment in the aftermath of the Holocaust: to ensure the security of the state of Israel. Protecting Israel’s security is considered Germany’s Staatsräson (reason of state or raison d’etat), as former Chancellor Olaf Scholtz stated in the wake of the 7 October 2023 attacks on Israelis by Hamas militants: “our responsibility that grew out of the Holocaust makes it our everlasting task to stand up for the existence and security of the State of Israel.” Consequently, when the ICC’s Office of the Prosecutor announced the arrest warrant for the Israeli Prime Minister Benjamin Netanyahu roughly in 2024, Berlin confronted a dilemma between its post-WWII commitments. 

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Posted in Germany, Guest Posts, ICC Prosecutor, International Criminal Court (ICC), International Criminal Justice, Israel, Palestine, Palestine and the ICC | 1 Comment

We need to talk about the “International Stabilization Force”: Canada and others say they’ll support a military intervention to ‘enforce peace’ and protect civilians in Gaza

Posted on October 15, 2025 by Mark Kersten
Displaced civilians return to the North of the Gaza Strip (Photo: Mahmoud Issa/Reuters)

As the first stage of the peace plan for Gaza takes shape amidst reported breaches of the fragile agreement between Hamas and Israel, a critical question remains: will military forces be used to secure Gaza?

While Canada announced its recognition of Palestine at last month’s United Nations General Assembly, Prime Minister Mark Carney made a potentially far more consequential announcement. During an event in New York, Carney shared that Canada was willing to participate in a multilateral mission to “enforce peace” in Gaza. Is Canada preparing to send military forces to stabilize the enclave and prevent atrocities? If so, is it a good idea?

This is not mere talk: leaders don’t raise the prospect of military interventions unless there are concrete plans in the making. Carney’s announcement follows the New York Declaration, which calls for “the deployment of a temporary international stabilization mission” to protect Palestinian civilians, dismantle Hamas, and offer security guarantees for Palestine and Israel, “including monitoring of the ceasefire and of a future peace agreement.” Point 15 of the Trump administration’s peace plan likewise calls for an “International Stabilization Force” that would be Arab-led and offer a “long-term internal security solution” for Gaza.

This is unprecedented territory: while Canada was involved in fighting ISIS, never before has it contemplated participating in a multilateral force to protect civilians from a terrorist group and an ostensible ally waging an increasingly acknowledged genocide of Palestinians. If it goes ahead, would intervention protect peace and Palestinians?

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Posted in Afghanistan, Canada, Gaza, Israel, Palestine, Peace Negotiations, Peace Processes, Peacebuilding, Responsibiltiy to Protect (R2P), United Nations | Tagged , , , , , , | Leave a comment

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