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.

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.