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42 IELR 26 (2026)
Crimes against Humanity and International Criminal Court

handle is hein.journals/ielr42 and id is 27 raw text is: INTERNATIONAL ENFORCEMENT LAW REPORTER - Volume 42, Issue 1 criticism. Some authors call the Statement a smash-and-grab performative intervention.9 The Dutch parliament responded to the country's decision not to sign the Letter by passing a motion calling on the Dutch government to explore the possibility of modernizing or revising treaties such as the ECHR.10 The participating countries, including Finland and the UK, aim to develop a political declaration on these issues for a future summit, potentially in May 2026. Instead of revising or amending the ECHR, which entails a lengthy and cumbersome process, another option would be to adopt a political declaration. This declaration should have the status of an interpretative declaration (rather than a protocol), thus providing further guidance on the interpretation of the ECHR in the context of asylum and immigration policy. Interpretative declarations are known in international law. The Court has stated that it has the authority to determine the validity under Article 57 ECHR (Article 64 at the time) of a reservation or, where appropriate, of an interpretative declaration.12 Such a declaration may be a way for the states to inform and 9 Andrew Forde and Alice Donald, Countdown to Chisinau: The Risk ofPoliticising the ECHR over Migration, December 19, 2025, https://www.ejiltalk.org/countdown-to-chisinau the-risk-of-politicising-the-echr-over-migration. 10 https://www.echrblog.com/2025/12/an- exceptional-ministerial-conference.html. 11 Id. perhaps even 'nudge' the Court in a certain direction. The declaration is not specified as having the status of an interpretative declaration.13 However, it is doubtful whether this way the problem raised in both the Letter and the Statement could be solved, and the states involved in the process will be satisfied. Although neither the Letter nor the Statement are addressed to the ECtHR, it is clear that the Court is the primary target audience and that the nine states intend to initiate a change that is not yet clearly defined. Yet, governments must avoid sending the message that if something is politically difficult in Europe, they simply lower standards to make their lives easier. To do so is to risk doing permanent damage to the ECHR system for the sake of uncertain outcomes in respect of immigration control.14 Despite so much bad news on Europe's inability to curb immigration, the good sign is the decision adopted by the CoE Committee of Ministers to set the debate on these problems within the framework of this organization and in the context of the ECHR. 12 ECtHR, Be/i/os n. Switkerland (Application no. 10328/83), judgment of 29 April 1983, https://hudoc.echr.coe.int/eng?i-001-57434. 13 https://www.echrblog.com/2025/12/an- exceptional-ministerial-conference.html. 14 Andrew Forde and Alice Donald, supra. 1 Professor Plachta specializes in criminal law and international criminal law. He has authored numerous publications on a wide range of VII. CRIMES AGAINST HUMANITY AND INTERNATIONAL CRIMINAL COURT ICC Prosecutor Opens Investigation into Crimes in El-Fasher By MichaelPlachtal On November 3, 2025, the Office of the Prosecutor of the International Criminal Court (ICC) announced investigations into crimes allegedly committed in Darfur since the outbreak of hostilities in April 2023.2 The Office expressed its profound alarm and deepest concern over recent reports originating from El-Fasher, which have found that mass killings, rapes, and other crimes were allegedly committed during the course of the Rapid Support Forces' (RSF) attacks. These atrocities are part of a broader pattern of violence that has afflicted the entire Darfur region since April 2023. The Office warned that such acts may constitute war crimes and crimes against humanity under the Rome Statute. The legal basis for the investigations by the ICC in Sudan, which is not a state party to the ICC, is the UN Security Council (UNSC) problems concerning law enforcement and international cooperation in criminal matters. He currently teaches criminal law and European criminal law at the University of Security in Poznan, Poland. 2 https://www.icc-cpi.int/news/statement-icc- office-prosecutor-situation-el-fasher-north- darfur. 26