Introduction
International criminal law is an autonomous branch of law which deals with international crimes and the courts and tribunals set up to adjudicate cases in which persons have incurred international criminal responsibility. It represents a significant departure from 'classical' international law which was mainly considered law created by states for the benefit of states, but tended to ignore the individual as a subject of the law. International criminal law has developed considerably in the last decade and a half, resulting in a complex and re-invigorated discipline.
In this regard The International Criminal Court ushers in a new era in the protection of human rights. The ICC will prosecute genocide, crimes against humanity and war crimes when national justice systems are either unwilling or unable to do so themselves. Scholars review the history of international criminal prosecution, the drafting of the Rome Statute of the International Criminal Court and the principles of its operation, including the scope of its jurisdiction and the procedural regime. It also addresses the difficulties created by US opposition, and analyses the various measures taken by Washington to obstruct the Court.
The Statute is a comprehensive international treaty in which international criminal law has been uniformly codified and as such helps to consolidate the rule of law in international relations. It is a monumental achievement in the field of international legal policy that individuals who have transgressed their obligations to the international community as a whole may be held responsible by an independent international judicial institution. The ICC thus symbolizes jurisdiction exercised on behalf of the community of nations.
General principles of International Criminal Law
International criminal law (henceforth: ICL) is a body of international rules designed both to proscribe certain categories of conduct (war crimes, crimes against humanity, genocide, torture, aggression, terrorism) and to make those persons who engage in such conduct criminally liable. They consequently either authorize states, or impose upon them the obligation, to prosecute and punish such criminal conducts. ICL also regulates international proceedings before international courts and tribunals, for prosecuting and trying persons accused of such crimes.
The set of rules regulating international proceedings before international criminal courts and tribunals that is procedural criminal law governs the action by prosecuting authorities and the various stages of international trials.
ICL is a branch of public international law. The rules making up this body of law emanate from sources of international law (treaties, customary law, etc.).1 Hence, they are subject, among other things, to the principles of interpretation proper to that law. However, one should not be unmindful of some unique features of ICL.
1. First, ICL is a relatively new branch of international law. The list of international crimes, that is of the acts for whose accomplishment international law makes the authors criminally responsible, has come into being by gradual accretion.
2. Furthermore, ICL is still a very rudimentary branch of law. The gradual broadening of substantive criminal law has been a complex process. Among other things, when a new class of crime has emerged, its constituent elements (the objective and subjective conditions of the crime, or, in other words, actus reus and mens rea) have not been immediately clear, nor has any scale of penalties been laid down in international rules. This process can be easily explained. Tree main features of the formation of ICL stand out.
The first is that, for a long time, either treaties or (more seldom) customary rules have confined themselves to prohibiting certain acts (for instance, killing prisoners of war or bombing civilians). These prohibitions were, however, addressed to states, not directly to individuals: belligerent Powers were legally obliged to prevent their officials (or, more generally, their nationals) from committing the prohibited acts. It followed that, if any such act was performed, the state to which the individual belonged was responsible under international law vis-à-vis the state of which the victims were nationals. Gradually, by bringing to trial before their courts enemy servicemen who had breached international rules of warfare, states made individuals directly and personally accountable: gradually, state responsibility was either accompanied or replaced by individual criminal liability. When this occurred, the inference became warranted that international customary or treaty rules addressed themselves not only to states but also to individuals, by criminalizing their deviant behavior in time of war. However, this criminalization was insufficient and inadequate: international rules did not provide for either the objective or subjective requirements of the crimes or for the criminal consequences of the prohibited conduct; in other words, they did not lay down the conditions for its criminal repression and punishment.
It follows that international law left to national courts the task of prosecuting and punishing the alleged perpetrators of those acts. As a consequence, municipal courts of each state applied their procedural rules (legal provisions on jurisdiction and on the conduct of criminal proceedings) and rules on ‘the general part’ of substantive criminal law; that is, on the definition and character of the objective and subjective elements of crimes, on defences, etc. Among other things, very often national courts, faced with the indeterminacy of most international criminal rules, found it necessary to flesh them out and give them legal precision by drawing upon their own criminal law. They thus refined notions initially left rather loose and woolly by treaty or customary law.
Finally (and this is the third of the features referred to above), when international criminal courts were set up (first in 1945–7, then in 1993–4 and more recently in 1998 and 2002–7), they did indeed lay down in their Statutes the various classes of crime to be punished; however, these classes were couched merely as offences over which each court had jurisdiction. In other words, the crimes were not enumerated as in a criminal code, but simply as a specification of the jurisdictional authority of the relevant court. The value and scope of those enumerations was therefore only germane to the court’s jurisdiction and did not purport to have a general reach. Given these characteristics of the evolution of ICL, it should not be surprising that even the recent addition of the sets of written rules referred to above has not proved sufficient to build a coherent legal system, as is shown by the heavy reliance by the newly created international courts upon customary rules or unwritten general principles.
3. ICL also presents the unique characteristic that, more than any other segment of international law, it simultaneously derives its origin from and continuously draws upon international humanitarian law and human rights law, as well as national criminal law.
International humanitarian law (IHL) embraces principles and rules designed to regulate warfare both by restraining states in the conduct of armed hostilities and by protecting those persons who do not take part, or no longer take part (having fallen into the hands of the enemy), in combat. As ICL, at its origin, was chiefly concerned with offences committed during armed hostilities in time of war (war crimes), it was only natural for it to build heavily upon international humanitarian rules: violations of these rules, which normally only generated stat responsibility, gradually came to be considered as breaches of law also entailing individual criminal liability.
Furthermore, human rights law lays down the fundamental rights of suspects and accused persons, of victims and witnesses; it also sets out the basic safeguards of fair trial. In short, this increasingly important segment of law has impregnated the whole area of ICL. In addition; most customary rules of ICL have primarily evolved from municipal case law relating to international crimes (chiefly war crimes).
It follows that ICL is an essentially hybrid branch of law: it is public international law impregnated with notions, principles, and legal constructs derived from national criminal law, IHL as well as human rights law. However, the recent establishment of international criminal tribunals, and in particular of the ICC, has given a stupendous impulse to the evolution of a corpus of international criminal rules proper. It can therefore be safely maintained that we are now heading for the formation of a fully edged body of law in this area.
4. A further major feature of ICL, in particular of substantive criminal law, closely bound up with the feature to which we have just drawn attention, ought to be emphasized. The law has a two fold relationship with the general body of public international law. The first relationship is one of mutual subsidiary or support. Strikingly, most of the offences that ICL proscribes and for the perpetration of which it endeavours to punish the individuals that allegedly committed them, are also regarded by international law as wrongful acts by states to the extent that they are large-scale and systematic: they are international delinquencies entailing the ‘aggravated responsibility’ of the state on whose behalf the perpetrators may have acted. This holds true not only for genocide and crimes against humanity, but also for systematic torture, large-scale terrorism, and massive war crimes. When one of these crimes is committed by an individual not acting in a private capacity, a dual responsibility may follow: criminal liability of the individual, falling under ICL, and state responsibility, regulated by international rules on this matter. Admittedly, there is at present a tendency in the international community to give pride of place to the former category of responsibility whilst playing down the latter. Political motivations underpin this trend, chiey the inclination of states to avoid invoking the aggravated responsibility of other states except when they are prompted to do so out of self-interest or on strong political grounds. It is nevertheless a fact that, theoretically, both legal avenues remain open and may be utilized, as is shown by the proceedings for genocide recently instituted by some states before the International Court of Justice6 while at the same time genocide trials are taking place before the ICTY.
The second relationship between public international law and ICL is more complex. Two somewhat conflicting philosophies underlie each area of law. ICL primarily addresses the conduct of individuals and aims at protecting society against the most harmful transgressions of legal standards perpetrated by them (whether they be state agents or persons acting in a private capacity). It therefore aims to punish the authors of those transgressions, while however safeguarding the rights of suspects or accused persons from any arbitrary prosecution and punishment. It follows among other things that one of the mainstays of ICL is the exigency that its prohibitions be as clear, detailed, and specific as possible. This is required by a basic demand of modern legal civilization: anybody, before engaging in a particular conduct, is entitled to be aware of whether such conduct is criminally prohibited or instead allowed. Another, closely linked, fundamental requirement is that no one should be punished for conduct that was not considered as criminal at the time when it was taken. In short, any person suspected or accused of a crime is entitled to a set of significant rights protecting him from possible abuse by the prosecuting authorities.
Sources of law
Article 21 of the Rome Statute, entitled ‘Applicable law’, sets out the legal sources upon which the International Criminal Court may draw. The Statute itself cannot provide answers to every question likely to arise before the
Court and judges will have to seek guidance elsewhere, just as they do under domestic law when criminal codes leave questions ambiguous or simply unanswered.2 International law already has a general response to this problem in Article 38 of the Statute of the International Court of Justice, the international judicial organ created as part of the United Nations in 1945 with jurisdiction over disputes between sovereign States. The ICJ’s Statute de?nes three primary sources of international law: international treaties; international custom; and general principles of law recognized by civilized nations. It is accepted that the three sources are of equal value and that there is no hierarchy among them, although case law has tended to give the third source, general principles of law, a rather marginal signi?cance. According to the Statute of the ICJ, subsidiary means for determining the rules of law are judicial decisions and academic writings. Besides these enumerated sources, international legal rules can also be created by unilateral acts, such as a declaration or a reservation.
The Rome Statute creates a special regime as far as sources of law are concerned. The Statute proposes a three-tiered hierarchy. At the top is the Statute itself, accompanied by the Elements of Crimes and the Rules of Procedure and Evidence. The Rome Statute was adopted at the 1998 Rome Diplomatic Conference, whereas the Elements and the Rules were drafted by the subsequent Preparatory Commission sessions, in 1999 and 2000, and then con?rmed by the Assembly of States Parties at its ?rst session in September 2002.3Although Article 21 suggests that the Statute, the Elements and the Rules are all of equal importance, provisions elsewhere in the Statute make it clear that, in case of con?ict, the Elements (Article- 9) and the Rules (Article-51) are overridden by the Statute itself.
The second tier in the hierarchy of sources consists of ‘applicable treaties and the principles and rules of international law, including the established principles of the international law of armed con?ict’. This category rather generally corresponds to the sources of international law set out in Article 38 of the Statute of the ICJ, although the wording is quite original. There is no express mention of customary international law, but it is surely covered by the reference to ‘principles and rules of international law’.
The third tier in the hierarchy is pointed towards domestic law. Article-21 invites the Court, should it fail to resolve questions applying the ?rst two sources, to resort to general principles of law derived from national laws of legal systems of the world including, as appropriate, ‘the national laws of States that would normally exercise jurisdiction over the crime’. The reference to general principles enhances the role of comparative criminal law and corresponds, in practice, to what international judges do already before the ad hoc tribunals. The special attention given to national laws of States that would normally exercise jurisdiction is intriguing because it suggests that the law applied by the Court might vary slightly depending on the place of the crime or the nationality of the offender.
As sources of law, the Statute does not formally recognize the important body of international human rights treaties and declarations that has developed since the Universal Declaration of Human Rights in 1948, although arguably this is included in the general reference to applicable treaties and principles and rules found in Article 21(1) (b). However, Article 21(3) states that the application and interpretation of law ‘must be consistent with internationally recognized human rights’. There are obvious implications of this principle with respect to the rights of the accused.
Interpreting the Rome Statute
The Rome Statute provides little in the way of guidance as to the rules of legal interpretation that ought to be followed. As an international treaty, the governing principles are those contained in Articles 31 and 32 of the1969 Vienna Convention on the Law of Treaties. They establish, as a general rule of interpretation, that a treaty is to be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose. Article 31 of the Vienna Convention indicates that the context should include the preamble of the Rome Statute, as well as the Final Act adopted on 17 July 1998. In addition, subsequent agreements, such as the Rules of Procedure and Evidence and the Elements of Crimes, are germane to interpretation. As supplementary means of interpretation, the Vienna Convention points to the drafting history of the Statute, but only when the meaning is ambiguous or obscure, or the general rule of interpretation leads to an absurd or unreasonable result.9 But there will be those who argue that, as a source of criminal law, the Rome Statute should be subject to the rule of ‘strict construction’, or that in the event of ambiguity or uncertainty, the result more favorable to the accused should be endorsed. Such a rule is drawn from national criminal law practice. It is con?rmed at least with respect to the de?nitions of crimes, in Article 22(2) of the Rome Statute: ‘The de?nation of a crime shall be strictly construed and shall not be extended by analogy. In case of ambiguity, the de?nition shall be interpreted in favour of the person being investigated, prosecuted or convicted.’ Article 22(2) is in many respects a reaction to the large and liberal approach to construction taken by the judges of the International Criminal Tribunal for the Former Yugoslavia. The approach to the de?nitions of crimes taken in such cases as the Tadic jurisdiction decision, which quite dramatically opened up the category of war crimes to include offences committed in non-international armed con?ict, was rather clearly not within the spirit of strict construction.10Frequently, the judges of the Yugoslav Tribunal have invoked the principles of interpretation in the Vienna Convention on the Law of Treaties, which are essentially contextual and purposive in scope.11The Rome Conference was obviously unsettled by such judicial licence, and Article 22(2) is the result. The wording of Article 22(2) is precise enough to leave open the question of whether or not strict construction applies to provisions of the Statute other than those that de?ne the offences themselves. When problems of interpretation arise, the ‘contextual rule’ of the Vienna Convention and the principle of strict construction drawn from national legal practice, as well as from Article 22, may lead to very different results. The judges of the Court will have to resolve this without any substantial assistance from the Statute. Perhaps the judges recruited from the public international law ?eld will lean towards the Vienna Convention while those who are criminal law practitioners in national legal systems will favour strict construction.
4.1 Presumption of innocence
The presumption of innocence, recognized in Article 66 of the Statute, imposes the burden upon the prosecution to prove guilt beyond a reasonable doubt, a specialized application in criminal law of a general rule common to most forms of litigation, namely, that the plaintiff has the burden of proof. But the presumption of innocence has other manifestations, for example in the right of an accused person to interim release pending trial, subject to exceptional circumstances in which preventive detention may be ordered, the right of the accused person to be detained separately from those who have been convicted, and the right of the accused to remain silent during the investigation and during trial. Several of the rules that re?ect the presumption of innocence are incorporated within the Statute.
It is a fundamental principle embodied in [the presumption of innocence] which protects everybody against being treated by public officials as being guilty of an offence before this is established according to law by a competent court. Article 6, paragraph 2 [of the European Convention on Human Rights], therefore, may be violated by public officials if they declare that somebody is responsible for criminal acts without a court having found so.
4.2 Rights of the accused
During World War II, Churchill and other Allied leaders’ ?irted with the idea of some form of summary justice for major war criminals.22But, speaking of the Nuremberg trial, prosecutor Robert Jackson said that history would assess the proceedings in light of the fairness with which the defendants were treated. Only a few years later, one of the ‘successor military tribunals at Nuremberg held that Nazi prosecutors and judges involved in a trial lacking the fundamental guarantees of fairness could be held responsible for crimes against humanity. Such guarantees include the presumption of innocence, the right of the accused to introduce evidence, to confront witnesses, to present evidence, to be tried in public, to have counsel of choice, and to be informed of the nature of the charges.23And, more recently, the judges of the International Criminal Tribunal for the Former Yugoslavia, in the ?rst major ruling of the Appeals Chamber, said: ‘For a Tribunal such as this one to be established according to the rule of law, it must be established in accordance with the proper international standards; it must provide all the guarantees of fairness, justice and even-handedness, in full conformity with internationally recognized human rights instruments.’24As if there could be any doubt, the Rome Statute ensures the protection of the rights of the accused with a detailed codi?cation of procedural guarantees. Article 67 of the Rome Statute, entitled ‘Rights of the accused’, is modeled on Article 14(3) of the International Covenant on Civil and Political Rights, one of the principal human rights treaties.25The right to a fair trial is also enshrined in the Universal Declaration of Human Rights,26the regional human rights conventions,27as well as in humanitarian law instruments.28 The general right to a ‘fair hearing’ established in the chapeau of Article 67 of the Statute provides defendants with a powerful tool to go beyond the text of the Statute, and to require that the Court’s respect for the rights of an accused keep pace with the progressive development of human rights law. The case law of the Strasbourg organs, established to implement the European Convention on Human Rights, has used this residual right to a fair hearing to ?ll in some of the gaps in the more speci?c provisions.29 That the term ‘fair hearing’ invites the Court to exceed the precise terms of Article 67 in appropriate circumstances is con?rmed by the reference within the chapeau to ‘minimum guarantees’. The term ‘fair hearing’ also suggests that, where individual problems with speci?c rights set out in Article 67 do not, on their own, amount to a violation, the requirement of a fair hearing may allow a cumulative view and lead to the conclusion that there is a breach where there have been a number of apparently minor or less signi?cant encroachments on Article 67.30 The case law of international human rights tribunals has developed the notion of ‘equality of arms’ within the concept of the right to a fair trial.31 But this jurisprudence may be too restrictive, as it is rooted in national prosecutions. The ICTY Appeals Chamber has noted that, when international tribunals are concerned, the scope given to the defence under the principle of ‘equality of arms’ deserves a more liberal interpretation. According to the Appeals Chamber, ‘[i]t follows that the Chamber shall provide every practicable facility it is capable of granting under the Rules and Statute when faced with a request by a party for assistance in presenting its case. The Trial Chambers are mindful of the difficulties encountered by the parties in tracing and gaining access to evidence in the territory of the former Yugoslavia where some States have not been forthcoming in complying with their legal obligation to cooperate with the Tribunal.’ The ICTY has considered it important and inherent in the concept of equality of arms that each party be afforded a reasonable opportunity to present his or her case under conditions that do not place him at an appreciable disadvantage vis-`a-vis his opponent’. Moreover, ‘the concept of equality of arms could be exempli?ed having regard to the right to call witnesses as between the Prosecution and the Defence, as well as the duty of the Prosecution to disclose relevant material to the Defence’. The Statute also states that the hearing must be ‘conducted impartially’. According to the European Court of Human Rights, ‘impartiality’ means lack of ‘prejudice or bias’. It comprises both a subjective and an objecttive dimension: ‘[t]he existence of impartiality . . . must be determined according to a subjective test, that is, on the basis of the personal conviction of a particular judge in a given case, and also according to an objective test, namely, ascertaining whether the judge offered guarantees suf?cient to exclude any legitimate doubt in this respect’. Here, too, the case law of the ad hoc tribunals provides guidance as to how such provisions are applied in a context of international criminal justice. In one case, defendants challenged the impartiality of a judge who had, during the proceedings, been elected vice-president of her country. Dismissing the argument, the Appeals Chamber noted that she had not exercised any executive functions while the trial was underway. It said the test to be applied was ‘whether the reaction of the hypothetical fair-minded observer (with sufficient knowledge of the circumstances to make a reasonable judgment) would be that [the judge] might not bring an impartial and unprejudiced mind to the issues arising in the case’. Among the guarantees to the defendant set out in Article 67 are the right to be informed in detail of the nature, cause and content of the charge, to have adequate time and facilities for the preparation of the defence, to communicate freely with counsel of one’s choosing, to be tried without undue delay, to be present at trial, to examine witnesses, and to bene?t from the services of an interpreter if required. The International Covenant on Civil and Political Rights is more than thirty years old and, re?ecting evolving contemporary standards of procedural fairness, the Rome Statute goes somewhat beyond the minimum requirements found in Article 14(3) of the Covenant. Thus, Article 67 of the Statute ensures the right to silence, the right to make an unsworn statement, and a protection against any reversal of the burden of proof or an onus of rebuttal. In addition to persons charged with an offence, the Statute also enumerates rights that accrue to ‘persons during an investigation’and to persons about to be questioned by the Prosecutor or even national authorities for crimes within the jurisdiction of the Court.
Individual criminal responsibility
The International Criminal Court is concerned with trying and punishing individuals, not States. ‘Crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced’, wrote the Nuremberg Tribunal in 1946. This philosophy is re?ected in Article 25 of the Rome Statute. Proposals that the Court also exercise jurisdiction over corporate bodies in addition to individuals were seriously considered at the Rome Conference. While all national legal systems provide for individual criminal responsibility, their approaches to corporate criminal liability vary considerably. With a Court predicated on the principle of complementarity, it would have been unfair to establish a form of jurisdiction that would in effect be inapplicable to those States that do not punish corporate bodies under criminal law. During negotiations, attempts at encompassing some form of corporate liability made considerable progress. But time was simply too short for the delegates to reach a consensus and ultimately the concept had to be abandoned. The International Criminal Court, like its earlier models at Nuremberg, The Hague and Arusha, is targeted at the major criminals responsible for large-scale atrocities. Most of its ‘clientele’ will not be the actual perpetrators of the crimes, soiling their hands with ?esh and blood. Rather, they will be ‘accomplices’, those who organise, plan and incite genocide, crimes against humanity and war crimes. The Court can approach this issue in two different ways. The ?rst is to consider the planners and organisers as principal offenders. The District Court of Jerusalem held Adolf Eichmann to be a principal offender ‘in the same way as two or more persons who collaborate in forging a document are all principal offenders’, they may be tried as accomplices, who aid or abet the principal offenders. The Trial Chamber of the International Criminal Tribunal for the Former Yugoslavia has stated that there is a customary law basis for the criminalization of accessories or participants. Either approach will work under the Rome Statute, which in Article 25 sets out rather elaborate texts dealing with complicity or secondary liability. But, in one case, the ICTY Appeals everything described in paragraph (b). The Rome Statute does not indicate whether there is some quantitative degree of aiding and abetting required constituting the material acts involved in complicity. Here, it departs from a model that was familiar to the drafters, the 1996 ‘Code of Crimes’ of the International Law Commission, which speci?es that complicity must be ‘direct and substantial’. The judges of the ad hoc tribunals have read this requirement into the complicity provisions of their statutes, despite the silence of their statutes. The absence of words like ‘substantial’ in the Rome Statute, and the failure to follow the International Law Commission draft, may suggest that the Diplomatic Conference meant to reject the higher threshold of the recent case law of The Hague and Arusha. It is clear that mere presence at the scene of a crime, in the absence of a material act or omission, does not constitute complicity. But, where the accused has a legal duty to intervene, because of a hierarchically superior position for example, presence without any other overt act may amount to a form of participation; the failure to intervene constitutes encouragement or incitement. However, aside from the speci?c provision dealing with responsibility of commanders and other superiors, there is no criminal liability established in the Statute for mere failure to act. The Rome Statute also speci?cally provides for the incomplete or ‘inchoate’ crime of direct and public incitement to commit genocide, an offence that takes place even if there is no result. The text is derived from Article III(c) of the Genocide Convention, a provision which was controversial in 1948 and which remains so today. When the Genocide Convention was being drafted, the terms ‘direct and public’ were added, mainly at the request of the United States, in order to limit the scope of the provision. The United States was concerned that this might encroach upon the right of free speech. There were unsuccessful efforts during the drafting of the Rome Statute to enlarge the inchoate offence of incitement so as to cover the other core crimes but the same arguments that had been made in 1948, essentially based on freedom of expression, resurfaced. The issue of conspiracy has vexed international criminal law since Nuremberg. Under the common law system, a conspiracy is committed once two or more persons agree to commit a crime, whether or not the crime itself is committed, whereas in continental systems inspired by the Napoleonic tradition, conspiracy is generally viewed as a form of complicity or participation in an actual crime or attempt. Here, the Rome Statute strikes a compromise, requiring the commission of some overt act as evidence of the conspiracy but imposing no requirement that the crime itself actually be committed.
Responsibility of commanders and other superiors
One of the dilemmas of war crimes prosecution is the difficulty of linking commanders to the crimes committed by their subordinates. The Rome Statute requires proof of guilt beyond a reasonable doubt. In cases where this is forthcoming, the commanding superior’s guilt sits on a plane that is much higher than that of the underling who follows orders. As a Trial Chamber of the Yugoslav Tribunal has noted, ‘the Tribunal has particularly valid grounds for exercising its jurisdiction over persons who, through their position of political or military authority, are able to order the commission of crimes falling within its competence rational material or who knowingly refrain from preventing or punishing the perpetrators of such crimes’.57 But, while responsibility of a commander, in the absence of actual proof that orders were given, might seem probable, judges may be reluctant to convict based solely on such circumstantial evidence. This probably explains why Louise Arbour, Prosecutor of the Yugoslav Tribunal, waited for many weeks before indicting President Milosevic for crimes against humanity. She was unsatisfied with the circumstantial evidence of atrocities in Kosovo for which he had been condemned in the international press and was awaiting more concrete evidence that he had ordered them before proceeding.
There are two possible solutions to the dilemma of prosecuting commanders when direct evidence is lacking that they ordered crimes or knowingly ignored their perpetration. The first is to create a presumption by which commanders are deemed to have ordered the crimes committed by their subordinates, leaving it to the commander to answer the charges by establishing that no such orders were given. This technique is common in domestic criminal systems where it is difficult to prove that certain crimes were committed knowingly, such as environmental damage, false advertising and driving while intoxicated. This simplifies considerably the task of prosecutors, but it runs up against the principle of the presumption of innocence. Moreover, Article 67 of the Rome Statute expressly excludes any mechanism by which the burden of proof is shifted onto the accused. The other solution is to prosecute the commander not for ordering the crime itself, but for being negligent in preventing it. This second approach has some precedents to support it and is enshrined in Article 28 of the Rome Statute.
Mens rea or mental element
Criminal law sets itself apart from other areas of law in that, as a general rule, it is concerned with intentional and knowing behaviour. An individual who causes accidental harm to another may be liable before some other body but will by and large not be held responsible before the criminal courts. Intent is often described using the Latin expression mens rea (‘guilty mind’), taken from the phrase actus non facit reum nisi mens sit rea. But, even if it is understood that a criminal act must be intentional and knowing, there are degrees of intention ranging from mere negligence to recklessness and full blown intent with premeditation.68 In keeping with the seriousness of the offences over which the Court has jurisdiction, the Rome Statute sets a high standard for the mental element, requiring in paragraph (1) of Article 30 that ‘[u]nless otherwise provided’ the material elements of the offence must be committed ‘with intent and knowledge’.69 Int wo subsequent paragraphs, the Statute defines these concepts. A person has intent with respect to conduct when that person means to engage in the conduct. A person has intent with respect to a consequence when that person means to cause that consequence or is aware that it will occur in the ordinary course of events. Knowledge is defined as ‘awareness that a circumstance exists or a consequence will occur in the ordinary course of events’. Article 30 defines ‘knowledge’, adding that ‘know and knowingly’ shall be construed accordingly.
Defences
A defence is an answer to a criminal charge. It is used to denote ‘all grounds which, for one reason or another, hinder the sanctioning of an offence despite the fact that the offence has fulfilled all definitional elements of a crime’.84 Previous international criminal law instruments have made no real attempt at even a partial codification of defences, confining themselves to rather limited issues such as the inadmissibility of the defence of superior orders. Case law on war crimes prosecutions suggests that, aside from superior orders and command of the law, the main pleas invoked by the accused are acting in an official capacity, duress, military necessity, self-defence, reprisal, mistake of law or fact, and insanity.
The Rome Statute partially codifies available defences in Articles 31, 32 and 33. Article 31, entitled ‘Grounds for excluding criminal responsibility’, 85 deals specifically with insanity, intoxication, self-defence, duress and necessity. Article 32 addresses mistake, and Article 33 concerns superior orders and prescription of law. The Statute allows the Court to accept other defences,86 relying on the sources set out in Article 21(1). Indeed, it affirms a general right of the accused to raise defences.87 Obvious candidates process, consent and reprisal.88 Nevertheless, where the defence intends to raise an uncodified defence, it is required by the Rules of Procedure and Evidence to give notice to the Prosecutor prior to trial, and to obtain a preliminary ruling on the admissibility of the defence from the Trial Chamber.89 Other defences are formally excluded, either by the terms of the Statute itself defence of official capacity,90 lack of knowledge (in the case of command responsibility)91 and superior orders (in cases of genocide and crimes against humanity)92 – or by international case law– for example, tu quoque (literally, I can do to you what you have done to me).93 Insanity as a defence has arisen only rarely in the case law of major war crimes prosecutions. Rudolf Hess unsuccessfully raised it at Nuremberg. The text of Article 31(1)(a) echoes the so-called M’Naghten rules derived fromthe commonlaw,94 butwould also seem to be generally consistent with the approach taken in Romano-Germanic and Sharia systems.An individual who succeedswith a plea of insanity is entitled toa declaration that he or she is ot criminally responsible. The Statute does not speak directly to the burden of proof in cases of the defence of insanity. Is a defendant required only to raise a doubt about mental capacity, ormust he or she actually prove such an exception based on a preponderance of evidence? Domestic justice systems take different views of this matter. The International Criminal Tribunal for the Former Yugoslavia has opted for the preponderance of evidence standard, making proof of insanity more difficult for the accused.95 yet.
Article 67 of the Statute, which shields the accused from ‘any reversal of the burden of proof or any onus of rebuttal’, may compel the less onerous requirement that the accused only raise a reasonable doubt.
Statutory limitation
The Rome Statute declares that crimes within the jurisdiction of the Court shall not be subject to any statute of limitations.106 because there is no statutory limitation provided within the Statute itself, it seems that Article 29 is directed more at national legislation. Many domestic criminal law systems provide for the statutory limitation of crimes, even the most serious.107 Under French law, for example, prosecutions for murder are time-barred after ten years.108 Codes derived from the Napoleonic model generally have similar provisions. At his trial in Israel in 1961, Nazi war criminal Adolf Eichmann invoked a fifteen-year limitation period in force in Argentina, from where he had been kidnapped. The District Court of Jerusalem ruled that Argentine norms could not apply, adding a reference to applicable Israeli legislation declaring that ‘the rules of prescription . . . shall not apply to offences under this Law’.109 International opposition to statutory limitation for war crimes, crimes against humanity and genocide has taken the form of General Assembly resolutions,110 and treaties within both the United Nations system111 and that of the Council of Europe.112 But the treaties have not been a great success in terms of signature and ratification; the United Nations instrument still has less than fifty States parties. The low rate of adhesion to the United Nations Convention has led some academics to contest the suggestion that this is a customary norm.113 Nevertheless, in the Barbie case, the French Cour de cassation ruled that the prohibition on statutory limitations for crimes against humanity is now part of customary law.114 Article 29’s role in the Statute would appear to be part of the complex relationship between national and international judicial systems. It acts as a bar to States who might refuse to surrender offenders on the grounds that the offence was time-barred under national legislation. More than that, Article 29 may effect the prohibition on statutory limitation that the international treaties have failed to do.115
Creation of the Court
War criminals have been prosecuted at least since the time of the ancient Greeks, and probably well before that. The idea that there is some common denominator of behavior, even in the most extreme circumstances of brutal armed conflict, confirms beliefs drawn from philosophy and religion about some of the fundamental values of the human spirit. The early laws and customs of war can be found in the writings of classical authors and historians. Those who breached them were subject to trial and punishment. Modern codifications of this law, such as the detailed text prepared by Columbia University professor Francis Lieber that was applied by Abraham Lincoln to the Union army during the American Civil War, proscribed inhumane conduct, and set out sanctions, including the death penalty, for pillage, raping civilians, abuse of prisoners and similar atrocities. Prosecution for war crimes, however, was only conducted by national courts, and these were and remain ineffective when those responsible for the crimes are still in power and their victims remain subjugated. Historically, the prosecution of war crimes was generally restricted to the vanquished or to isolated cases of rogue combatants in the victor’s army. National justice systems have often proven themselves to be incapable of being balanced and impartial in such cases.
The Nuremberg and Tokyo trials
In the Moscow Declaration of 1 November 1943, the Allies affirmed their determination to prosecute the Nazis for war crimes. The United Nations Commission for the Investigation of War Crimes, composed of representatives of most of the Allies, and chaired by Sir Cecil Hurst of the United Kingdom, was established to set the stage for post-war prosecution. The Commission prepared a ‘Draft Convention for the Establishment of a United Nations War Crimes Court’, basing its text largely on the 1937 treaty of the League of Nations, and inspired by work carried out during the early years of the war by an unofficial body, the London International Assembly. But it was the work of the London Conference, convened at the close of the war and limited to the four major powers, the United Kingdom, France, the United States and the Soviet Union, that laid the groundwork for the prosecutions at Nuremberg. The Agreement for the Prosecution and Punishment of Major War Criminals of the European Axis, and Establishing the Charter of the International Military Tribunal (IMT) was formally adopted on 8 August 1945, and was promptly signed by representatives of the four powers. The Charter of the International Military Tribunal was annexed to the Agreement. This treaty was eventually adhered to by nineteen other 6 introduction to the international criminal court States who, although they played no active role in the Tribunal’s activities or the negotiation of its statute, sought to express their support for the concept. In October 1945, indictments were served on twenty-four Nazi leaders, and their trial – known as the Trial of the Major War Criminals – began the following month. It concluded nearly a year later, with the conviction of nineteen defendants and the imposition of sentence of death in twelve cases. The Tribunal’s jurisdiction was confined to three categories of offence: crimes against peace, war crimes and crimes against humanity. The Charter of the International Military Tribunal had been adopted after the crimes had been committed, and for this reason it was attacked as constituting ex post facto criminalisation. Rejecting such arguments, the Tribunal referred to the Hague Conventions, for the war crimes, and to the 1928 Kellogg–Briand
Pact, for crimes against peace. It also answered that the prohibition of retroactive crimes was a principle of justice, and that it would fly in the face of justice to leave the Nazi crimes unpunished. This argument was particularly important with respect to the category of crimes against humanity, for which there was little real precedent. In the case of some war crimes charges, the Tribunal refused to convict after hearing evidence of similar behaviour by British and American soldiers.
In December 1945, the four Allied powers enacted a somewhat modified version of the Charter of the International Military Tribunal, known as Control Council Law No. 10. It provided the legal basis for a series of trials before military tribunals that were run by the victorious Allies, as well as for subsequent prosecutions by German courts that continued for several decades. Control Council Law No. 10, which was really a form of domestic legislation because it applied to the prosecution of Germans by the courts of the civil authorities, largely borrowed the definition of crimes against humanity found in the Charter of the Nuremberg Tribunal, but omitted the latter’s insistence on a link between crimes against humanity and the existence of a state of war, thereby facilitating prosecution for pre- 1939 crimes committed against German civilians, including persecution of the Jews and euthanasia of the disabled. Several important trials were held pursuant to Control Council Law No. 10 in the period 1946–8 by American military tribunals. These focused on groups of defendants, such as judges, doctors, bureaucrats and military leaders.
In the Pacific theatre, the victorious Allies established the International Military Tribunal for the Far East. Japanese war criminals were tried under similar provisions to those used at Nuremberg. The bench was more cosmopolitan, consisting of judges from eleven countries, including India, China and the Philippines, whereas the Nuremberg judges were appointed by the four major powers, the United States, the United Kingdom, France and the Soviet Union.
At Nuremberg, Nazi war criminals were charged with what the prosecutor called ‘genocide’, but the term did not appear in the substantive provisions of the Statute, and the Tribunal convicted them of ‘crimes against humanity’ for the atrocities committed against the Jewish people of Europe. Within weeks of the judgment, efforts began in the General Assembly of the United Nations to push the law further in this area. In December 1946, a resolution was adopted declaring genocide a crime against international law and calling for the preparation of a convention on the subject. Two years later, the General Assembly adopted the Convention for the Prevention and Punishment of the Crime of Genocide. The definition of genocide set out in Article II of the 1948 Convention is incorporated unchanged in the Statute of the International Criminal Court, as Article 6. But, besides defining the crime and setting out a variety of obligations relating to its prosecution, Article VI of the Convention said that trial for genocide was to take place before ‘a competent tribunal of the State in the territory of which the act was committed, or by such international penal tribunal as may have jurisdiction with respect to those Contracting Parties which shall have accepted its jurisdiction’.
An early draft of the Genocide Convention prepared by the United Nations Secretariat had actually included a model statute for a court, based on the 1937 treaty developed within the League of Nations, but the proposal was too ambitious for the time and the conservative drafters stopped short of establishing such an institution. Instead, a General Assembly resolution adopted the same day as the Convention called upon the International Law Commission to prepare the statute of the court promised by Article VI.
International Law Commission
The International Law Commission is a body of experts named by the United Nations General Assembly and charged with the codification and progressive development of international law. Besides the mandate to draft the statute of an international criminal court derived from Article VI of the Genocide Convention, in the post-war euphoria about war crimes prosecution the General Assembly had also asked the Commission to prepare what are known as the ‘Nuremberg Principles’, a task it completed in 1950, and the ‘Code of Crimes Against the Peace and Security of Mankind’, a job that took considerably longer. Indeed, much of the work on the draft statute of an international criminal court and the draft code of crimes went on within the Commission in parallel, almost as if the two tasks were hardly related. The two instruments can be understood by analogy with domestic law. They correspond in a general sense to the definitions of crimes and general principles found in criminal or penal codes (the ‘code of crimes’), and the institutional and procedural framework found in codes of criminal procedure (the ‘statute’).
Meanwhile, alongside the work of the International Law Commission, the General Assembly also established a committee charged with drafting the statute of an international criminal court. Composed of seventeen States, it submitted its report and draft statute in 1952. A new committee, created by the General Assembly to review the draft statute in the light of comments by Member States, reported to the General Assembly in 1954. The International Law Commission made considerable progress on its draft code and actually submitted a proposal in 1954. Then, the General Assembly suspended the mandates, ostensibly pending the sensitive task of defining the crime of aggression.
The International Law Commission’s draft statute of 1994 focused on procedural and organizational matters, leaving the question of defining the crimes and the associated legal principles to the code of crimes, which it had yet to complete. Two years later, at its 1996 session, the Commission adopted the final draft of its ‘Code of Crimes Against the Peace and Security of Mankind’. The draft statute of 1994 and the draft code of 1996 played a seminal role in the preparation of the Statute of the International Criminal Court. The International Criminal Tribunal for the Former Yugoslavia has remarked that ‘the Draft Code is an authoritative international instrument which, depending upon the specific question at issue, may (i) constitute evidence of customary law, or (ii) shed light on customary rules which are of uncertain content or are in the process of formation, or, at the very least, (iii) be indicative of the legal views of eminently qualified publicists representing the major legal systems of the world’.
The ad hoc tribunals
While the draft statute of an international criminal court was being considered in the International Law Commission, events compelled the creation of a court on an ad hoc basis in order to address the atrocities being committed in the former Yugoslavia. Already, in mid-1991, there had been talk in Europe of establishing a tribunal to try Saddam Hussein and other Iraqi leaders following the Gulf War. In late 1992, as war raged in Bosnia, a Commission of Experts established by the Security Council identified a range of war crimes and crimes against humanity that had been committed and that were continuing. It urged the establishment of an international criminal tribunal, an idea that had originally been recommended by Lord Owen and Cyrus Vance, who themselves were acting on a proposal from French constitutional judge Robert Badinter. The proposal was endorsed by the General Assembly in aDecember 1992 resolution. The rapporteurs appointed under the Moscow Human DimensionMechanism of the Conference on Security and Cooperation in Europe, Hans Correll, Gro Hillestad Thune and Helmut Turk, took the initiative to prepare a draft statute. Several governments also submitted draft proposals or otherwise commented upon the creation of a tribunal.
On 22 February 1993, the Security Council decided upon the establishment of a tribunal mandated to prosecute ‘persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991’.The draft proposed by the Secretary-General was adopted without modification by the Security Council in its Resolution 827 of 8May 1993. According to the Secretary-General’s report, the tribunal was to apply rules of international humanitarian law that are ‘beyond any doubt part of the customary law’. The Statute clearly borrowed from the work then underway within the International Law Commission on the statute and the code of crimes, in effect combining the two into an instrument that both defined the crimes and established the procedure before the court. The Tribunal’s territorial jurisdiction was confined within the frontiers of the former Yugoslavia. Temporally, it was entitled to prosecute offences beginning in 1991, leaving its end-point to be established by the Security Council.
In November 1994, acting on a request from Rwanda, the Security Council voted to create a second ad hoc tribunal, charged with the prosecution of genocide and other serious violations of international humanitarian law committed in Rwandaandin neighboring countries during the year 1994.
Its Statute closely resembles that of the International Criminal Tribunal for the Former Yugoslavia, although the war crimes provisions reflect the fact that the Rwandan genocide took place within the context of a purely internal armed conflict. The resolution creating the Tribunal expressed the Council’s ‘grave concern at the reports indicating that genocide and other systematic, widespread and flagrant violations of international humanitarian law have been committed in Rwanda’, and referred to the reports of the Special Rapporteur for Rwanda of the United Nations Commission on Human Rights, as well as the preliminary report of the Commission of Experts, which the
Council had established earlier in the year.
The Yugoslav and Rwandan Tribunals are in effect joined at the hip, sharing not only virtually identical statutes but also some of their institutions. The Prosecutor is the same for both tribunals, as is the composition of the Appeals Chamber. The consequence, at least in theory, is economy of scale as well as uniformity of both prosecutorial policy and appellate jurisprudence. The first major judgment by the Appeals Chamber of the Yugoslav Tribunal, the Tadic jurisdictional decision of 2 October 1995, clarified important legal issues relating to the creation of the body. It also pointed the Tribunal towards an innovative and progressive view of war crimes law, going well beyond the Nuremberg precedents by declaring that crimes against humanity could be committed in peacetime and by establishing the punishability of war crimes during internal armed conflicts. Subsequent rulings of the ad hoc tribunals on a variety of matters fed the debates on creation of an international criminal court. The findings in Tadic with respect to the scope of war crimes were essentially incorporated into the Statute of the International Criminal Court. Its obiter dictum that crimes against humanity could be committed in time of peace and not just in wartime, as had been the case at Nuremberg, was also endorsed. Other judgments, such as a controversial holding that excluded recourse to a defence of duress, prompted drafters of the Statute to enact a provision ensuring precisely the opposite. The issue of ‘national security’ information ignored by the International Law Commission, was thrust to the forefront of the debates after the Tribunal ordered Croatia to produce government documents, and resulted in one of the lengthiest and most enigmatic provisions in the final Statute.The Rome Conference also departed from some of the approaches taken by the Security Council itself, choosing, for example, to recognise a limited defence of superior orders whereas the Council’s drafters had preferred simply to exclude this with an unambiguous provision.
But the Tribunals did more than simply set legal precedent to guide the drafters. They also provided a reassuring model of what an international criminal court might look like. This was particularly important in debates concerning the role of the Prosecutor. The integrity, neutrality and good judgment of Richard Goldstone and his successor, Louise Arbour, answered those who warned of the dangers of a reckless and irresponsible ‘Dr Strangelove prosecutor’.
Drafting of the ICC Statute
In 1994, the United Nations General Assembly decided to pursue work towards the establishment of an international criminal court, taking the International Law Commission’s draft statute as a basis.46 It convened an Ad Hoc Committee, which met twice in 1995. Debates within the Ad Hoc Committee revealed rather profound differences among States about the complexion of the future court, and some delegations continued to contest the overall feasibility of the project, although their voices became more and more subdued as the negotiations progressed. The International Law Commission draft envisaged a court with ‘primacy’, much like the ad hoc tribunals for the Former Yugoslavia and Rwanda. If the court’s prosecutor chose to proceed with a case, domestic courts could not pre-empt this by offering to do the job themselves. In meetings of the Ad Hoc Committee, a new concept reared its head, that of ‘complementarity’, by which the court could only exercise jurisdiction if domestic courts were unwilling or unable to prosecute. Another departure of the Ad Hoc Committee from the International Law Commission draft was its insistence that the crimes within the court’s jurisdiction be defined in some detail and not simply enumerated.
The International Law Commission had contented itself with listing the crimes subject to the court’s jurisdiction – war crimes, aggression, crimes against humanity and genocide – presumably because the draft code of crimes, on which it was also working, would provide the more comprehensive definitional aspects. Beginning with the Ad Hoc Committee, the nearly fifty-year-old distinction between the ‘statute’ and the ‘code’ disappeared. Henceforth, the statute would include detailed definitions of crimes as well as elaborate provisions dealing with general principles of law and other substantive matters. The Ad Hoc Committee concluded that the new court was to conform to principles and rules that would ensure the highest standards of justice, and that these should be incorporated in the statute itself rather than being left to the uncertainty of judicial discretion.
The Rome Conference began with a few days of formal speeches from political figures, United Nations officials and personalities from the growing ranks of those actually involved in international criminal prosecution, including the presidents of the two ad hoc tribunals and their Prosecutor.
Then the Conference divided into a series of working groups with responsibility for matters such as general principles, procedure and penalties. Much of this involved details, unlikely to create insurmountable difficulties to the extent that the delegates were committed to the success of the endeavour. But a handful of core issues – jurisdiction, the ‘trigger mechanism’ for prosecutions, and the role of the Security Council – remained under the wing of the Bureau. These difficult questions were not publicly debated for most of the Conference, although much negotiating took place informally.
One by one, the provisions of the statute were adopted ‘by general agreement’ in the working groups, that is, without a vote. The process was tedious, in that it allowed a handful of States or even one of them to hold up progress by refusing to join consensus. The chairs of the working groups would patiently negotiate compromises, drawing on comments by States who often expressed their views on a provision but then indicated their willingness to be flexible. Within a week of the beginning of the Conference, the working groups were forwarding progress reports to the Committee of the Whole, indicating the provisions that had already met with agreement. These were subsequently examined by the Drafting Committee, chaired by Professor M. Cherif Bassiouni, for terminological and linguistic coherence in the various official language versions of the statute.
But, as the weeks rolled by, the key issues remained to be settled, of which the most important were the role of the Security Council, the list of ‘core crimes’ over which the court would have inherent jurisdiction, and the scope of its jurisdiction over persons who were not nationals of States Parties. These had not been assigned to any of the working groups, and instead were handled personally by the chair of the Committee of the Whole, Philippe Kirsch. With two weeks remaining, Kirsch issued a draft that set out the options on these difficult questions. The problem, though, was that many States belonged to the majority on one question but dissented on others. Finding a common denominator, that is, a workable statute that could reliably obtain the support of two-thirds of the delegates in the event that the draft statute was ever to come to a vote, remained daunting. Suspense mounted in the final week, with Kirsch promising a final proposal that in fact he only issued on the morning of 17 July, the day the Conference was scheduled to conclude. By then it was too late for any changes. Like a skilled blackjack player, Kirsch had carefully counted his cards, yet he had no guarantee that his proposal might not meet unexpected opposition and lead, inexorably, to the collapse of the negotiations. Throughout the final day of the Conference delegates expressed their support for the ‘package’, and resisted any attempts to alter or adjust it out of fear that the entire compromise might unravel. The United States tried unsuccessfully to rally opposition, convening a meeting of what it had assessed as ‘waverers’. Indeed, hopes that the draft statute might be adopted by consensus at the final session were dashed when the United States exercised its right to demand that a vote be taken. The result was 120 in favour, with twenty-one abstentions and seven votes against. The vote was not taken by roll call, and only the declarations made by States themselves indicate who voted for what. The United States, Israel and China stated that they had opposed adoption of the statute. Among the abstainers were several Arab and Islamic States, as well as a number of delegations from the Commonwealth Caribbean.
In addition to the Statute of the International Criminal Court, on 17 July 1998 the Diplomatic Conference also adopted a Final Act, providing for the establishment of a Preparatory Commission by the United Nations General Assembly. The Commission was assigned a variety of tasks, of which the most important were the drafting of the Rules of Procedure and Evidence, which provide details on a variety of procedural and evidentiary questions, and the drafting of the Elements of Crimes, which elaborate upon the definitions of offences in Articles 6, 7 and 8 of the Statute. The Commission met the deadline of 30 June 2000, set for it by the Final Act, for the completion of the Rules and the Elements. Other tasks included drafting an agreement with the United Nations on the relationship between the two organizations, preparation of a host State agreement with the Netherlands, which is to be the seat of the Court, and documents to direct or resolve a range of essentially administrative issues, such as the preliminary budget. An Agreement on the Privileges and Immunities of the International Criminal Court was also adopted. It provides personnel of the Court with a range of special measures analogous to those of United Nations personnel and diplomats. It is up to individual States to sign and ratify this treaty. The Preparatory Commission held ten sessions, concluding its work in July 2002 just as the Statute was entering into force, although it did not formally dissolve until September 2002.
The Statute required sixty ratifications or accessions for entry into force. The date of entry into force 1 July 2002 – is an important one, if only because the Court cannot prosecute crimes committed prior to entry into force. Entry into force also began the real formalities of establishing the Court, such as the election of judges and Prosecutor. States were also invited to sign the Statute, which is a preliminary step indicating their intention to ratify. They were given until the end of 2000 to do so, and some 139 availed themselves of the opportunity. Even States that had voted against the Statute at the Rome Conference, such as the United States and Israel, ultimately decided to sign. States wishing to join the Court who did not deposit their signatures by the 31 December 2000 deadline are said to accede to, rather than ratify, the Statute. Senegal was the first to ratify the Statute, on 2 February 1999, followed by Trinidad and Tobago two months later. The pace of ratification was speedier and more dramatic than anyone had realistically expected. By the second anniversary of the adoption of the Statute, fourteen ratifications had been deposited. By 31 December 2000, when the signature process ended, there were twenty-seven parties. By the third anniversary, the total stood at thirty-seven. Significant delays between signature and ratification were to be expected, because most States needed to undertake significant legislative changes in order to comply with the obligations imposed by the Statute, and it was normal for them to want to resolve these issues before formal ratification. Specifically, they needed to provide for cooperation with the Court in terms of investigation, arrest and transfer of suspects. Many States now prohibit the extradition of their own nationals, a situation incompatible with the requirements of the Statute. In addition, because the Statute is predicated on ‘complementarity’, by which States themselves are presumed to be responsible for prosecuting suspects found on their own territory, many felt obliged to bring their substantive criminal law into line, enacting the offences of genocide, crimes against humanity and war crimes as defined in the Statute and ensuring that their courts can exercise universal jurisdiction over these crimes.
The magic number of sixty ratifications was reached on 11 April 2002. In fact, because several were planning to ratify at the time, the United Nations organised a special ceremony at which ten States deposited their instruments simultaneously. The Statute provides for entry into force on the first day of the month after the sixtieth day following the date of deposit of the sixtieth instrument of ratification. Accordingly, the Statute entered into force on 1 July 2002. The Assembly of States Parties was promptly convened for its first session, which was held on 3–10 September 2002. The Assembly formally adopted the Elements of Crimes and the Rules of Procedure and Evidence in versions unchanged from those that had been approved by the Preparatory Commission two years earlier. A number of other important instruments were also adopted, and plans made for the election of the eighteen judges and the Prosecutor. Nominations for these positions closed at the end of November 2002, with more than forty candidates for judge but none for the crucially important position of Prosecutor. Elections of the judges were completed by the Assembly during the first week of February 2003, at its resumed first session. In a totally unprecedented development for international courts and tribunals, more than one-third of the judges elected in February 2003 were women. The first Prosecutor, Luis Moreno Ocampo of Argentina, was elected in April 2003.
Even prior to entry into force, it became increasingly clear that a showdown was looming between the United States and the Court. One of the final acts of the Clinton administration was to sign the Statute, literally at the eleventh hour, on the evening of 31 December 2000.66 The administration had been somewhat divided on the issue, as elements within the Department of State – some of them fundamentally sympathetic to the Court – tried to ‘fix’ the Statute and thereby facilitate United States support or, at the very least, a modicum of benign tolerance. The Bush administration, which took office a few weeks later, was overtly hostile to the Court. It approached the United Nations Secretariat to see if the signature could be revoked. But, while international law does not permit a treaty to be ‘unsigned’, the Vienna Convention on the Law of Treaties clearly envisages a situation where a State, subsequent to signature, has changed its mind. According to Article 18 of the Vienna Convention, a signatory State may not ‘defeat the object and purpose of a treaty prior to its entry into force’ until it has made clear its intent not to become a party to the treaty. This is what the Bush administration did on 6 May 2002, in a communication filed with the United Nations Secretary-General.
This was only a precursor for more aggressive challenges to the Court. Most of this took the form of measures aimed at protecting what were euphemistically referred to as ‘US peacekeepers’ The United States pressured a number of States to reach bilateral agreements whose purpose was to shelter American nationals from the Court. These were made pursuant to Article 98(2) of the Statute, which prevents the Court from proceeding with a request to surrender an accused if this would require the requested State to breach an international agreement that it has made with another State.
The provision was actually intended to recognise what are known as ‘host State agreements’ and ‘status of forces agreements’. Such instruments give a kind of immunity to foreign military forces based in another State, or to various international and non-governmental organisations. The new agreements that the United States was pushing went much further, because they applied to all of its citizens within the State in question. Perhaps these were consistent with a technical reading of Article 98(2), although they were not at all what were meant when the provision was adopted. American diplomats succeeded in bullying a number of States – many of them not even Parties to the Statute – into signing these agreements. However, those States with the most significant numbers of American residents, such as Canada, Mexico and those of western Europe, for whom there might be some real significance to the possibility of enforcement of surrender orders issued by the Court, have refused to entertain what they have understood as a more or less indirect attack on the Court. On 25 September 2002, the European Parliament opposed the bilateral immunity agreements being proposed by the United States, saying that they were inconsistent with the Rome Statute. Worse was yet to come, however. Within a few days of the Statute’s entry into force, the United States announced that it would veto all future Security Council resolutions concerning peacekeeping and collective security operations until the Council adopted a resolution that would, in effect, exclude members of such operations from the jurisdiction of the Court. As early as May 2002, it had threatened to withdraw peacekeeping troops from East Timor if there was no immunity. The debate erupted as the Council was about to renew the mandate of its mission in Bosnia and Herzegovina. Even with the proposed resolution, United Nations peacekeepers, as well as the much larger contingent of United States armed forces and those of other States that belong to the NATO-led Stabilisation Force (SFOR), remained subject to the jurisdiction of the International Criminal Tribunal for the Former Yugoslavia. The United States was really concerned about other parts of the world. The blackmail succeeded, but to outraged protests from many States, including Germany and Canada. Finally, on 2 August 2002, President Bush signed into law the American Service Member’s Protection Act. Referring to the Rome Statute, the preamble to the Act declares: ‘Not only is this contrary to the most fundamental principles of treaty law, it could inhibit the ability of the US to use its military to meet alliance obligations and participate in multinational operations including humanitarian interventions to save civilian lives.’ The Act prohibits agencies of the United States government from cooperating with the Court, imposes restrictions on participation in United Nations peacekeeping activities, prohibits United States military assistance to States Parties to the Statute, and authorizes the use of force to free any United States citizen who is detained or imprisoned by or on behalf of the Court. It was soon christened the ‘Hague Invasion Act’ by its many critics who imagined a scenario of the Marines landing on the beaches of Scheveningen in an attempt to rescue some latter-day Henry Kissinger. These developments have actually proved to be little more than squalls, and the Court has weathered them without major mishap. At times, it seemed as if opposition from the United States only enhanced the enthusiasm of other countries for the Court. Moreover, the United States now seems to have run out of ideas as to how to attack the Court. Its two serious challenges have had the relatively limited effect of sheltering American nationals in what are only a handful of countries with relatively insignificant expatriate populations, and of immunizing troops in United Nations-authorised missions. If this is the worst that the United States can throw at the Court, the institution cannot be in any great danger.
The influence of the Rome Statute will extend deep into domestic criminal law, enriching the jurisprudence of national courts and challenging prosecutors and judges to display greater zeal in the repression of serious violations of human rights. National courts have shown, in recent years, a growing enthusiasm for the use of international law materials in the application of their own laws. A phenomenon of judicial globalisation is afoot. The Statute itself, and eventually the case law of the International Criminal Court, will no doubt contribute in this area. The International Criminal Tribunal for the Former Yugoslavia, in Prosecutor v. Furundzija, described the Statute’s legal significance as follows:
[A]t present it is still a non-binding international treaty (it has not yet entered into force). It was adopted by an overwhelming majority of the States attending the Rome Diplomatic Conference and was substantially endorsed by the General Assembly’s Sixth Committee on 26 November 1998. In many areas the Statute may be regarded as indicative of the legal views, i.e. opinio juris of a great number of States. Notwithstanding article 10 of the Statute, the purpose of which is to ensure that existing or developing law is not ‘limited’ or ‘prejudiced’ by the Statute’s provisions, resort may be had com grano salis to these provisions to help elucidate customary international law. Depending on the matter at issue, the Rome Statute may be taken to restate, reflect or clarify customary rules or crystallize them, whereas in some areas it creates new law or modifies existing law. At any event, the Rome Statute by and large may be taken as constituting an authoritative expression of the legal views of a great number of States.
Structure and administration of the Court
The seat of the Court is The Hague, but it may sit elsewhere if it considers this desirable. The Netherlands was the only State to offer its services, despite rumours that circulated before and during the Diplomatic Conference about Rome, Lyon and Nuremberg as possible candidates. The Hague is already the seat of the International Court of Justice as well as of the International Criminal Tribunal for the Former Yugoslavia and other international judicial organisations. Its candidacy must have seemed so unbeatable to possible competitors that they declined even to throw their hats into the ring. As part of the preparatory process for coming into force of the Rome
Statute, a ‘headquarters agreement’ was negotiated with the Netherlands. The Netherlands has provided a large office building in The Hague, formerly used by the Dutch postal service, as temporary premises for the Court. A site for the permanent headquarters of the Court has been identified in Scheveningen, a suburb of The Hague on the North Sea coast. An architectural competition is being organised by the government of the Netherlands, and the government has said it expects the permanent home for the Court to be ready by about 2007.
The International Criminal Court is a new and independent international organisation. The Court is formally distinct from the United Nations. Nevertheless, the United Nations has played a seminal role in its creation, and continues to fund the process of establishment of the Court. Its Security Council has the right to refer cases to the Court. The precise relationship between the two organisations is to be defined in an agreement that must also be finalised before the Rome Statute comes into force. The International Criminal Court is composed of four ‘organs’: the Presidency, the Divisions, the Office of the Prosecutor and the Registry. There are three Divisions: the Appeals Division, the Trial Division and the Pre- Trial Division. The term ‘Division’ rather than ‘Chamber’ was used in order to resolve a dispute about whether there should be one or several pre-trial chambers.
The judges of the Court
The eighteen judges of the court are elected by the Assembly of States Parties, of whom three make up the Presidency. Any State party may propose one candidate for the Court in any given election. That candidate need not be a national of the nominating State but must be a national of a State party. But there can be only one judge of any given nationality at any one time. Judges are to be of ‘high moral character, impartiality and integrity’, a phraseology that is rather typical of international instruments. They must also be qualified for appointment to the highest judicial offices in their respective States, and are to have an excellent knowledge of and be fluent in at least one of the working languages of the Court, namely, English or French. The Statute allows for an ‘advisory committee’ on nominations. But this is a timid affair indeed compared with the thoroughgoing screening procedure to ensure qualifications that was originally mooted by the United Kingdom, somewhat along the lines of the procedure in force for appointments to the European Court of Human Rights. However, many States resented any attempt to limit their right to designate their own candidates.
The Statute requires a degree of expertise in the subject matter of the Court. Here it creates two categories of candidates, those with criminal law experience and those with international law experience. Specific reference is made to international humanitarian law and the law of human rights. During an election there are two lists of candidates, one with the criminal law profile (‘List A’), the other with the international law profile (‘List B’). A nominee for the Court who meets both requirements may choose the list on which he or she will appear. At the first election, a minimum of nine and a maximum of thirteen judges had to come from the criminal law profile, and a minimum of five and a maximum of nine from the international law profile. In fact, in the first election, ten judges were drawn from the criminal law list and eight from the international law list. Subsequent elections are to be organised so as to maintain the same proportion of judges.
Although no specific percentages are set out, Article 36(8) commits the States parties to ‘take into account’ the need to ensure representation of the principal legal systems of the world, equitable geographic representation, ‘a fair representation of female and male judges’, and legal expertise on specific issues such as violence against women or children. The wording is a watered down version of draft provisions that spoke bluntly of ‘gender balance’. The requirement of fair gender representation reflects concerns that the new Court might resemble its close relation, the International Court of Justice, a fifteen-member body to which only one woman has ever been elected in its entire eighty-year history. The ad hoc tribunals, whose judges are elected by the Security Council, have shown some modest improvement in this respect. To their credit, both have elected women to the Presidency of the Tribunals. But as recently as 2001, in elections for the International Criminal Tribunal for the Former Yugoslavia, only one of the fourteen judges was female.
The election procedure for judges was adopted by the Assembly of States Parties at its first meeting, in September 2002. Successful individual candidates were required to obtain a two-thirds majority of States Parties present, with an absolute majority of States Parties deemed to constitute a quorum. In order to obtain an equitable geographic representation, it was agreed that each State would be required to vote for at least three candidates from the five voting groups recognised within the United Nations, namely, Africa, Asia, Eastern Europe, Latin America and the Caribbean and the ‘Western Europe and other’ group (including, for example, Canada, Australia and New Zealand). Each State was also required to vote for a minimum of six candidates from each gender. Each State was given eighteen votes on the first ballot, with the number reduced on successive ballots so as to correspond to the number of positions remaining to be filled. The quotas designed to ensure geographical and gender balance were also reduced accordingly on successive ballots. After four ballots, the applicable quotas no longer applied, and States were free to vote for candidates without regard to these issues.
Judges who are required to serve on a full-time basis at the seat of the Court are not allowed to engage in any other occupation of a professional nature. All judges, including those who do not work full-time, are forbidden from activities ‘likely to interfere with their judicial functions or to affect confidence in their independence’. Given these requirements, it would seem hazardous to allow senior civil servants or diplomats to stand for election to part-time positions, a practice that is tolerated in the case of some other international tribunals that sit on a part-time basis.
Annual salaries of the judges are set at €180,000, but initially this will only be paid to the three who make up the Presidency of the Court. Part time judges are entitled to a minimum annual allowance of €20,000, even if they do not actually sit. It is assumed that this will only supplement income from other employment; those whose additional income is not significant are entitled to additional payments so that their total annual remuneration from all sources is not less than €60,000. Furthermore, part-time judges will receive a per diem allowance when they are serving.
The Presidency is responsible for the administration of the Court and a variety of specialised functions set out in the Statute. The Presidency of the Court is elected by the judges. The President and the First and Second Vice-Presidents make up the Presidency. The Presidency is to decide upon the appropriate workload of the other fifteen judges. The Presidency may also propose that the number of judges be increased, where this is considered necessary and appropriate, although any increase has to be authorised by the Assembly of States Parties. The ad hoc tribunals began with only six trial judges, but the number was soon found to be insufficient. Initially, the Yugoslav Tribunal drew upon the five Appeals Chamber judges to assist with some trial work. Then, the Security Council agreed to add a three judge chamber to each of the tribunals. There are at present more than thirty international judges working full-time on the Rwanda and Yugoslav Tribunals. It would seem likely; then, that the eighteen judges envisaged in the Rome Statute will quickly prove to be inadequate if the Court fulfils even the most modest of expectations.
The Appeals Division is composed of the President and four other judges. Members of the Appeals Division are to serve their entire nine-year term in the Division, reflecting widespread dissatisfaction with practice at the ICTY where judges move from one chamber to another during their terms.
The Trial Division and Pre-Trial Division are composed of not less than six judges. Judges in each of these divisions are to serve for at least three years within their division. Judges are to be assigned to the various divisions based on their qualifications and experience, and so as to ensure an appropriate combination of expertise in criminal and international law. The Trial and Pre-Trial Divisions are to contain judges with primarily criminal law experience and, though not stated as such in the Statute, there is the suggestion that the international law judges will gravitate towards the Appeals Division. Reading between the lines, the Statute seems to be saying that the more practically oriented criminal law specialists should focus on trials, while their more professorial brethren in the international law field should focus on appeals.
The Appeals Chamber sits as a full bench of the five judges belonging to the Appeals Division. The Trial Chamber sits in benches of three judges of the Trial Division. The Pre-Trial Chamber sits as either a three-judge panel or as a single judge, belonging to the Pre-Trial Division. Judges of the other Trial and Pre-Trial Division may temporarily be assigned to the other, although no judge who has participated in the pre-trial phase of a particular case may sit on the Trial Chamber of the same case.
Judges may be excused from their functions by the Presidency. They may also be disqualified from sitting in cases in which there can be reasonable doubts about their impartiality. That they cannot sit in matters in which they have previously been involved at the national level would seem obvious, but to avoid any doubt this rule is spelled out in the Statute. A Code of Professional Conduct for defence counsel is to be drafted by the Presidency of the Court.
Office of the Prosecutor
The prosecutorial arm of the Court is a separate and independent organ. The Office of the Prosecutor is headed by the Prosecutor, who is assisted by one or more Deputy Prosecutors. The Prosecutor and the Deputy Prosecutors are required to be of different nationalities. Both the Prosecutor and the Deputy Prosecutors are to be persons ‘of high moral character’ with ‘extensive, practical experience’ in criminal prosecutions. They must be fluent in at least one of the working languages of the Court. Selection of a Prosecutor proved to be more difficult than election of the judges of the Court. Early on, it was agreed that it was highly desirable for this highly sensitive position to be filled by consensus rather than by a volatile and unpredictable ballot. When nominations formally came to an end in late 2002, not a single candidate had been proposed. At the resumed first session of the Assembly of States Parties, in February 2003, it was agreed to reopen the nomination period, with a view to election of the Prosecutor at the second resumed session in April of the same year. An informal consensus was reached in late-March, when Zeid Raad AlHussein, President of the Assembly of States Parties, announced the designation of Luis Moreno Ocampo of Argentina. Ocampo distinguished himself as deputy prosecutor during trials of Argentine military officials who had supported the dictatorship that held power between 1976 and 1983. Subsequently, he helped found one of the country’s major human rights non-governmental organisations.
The Prosecutor is elected by secret ballot of an absolute majority of the Assembly of States Parties. The Deputy Prosecutors must also be elected by the Assembly of States Parties, but from a list of candidates proposed by the Prosecutor. The Prosecutor submits a list of three candidates for each position of Deputy Prosecutor to be filled. The term of both Prosecutor and Deputy Prosecutors is nine years.
The Prosecutor is to appoint legal experts as advisers on specific issues, such as sexual and gender violence and violence against children. The Prosecutor is also to hire investigators and other staff members. The same requirements as for judges, that is, experience with various judicial systems, geographic representativity and gender balance are to be sought. The Statute allows persons being investigated or prosecuted to request the disqualification of the Prosecutor or of a Deputy Prosecutor.
The Registry
The Registry is responsible for the non-judicial aspects of the administration and servicing of the Court. The principal administrative officer of the Court is the Registrar, and he or she heads the Registry. The Registrar is elected by the judges to a five-year term. A jurist from France, Bruno Cathala, was chosen in June 2003 as the Court’s first Registrar. If required, the judges may also elect a Deputy Registrar to a five-year term or to such shorter term as they may decide.
The Registrar’s staff is to demonstrate experience with various judicial systems, in addition to geographic representativity and gender balance. The Statute specifically provides for the use of ‘gratis personnel’ offered by States parties, intergovernmental and non-governmental organizations to assist with the work of any of the organs of the Court. Gratis personnel are to be employed only ‘in exceptional circumstances’.
Ethical matters
Judges, Prosecutor, Deputy Prosecutors, Registrar and Deputy Registrar are all required to make a solemn undertaking in open court to exercise their functions impartially and conscientiously. Any of them may be removed from office on grounds of serious misconduct, a serious breach of duties, or inability to exercise the functions required by the Statute. In the event of misconduct of a less serious nature, disciplinary measures may be imposed.
Removal is the result of a decision taken by the Assembly of States Parties.
Removal of a judge first requires a recommendation to this effect by a two thirds majority of the other judges. Then, a two-thirds majority of the States parties must agree. The Prosecutor is more vulnerable, and can be removed by a majority of the States parties. The Deputy Prosecutor’s removal must be recommended by the Prosecutor and then authorized by a majority of the States parties. The Registrar and Deputy Registrar may be removed by a majority of the judges. Salaries of the Judges, the Prosecutor and Deputy Prosecutors, and the Registrar and Deputy Registrar, are set by the Assembly of States Parties and may not be reduced during their terms of office.
Defence bar
The Statute and the Rules of Procedure and Evidence establish norms that apply to defence counsel, including a Code of Professional Conduct for Counsel to be adopted by the Assembly of States Parties pursuant to a proposal from the Registrar, after consultation with the Prosecutor. The Registrar is also assigned certain responsibilities with respect to designation of defence counsel for indigent accused, and various forms of material assistance to defense counsel. Proposals during the Preparatory Commission process to establish a defence counsel unit, similar to the victims and witnesses unit, were criticised on the ground that there was no basis in the Statute for such an initiative.
The matter has been taken up by non-governmental organisations, including associations of defence lawyers and national law societies. In June 2002, the founding meeting of the International Criminal Bar was held in Montreal, Canada. The International Criminal Bar intends to seek recognition from the Assembly of States Parties and the Registrar of the Court as an independent representative body of counsel or legal associations, in accordance with Rule 20(3) of the Rules of Procedure and Evidence. The Bureau of the Assembly of States Parties has appointed a representative, Hans Bevers of the Netherlands, to act as a focal point on the establishment of an international criminal bar.
Languages
The Court has two working languages, English and French, although it may designate other working languages on a case-by-case basis. Judges, the Prosecutor, the Registrar and their deputies, as well as defence counsel, are all required to have fluency in at least one of these languages. The Court has six official languages: Arabic, Chinese, English, French, Russian and Spanish. Judgments of the Court, as well as other decisions ‘resolving fundamental issues before the Court’, are to be published in the official languages. The requirement is consistent with United Nations practice, but may prove cumbersome in the case of judgments running into several hundreds of pages, as has been the custom at the ad hoc tribunals. Although the ad hoctribunals have only two official languages, as a general rule they have proven to be unable to issue judgments in both languages simultaneously.
Assembly of States Parties
The Assembly of States Parties is responsible for a wide range of administrative matters, including providing the officers of the Court with general guidelines, adoption of the budget, increases in the number of judges, and similar matters. The Assembly is also the forum for adoption of amendments to the Statute. To some extent, it was also charged with completing the unfinished work of the Rome Conference, adopting the Elements of Crimes, the Rules of Procedure and Evidence, and other instruments necessary for the operation of the Court. These instruments were initially prepared by the Preparatory Commission, in accordance with instruction in the Final Act, but subject to formal adoption by the Assembly.
Each State Party has one representative in the Assembly of States Parties. Signatories of the Final Act can be observers in the Assembly. This ‘generous’ approach prevailed over those who wanted to confine attendance in the Assembly to signatories of the Statute itself. The Assembly is authorised to establish a Bureau as well as subsidiary bodies. Both the Bureau and the Assembly are to meet once a year, although they can be convened more frequently if necessary.
The first Assembly of States Parties convened in New York City, at the United Nations headquarters, on 3 September 2002. Prince Zeid Raad Zeid Al-Hussein of Jordan was elected president, with Allieu Ibrahim Kanu of Sierra Leone and Felipe Paolillo of Uruguay as vice-presidents.
Funding
One of the unpleasant consequences of the fact that the Court is not a United Nations body is that it is responsible for its own funding. The Statute allows the Court to take money based on contributions assessed upon States parties, following the basic scale already in use in the United Nations, a calculation that considers population and relative wealth. In addition, the Court may take any funds provided by the United Nations. Specific mention is made of expenses that may be incurred in the case of Security Council referrals, for which it seems only natural that the United Nations must be responsible. The wording suggests this form of mixed financing, but tilts towards the idea that United Nations contributions are to be based principally upon cases involving Security Council referral. Proposals that the Court should be funded strictly by the United Nations were resisted, principally by the three biggest contributors to the United Nations budget, the United States, Germany and Japan.40 At its first session, in September 2002, the Assembly of States Parties decided that for the first financial period of the Court, the budget would to be met by assessments levied upon States parties in accordance with the applicable scales of assessment within the United Nations.
In addition, the Court is entitled to receive and use any voluntary contributions from governments, international organizations, individuals, corporations and other entities. The practice of receiving voluntary contributions is already well entrenched within the United Nations and other international organizations, and many important programmes would be eliminated without this source of financing. Some important functions of the ad hoc tribunals have only been fulfilled as a result of voluntary contributions. At its first session, in September 2002, the Assembly of States Parties made a formal request to governments, international organizations, individuals, corporations and other entities making voluntary contributions to declare that these ‘are not intended to affect the independence of the Court’. Furthermore, it assigned the Registrar the responsibility to assure him or her that this condition was respected.
The actual budget of the Court is determined by the Assembly of States Parties. At its first session, in September 2002, the Assembly adopted a budget of approximately €30 million. This was based upon an assumption that, in its first year of operation, the Court would have no detainees or pending proceedings. It was estimated that the Court would employ approximately200 persons in its first full year of operation. A twelve-member Committee on Budget and Finance has been established to review relevant technical issues.
Settlement of disputes
The Rome Statute is an international treaty subject to many general legal rules developed by custom over the centuries and partially codified in the 1969 Vienna Convention on the Law of Treaties. A multilateral treaty is, in effect, a form of contract between the States that adhere to it. Disputes may arise between two or more States as to the interpretation or application of the Statute. Such cases are to be submitted to the Assembly of States Parties, which may attempt to settle the case or propose alternative means of settlement, including referring the case to the International Court of Justice. However, such a procedure can only work with States that have also accepted the jurisdiction of the International Court of Justice, or that agree to its jurisdiction in a specific case.
Reservations
It is not at all uncommon for States to formulate reservations or interpretative declarations at the time they sign or ratify international treaties. In the absence of any special rules in the treaty itself, such reservations are permissible provided they do not violate the ‘object and purpose’ of the treaty. Complex questions have arisen in recent years with respect to the legality of reservations to certain treaties, and the legal consequences of invalid reservations. All of this is avoided by Article 120, which states simply: ‘No reservations may be made to this Statute.’ But the provision has not prevented some States from making interpretative declarations at the time of ratification. To the extent such declarations do not seek to limit the State’s obligations under the Statute, they would seem to be permissible. In practice, it is not always easy to distinguish between a reservation and an interpretative declaration. France formulated an interpretative declaration with respect to Article 8 at the time of its ratification of the Statute.
At least one declaration would seem to be analogous to a genuine reservation. Denmark, upon ratification of the Statute, declared that it did not extend to the Faroe Islands and Greenland. A reservation is defined by the Vienna Convention on the Law of Treaties as ‘a unilateral statement, however phrased or named, made by a State, when signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that State’. The consequence is to limit Denmark’s obligations under the Statute.
The Statute makes its own exception to the rule by allowing States to formulate a kind of reservation to Article 8. For a seven-year period, States may ratify the Statute but escape jurisdiction over war crimes. The text is all that remains of an early scheme by which States parties would be able to pick and choose the crimes over which the Statute would apply to them. The existing provision was inserted in the final draft of the Statute as a compromise aimed at garnering the support of France and perhaps a few other States. It was resoundingly criticised by human rights nongovernmental organisations at the close of the Rome Conference, although these concerns were probably exaggerated.53 Since then, only two States, France and Colombia, have actually invoked Article 124, although others that are considering ratification, such as Burundi, are also said to be studying the possibility of making such a declaration. Serious war crimes likely to attract the attention of the Prosecutor and meet the Court’s threshold for serious crimes will by and large also meet the definition of crimes against humanity. It would seem unlikely that the Court will be deprived of jurisdiction over very many specific offenders merely because of Article 124.
It is not entirely clear what the effect of a declaration under Article 124 will be. If a State declares that it does not accept the Court’s jurisdiction over war crimes, does this mean that its nationals cannot be prosecuted, even if the crime is committed on the territory of another State party? Elizabeth Wilmshurst of the United Kingdom foreign ministry has argued that the ‘common sense view’ resulting from the negotiations of the Statute is that a declaration under Article 124 in effect insulates nationals of the State from prosecution by the Court. Similarly, she argues that, after expiry of the declaration, the Court will be blocked from prosecuting war crimes committed during the period of the declaration.
Amendment
In domestic legal systems, criminal law requires a large degree of flexibility. Criminal behaviour evolves rapidly, and both procedural and substantive rules need to be adjusted regularly in order to cope with change. International justice is rather more cumbersome in this respect, and, to make matters worse, the drafters of the Statute attempted to reduce or eliminate judicial discretion in a variety of areas. Judges at the ad hoc tribunals were given a wide degree of latitude in their interpretation of the crimes themselves, the definition and application of defences, and the adjustment of rules of procedure and evidence. All of this was left to them by the relatively terse words of the statutes themselves. The Rome Statute, by contrast, sets out considerably more detailed rules with respect to defences and other general principles, and then further constrains any prospect of discretion by adding the detailed Elements of Crimes and Rules of Procedure and Evidence to the mix. Experienced judges will no doubt find imaginative ways of pushing these limits to the utmost, but the fact remains that their maneuverability has been considerably hampered.
As a result, changes in the applicable law should require frequent adjustment by the States parties. Minor alterations can be effected by the Assembly of States Parties at any time through modification of the Elements and the Rules. Where amendment of the Statute is required, a complex and extremely cumbersome procedure is s et out. Amendments during the first seven years from the entry into force of the Statute are excluded altogether. Although any State party will be able to propose an amendment at any time, the Statute institutionalises the initial amendment process by providing for a Review Conference. A Review Conference is not an unusual procedure in modern multilateral treaties. In the case of the Rome Statute, seven years after the entry into force of the Statute, the depositary of the treaty, who is the Secretary-General of the United Nations, is to convene the Review Conference in order to consider any amendments. Article 123 specifically refers to changes to the list of crimes contained in Article 5 of the Statute, but adds that this in no way limits the Review Conference’s scope with respect to other amendments. A number of possible additional crimes were considered by the Rome Conference, and their advocates are likely to campaign for inclusion at the first Review Conference. These include drug-trafficking, terrorism and a range of economic crimes, most of them already proscribed in existing international treaties. The Statute also provides that the Review Conference is to consider whether or not to retain Article 124, the provision allowing States parties to deny jurisdiction over war crimes for a seven-year period. The first Review Conference will also be the occasion to consider provisions concerning the crime of aggression. At any future time, a majority of the States parties to the Statute may agree to convene additional review conferences.
In addition to the Review Conference context, amendments may also be proposed at any time subsequently. However, amendment of the Statute during the seven years that follow its entry into force would appear to be impossible. The text of an amendment is to be submitted by the proposing State party to the Secretary-General of the United Nations, who is to circulate it to all States parties. The next Assembly of States Parties will consider the amendment or, alternatively, decide to convene a review conference. Amendments are to be adopted by the Assembly of States Parties or by a review conference by consensus, failing which a majority of two-thirds of all States parties will be required.
But amendments adopted by the Assembly of States Parties or by a review conference do not automatically enter into force. The States parties to the Statute must also deposit individual instruments of ratification or accession to such amendments. As a general rule, an amendment will not come into force until seven-eighths of the States parties have filed instruments of acceptance .When an amendment has been accepted by seven-eighths of the States parties, any State party unhappy with the change may give notice that it withdraws from the Statute. If new ‘treaty crimes’ are added to the jurisdiction of the Court, the Court cannot exercise jurisdiction for any new crimes added by amendment in the territory of a State or over the nationals of a State that has not made a specific declaration of acceptance.
In the case of amendments to provisions of an institutional nature, these are in principle rather less controversial, and the Statute does not require that they be ratified by States parties. Such amendments are to be adopted by consensus or by a two-thirds vote of the Assembly of States Parties or a review conference, and come into force six months later. The expression ‘amendments of an institutional nature’ is defined: they include matters dealing with the number of judges, the composition of chambers, staff of the Court, and so on.
Signature, ratification, approval and accession
States were entitled to sign the Statute until 31 December 2000. Although signature of a treaty may also, under certain circumstances, constitute a means of indicating its acceptance, in the context of the Statute signature is only a preliminary act – ‘a first step to participation’ – and must be followed by deposit of an instrument of ratification, approval or accession for the State to become a party to the Statute. Customary law, as codified in the 1969 Vienna Convention on the Law of Treaties, requires that between the time of signature and ratification a State is obliged to refrain from acts which would defeat the object and purpose of a treaty, until it shall have made its intention clear not to become a party to the treaty.
The terms ‘ratification’, ‘acceptance’, ‘approval’ and ‘accession’ describe the international act by which a State establishes on the international plane its consent to be bound by a treaty. Although all four terms are acceptable, the acts they describe are colloquially referred to as ‘ratification’. States which have already signed the Statute deposit instruments of ratification, acceptance or approval. Those that have not deposit instruments of ‘accession’. Deposit of these instruments is done with the depositary, which is designated as the Secretary-General of the United Nations.
The Statute entered into force on the first day of the month after the sixtieth day following the date of the deposit of the sixtieth instrument of ratification, acceptance, approval or accession with the Secretary-General of the United Nations. For States that ratify, accept, approve or accede after the entry into force of the Statute, it will enter into force for them on the first day of the month after the sixtieth day following the deposit of instruments of ratification, acceptance, approval or accession. It is possible for States to withdraw from the Statute by sending a written notice to the Secretary-General of the United Nations. Withdrawal takes effect one year after the receipt of the notification, unless the State in question specifies a later date. But a State that withdraws cannot escape obligations that arose while it was a party, including financial obligations. A State that reacted to indictment of one of its senior officials by withdrawing from the Statute could not affect any pending investigation or trial. The Statute does not explain what would happen if there were enough withdrawals to bring the number of ratifications below sixty.
Authentic texts
The plenary sessions and working groups of the Rome Conference took place with simultaneous translation in all six official languages of the United Nations system, namely, English, French, Russian, Spanish, Arabic and Chinese. All documents were also available in these languages. The drafting committee, presided by M. Cherif Bassiouni, worked intensely on the various language versions in order to ensure the greatest degree of consistency and coherence. The six versions of the authentic text of the Statute, adopted the evening of 17 July 1998, are declared to be equally valid. Because of the complexities of the Statute and the haste with which the Conference operated, there were inevitably some errors in the version that was actually voted upon on 17 July. Subsequently, corrections were circulated to the participants in the Conference for their concurrence, and the official text is now slightly different from the one voted upon at the conclusion of the Conference.
Crimes prosecuted by the Court
The International Criminal Court has jurisdiction over four categories of crimes: genocide, crimes against humanity, war crimes and aggression. In both the preamble to the Statute and in Article 5, these are variously described as ‘the most serious crimes of concern to the international community as a whole’. Elsewhere, the Statute describes them as ‘unimaginable atrocities that deeply shock the conscience of humanity’ (preamble), ‘international crimes’ (preamble), and ‘the most serious crimes of international concern’ (Article 1).
The concept of ‘international crimes’ has been around for centuries. They were generally considered to be offences whose repression compelled some international dimension. Piracy, for example, was committed on the high seas. This feature of the crime necessitated special jurisdictional rules as well as cooperation between States. Similar requirements obtained with respect to the slave trade, trafficking in women and children, trafficking in narcotic drugs, hijacking, terrorism and money-laundering. It was indeed this sort of crime that inspired Trinidad and Tobago, in 1989, to reactivate the issue of an international criminal court within the General Assembly of the United Nations. Crimes of this type are already addressed in a rather sophisticated scheme of international treaties, and for this reason the drafters of the Rome Statute referred to them as ‘treaty crimes’. The crimes over which the International Criminal Court has jurisdiction are ‘international’ not so much because international cooperation is needed for their repression, although this is also true, but because their heinous nature elevates them to a level where they are of ‘concern’ to the international community. These crimes are somewhat more recent in origin than many of the so-called ‘treaty crimes’, in that their recognition and subsequent development is closely associated with the human rights movement that arose subsequent to World War II. They dictate prosecution because humanity as a whole is the victim. Moreover, humanity as a whole is entitled, indeed required, to prosecute them for essentially the same reasons as we now say that humanity as a whole is concerned by violations of human rights that were once considered to lie within the exclusive prerogatives of State sovereignty.
All four crimes within the jurisdiction of the Court were prosecuted, at least in an earlier and somewhat embryonic form, by the Nuremberg Tribunal and the other post-war courts. At Nuremberg, they were called crimes against peace, war crimes and crimes against humanity. The term ‘crimes against peace’ is now replaced by ‘aggression’; while probably not identical, the two terms largely overlap. Although the term ‘genocide’ already existed at the time of the Nuremberg trial, and it was used by the prosecutors, the indictments against Nazi criminals for the genocide of European Jews were based on the charge of ‘crimes against humanity’. But, in contemporary usage, the crime of ‘genocide’ is now subsumed within the broader concept of ‘crimes against humanity’.
The definitions of crimes within the Nuremberg Charter are relatively laconic, and the scope of the four categories of crimes as they are now conceived has evolved considerably since that time. Since Nuremberg, the concepts of crimes against humanity and war crimes have also undergone significant development and enlargement. For example, crimes against humanity can now take place in peacetime as well as during armed conflict, and war crimes are punishable whether they are committed in non-international or in international armed conflict. The evolution in the definitions is somewhat reflected in the length of the definitions in the Rome Statute. But other factors are also at work. It was easier to define the crimes at Nuremberg because it was the prosecutors who were doing the defining. When States realise they are setting a standard by which they themselves, or their leaders and military personnel, may be judged, they seem to take greater care and insist upon many safeguards. Arguments in favour of more detailed texts also relied upon principles of procedural fairness in criminal law, recognised by contemporary human rights law. At Rome, States argued that the ‘principle of legality’ dictated detailed and precise provisions setting out the punishable crimes.
The definition of the crimes in the Rome Statute is in some cases the result of recent treaties, such as the 1984ConventionAgainstTorture4 or the earlier Apartheid Convention. But much of the development in the definition of these crimes is attributed to the evolution of customary law, whose content is not always as easy to identify with clarity. The definitions of crimes set out in Articles 6 to 8, as completed by the Elements of Crimes, correspond in a general sense to the state of customary international law. The three categories of crimes are drawn from existing definitions and use familiar terminology. The drafters might have chosen to dispense with these old terms – crimes against humanity, war crimes – in favour of a genuinely original codification, defining the Court’s subject matter jurisdiction as being over ‘serious violations of human rights’. But they did not take such a route. Nevertheless, while the correspondence with customary international law is close, it is far from perfect. To answer concerns that the Statute’s definitions of crimes be taken as a codification of custom, Article 10 of the Statute declares: ‘Nothing in this Part shall be interpreted as limiting or prejudicing in any way existing or developing rules of international law for purposes other than this Statute.’ Those who argue that customary law goes beyond the Statute, for example by prohibiting the use of certain weapons that are not listed in Article 8, can rely on this provision. It will become more and more important in the future, because customary law should evolve and the Statute may not be able to keep pace with it. For example, it is foreseeable that international lawmay raise the age of prohibited military recruitment from fifteen, or consider certain weapons to be prohibited. As a result of Article 10, the Statute cannot provide comfort to those who argue against this evolution of customary law. But, of course, the logic of Article 10 cuts both ways. To those who claim that the Statute sets a new minimum standard, for example in the field of gender crimes, conservative jurists will plead Article 10 and stress the differences between the texts in the Statute and their less prolix ancestors in the Geneva Conventions and related instruments.
There would be little disagreement with the proposition that the Court is not designed to try all perpetrators of the four core crimes. It will be concerned not only with ‘the most serious crimes’ but also with the most serious criminals, generally leaders, organisers and instigators. Lower-level offenders are unlikely to attract the attention of a prosecutor whose energies must be concentrated, if only because of budgetary constraints. Article 17(1)(d) of the Statute says that the Court must declare a case inadmissible if it is not ‘of sufficient gravity’. The Prosecutor, in the exercise of his or her discretion as to whether to proceed with a case, is instructed to forego prosecution when ‘[a] prosecution is not in the interests of justice, taking into account all the circumstances, including the gravity of the crime, the interests of victims and the age or infirmity of the alleged perpetrator, and his or her role in the alleged crime’. In the case of juvenile offenders, the Statute does this explicitly, declaring simply that the Court is without jurisdiction over a person who was under the age of eighteen at the time of the alleged commission of a crime. This does not, of course, mean that a young person of seventeen cannot commit a crime against humanity or a war crime. Rather, it is a policy decision made by the drafters of the Statute that was driven by considerations about the nature of the accused rather than the nature of the crime.
In addition, all of the definitions of crimes within the jurisdiction of the Court have some form of built-in threshold that will help to focus these decisions and limit the discretion of the Prosecutor. In the case of genocide, the result is achieved by the very high level of dolus specialis or ‘special intent’ that is part of the definition of the crime. The offender must intend to destroy the targeted group in whole or in part. Many of those who participate in a genocide may well fall outside this definition. Although they are actively involved, they may lack knowledge of the context of the crime and for that reason lack the requisite intent. In the case of crimes against humanity, this issue is addressed somewhat differently, with a criterion by which the offence must be part of a ‘widespread or systematic attack’. Both genocide, by its very nature, and crimes against humanity, by the ‘widespread or systematic’ qualification, have a quantitative dimension. They are not isolated crimes, and will in practice only be prosecuted when planned or committed on a large scale. In contrast, war crimes do not, in a definitional sense, require the same quantitative scale. Asing lemurder of a prisoner of war or a civilian may constitute a war crime, but it is hard to envisage a single murder constituting genocide or a crime against humanity, at least in the absence of some broader context. For this reason, the Rome Statute attempts to narrow the scope of war crimes with a short introductory paragraph or chapeau at the beginning of Article 8: ‘The Court shall have jurisdiction in respect of war crimes in particular when committed as a part of a plan or policy or as part of a large-scale commission of such crimes.’ Many States were opposed to any such limitation on the scope of war crimes, and only agreed to the provision if the words ‘in particular’ were included. It should not be taken as any new restriction on the customary definition of war crimes but rather as a technique to limit the jurisdiction of the Court.
The Statute does not propose any formal hierarchy among the four categories of crime. There are suggestions, within customary international law, the case law of international tribunals and the Statute itself, that even among these ‘most serious crimes’, some are more serious than others. It might be argued that war crimes are less important than both genocide and crimes against humanity because Article 124 of the Statute allows States to ‘opt out’ temporarily of jurisdiction for war crimes at the time of ratification. Also, two of the defences that are codified by the Statute, superior orders and defence of property, are admissible only in the case of war crimes, implying that justification may exist for war crimes where it can never exist for genocide and crimes against humanity. The crime of ‘direct and public incitement’ exists only in the case of genocide; the drafters at Rome rejected suggestions that this inchoate form of criminality, drawn from Article III of the 1948 Genocide Convention, be broadened to encompass crimes against humanity and war crimes. Before the ad hoc tribunals for the Former Yugoslavia and Rwanda, the judges appear to be divided on whether or not there is a hierarchy between the different categories of offences, although a majority seems unfavourable to the concept.
Article 5 of the Rome Statute declares that the Court’s jurisdiction is limited to ‘the most serious crimes of concern to the international community as a whole’ and, specifically, to the crime of genocide, crimes against humanity, war crimes and the crime of aggression. A review conference, to be held seven years after the entry into force of the Statute, may consider amendments to the list of crimes contained in Article 5, and it is therefore not inconceivable that new offences may be added. The Statute also contemplates the possibility of amendments to the definitions that were adopted at Rome. Some offences, while theoretically within the subject-matter jurisdiction of the Court, are subject to further decisions and agreements. For example, the war crimes provision dealing with use of weapons and methods of warfare of a nature to cause superfluous injury or unnecessary suffering, or which are inherently indiscriminate, can only become operational when a list of such weapons and methods is included in an annex to the Statute. But the real ‘sleeper’ in the Court’s subject-matter jurisdiction is the crime of aggression. While the Rome Conference agreed that aggression should be part of the Court’s subject-matter jurisdiction, it proved impossible to agree upon either a definition or the appropriate mechanism for judicial determination of whether or not the crime had actually occurred. The definition of aggression and the conditions of its prosecution, as well as the annex enumerating prohibited weapons and methods of warfare, require a formal amendment, in accordance with Articles 121 and 123 of the Statute.
It was largely the non-aligned countries who insisted that aggression remain within the jurisdiction of the Court, and these States pursued a ‘compromise on the addition of aggression as a generic crime pending the definition of its elements by a preparatory committee or a review conference at a later stage’. The Bureau of the Rome Conference suggested, on 10 July 1998, that if generally acceptable provisions and definitions were not developed forthwith, aggression would have to be dropped from the Statute. But, literally on the final day of the conference, agreement was reached that gives the Court jurisdiction over aggression once it is defined and its scope designated in a manner consistent with the purposes of the Statute and the ideals of the United Nations. Of course, prosecutions for ‘crimes against peace’, a more ancient term used to describe the concept of aggression, were undertaken at Nuremberg and Tokyo. During the Rome Conference, both German and Japanese delegations insisted that aggression be included, expressing be wilderment over the fact that it had been an international crime in 1945 – indeed, the supreme international crime, according to the Nuremberg Tribunal – yet seemed to be one of only secondary importance half a century later. In the early years of the international criminal court project, difficulties in subsequent definition of aggression led to a suspension of the work of the International Law Commission on the Code of Crimes in 1954.
A definition was ultimately adopted, by the General Assembly in the early 1970s.18 Nevertheless, the General Assembly resolution was not designed as an instrument of criminal prosecution, although it will provide a useful basis for a definition. The reference, in Article 5(2) of the Rome Statute, to the fact that the definition ‘shall be consistent with the relevant provisions of the Charter of the United Nations’ was a ‘carefully constructed phrase’ that was ‘understood as a reference to the role the Council may or should play’. The underlying issue is the fact that Article 39 of the Charter of the United Nations declares that determining situations of aggression is a prerogative of the Security Council. If the Security Council is the arbiter of situations of aggression, would this mean that the Court can only prosecute aggression once the Council has pronounced on the subject? Such a view seems an incredible encroachment upon the independence of the Court, and would mean, for starters, that no permanent member of the Security Council would ever be subject to prosecution for aggression. Moreover, no Court can leave determination of such a central factual issue to what is essentially a political body. As Judge Schwebel of the International Court of Justice noted, a Security Council determination of aggression is not a legal assessment but is based on political considerations. The Security Council is not acting as a court.
Early in the sessions of the Preparatory Commission, a working group on aggression was set up, and it met throughout the life of the Commission in an effort to make progress on the matter. The result was a palette of half a dozen options, submitted in mid-2002. One of the proposals gives the Security Council the initiative in determining the existence of an act of aggression, after which jurisdiction over prosecution passes to the Court. But if the Security Council fails to act within a given period of time, another option allows the Court to proceed without Security Council authorisation, while yet another does not permit the Court to proceed at all. Still another option sees the determination of aggression passing to the General Assembly in cases where the Security Council does not act. Failing General Assembly action, the Court may proceed. There is also a proposal to involve the International Court of Justice, which would be requested to provide an advisory opinion on the existence of an act of aggression in specific cases. As for the definition of the crime, one proposal limits aggression to ‘the use of armed force to attack the territorial integrity or political independence of another State in violation of the Charter of the United Nations’. There is debate about whether there should be a list of acts of aggression, much like the lists for the other three crimes in the Statute, and whether or not the list should be exhaustive or merely indicative. Discussions also include suggestions to confine prosecution for the crime of aggression to persons who ‘exercise control over or direct the political or military action of a State’. This would have the consequence of excluding accomplices, for example powerful allies of a small State that might encourage it to attack another country in what could be little more than a proxy war. For example, the occupation of East Timor by Indonesia in 1974 might readily meet the proposed definition of aggression. It is widely believed to have been conducted at the instigation of United States President Gerald Ford and Secretary of State Henry Kissinger, who visited Jakarta only hours before the attack and apparently authorised it to proceed. It would be a shame if the Rome Statute would exclude similar cases of incitement or abetting of aggression, which is ordinarily punishable with respect to the other crimes within the Court’s jurisdiction.
No amendment to the Statute to define aggression and address the other issues in Article 5(2) can be entertained until 1 July 2009, at the review conference to be held seven years after the Statute’s entry into force. In September 2002, the Assembly of States Parties decided to establish a Special Working Group on the Crime of Aggression whose membership is open not only to States Parties but also to all Member States of the United Nations and specialised agencies. It is to meet during the annual sessions of the Assembly of States Parties, beginning from September 2003.
The Assembly has not closed the door on ‘inter sessional’ meetings of the Working Group, on the proviso that funding be provided by a sympathetic government.
Although the original impetus to revive the international criminal court project, in 1989, came from States concerned with matters such as international drug-trafficking and terrorism, there was ultimately no consensus on including the ‘treaty crimes’ within the jurisdiction of the Court and they were excluded at the Rome Conference. These are called ‘treaty crimes’ because they have been proscribed in a variety of multilateral conventions dealing with terrorist crimes, drug crimes and crimes against United Nations personnel. Proposals at the Rome Conference to include drug-trafficking and terrorism did not meet with sufficient consensus. Some considered that these crimes should be excluded because they are not ‘as serious’ as genocide, crimes against humanity and war crimes. In the final version of the Statute, certain crimes against United Nations personnel were incorporated within the definition of war crimes, but that is about all. The Final Act of the Rome Conference, adopted at the same time as the Statute, includes a resolution on treaty crimes recommending that the review conference consider means to enable the inclusion of crimes of terrorism and drug crimes.
Trinidad and Tobago and other Caribbean Community (Caricom) Member States expressed disappointment at the exclusion of drug-trafficking from the Court’s subject-matter jurisdiction. The attacks of 11 September 2001 revived interest in the incorporation of terrorist crimes within the Statute. Certainly, many so-called terrorist acts will fall within the ambit of crimes against humanity, or war crimes, and perhaps even genocide, as these crimes are defined in the Statute. Many authorities in the field of international criminal law characterised the destruction of the World Trade Center and the accompanying loss of life as a crime against humanity Antonio Cassese was somewhat circumspect, observing cautiously that ‘it may happen that states gradually come to share this characterisation . . .’. The problem with a distinct crime of terrorism lies in definition, it being often said that ‘one person’s terrorist is another’s freedom fighter’. Terrorism seems to have more to do with motive than with either the mental or physical elements of a crime, and this is something that is not generally part of the definitions of offences.
For the purposes of interpreting and applying the definitions of crimes found in Articles 6, 7 and 8 of the Rome Statute, reference must also be made to the Elements of Crimes, a fifty-page document adopted in June 2000 by the Preparatory Commission, and subsequently endorsed in September 2002 by the Assembly of States Parties at its first session. The Elements of Crimes are a source of applicable law for the Court, but as a form of subordinate legislation they must also be consistent with the Statute itself. The whole concept originated with the United States delegation, and while at Rome many met it with some suspicion, the idea seemed rather less harmful than many other Washington-based initiatives and it was incorporated in the Statute without great opposition. Fundamentally, the Elements reflect the continuing suspicion among States of any degree of judicial discretion.
Thus, in addition to prolix definitions of crimes, the Elements further fetter the possibilities of judicial interpretation. On a more positive note, they are somewhat easier to amend than the Statute itself, thereby allowing the Assembly of States Parties the possibility of ‘tweaking’ the definitions of crimes when this seems desirable.
Genocide
The word ‘genocide’ was coined in 1944 by Raphael Lemkin in his book on Nazi crimes in occupied Europe. Lemkin felt that the treaty regime aimed at protection of national minorities established between the two world wars had important shortcomings, amongst them the failure to provide for prosecution of crimes against groups. The term ‘genocide’ was adopted the following year by the prosecutors at Nuremberg (although not by the judges), and in 1946 genocide was declared an international crime by the General Assembly of the United Nations. The General Assembly also decided to proceed with the drafting of a treaty on genocide.
At the time, it was considered important to define genocide as a separate crime in order to distinguish it from crimes against humanity. The latter term referred to a rather wider range of atrocities, but it also had a narrow aspect, in that the prevailing view was that crimes against humanity could only be committed in association with an international armed conflict. The General Assembly wanted to go a step further, recognising that one atrocity, namely genocide, would constitute an international crime even if it were committed in time of peace. It was also hoped, by those who took the initiative in the General Assembly, that genocide would be recognised as a crime of universal jurisdiction, subject to prosecution by courts other than those where the crime took place. The price to pay, however, was an exceedingly narrow definition of the mental and material elements of the crime. This was set out in the Convention on the Prevention and Punishment of the Crime of Genocide, adopted by the General Assembly on 9 December 1948. The Convention entered into force two years later after obtaining twenty ratifications. The Convention itself has been described as the quintessential human rights treaty.
The distinction between genocide and crimes against humanity is less significant today, because the recognised definition of crimes against humanity has evolved and now unquestionably refers to atrocities committed in peacetime as well as in wartime. Today, genocide constitutes the most aggravated form of crime against humanity. The International Criminal Tribunal for Rwanda has labeled it ‘the crime of crimes’. Not surprisingly, then, it is the first crime set out in the Rome Statute and the only one to be adopted by the drafters with virtually no controversy.
Genocide is defined in Article 6 of the Rome Statute. The provision is essentially a copy of Article II of the Genocide Convention. The definition set out in Article II, although often criticized for being overly restrictive and difficult to apply to many cases of mass killing and atrocity, has stood the test of time. The decision of the Rome Conference to maintain a fifty-year old text is convincing evidence that Article 6 of the Statute constitutes a codification of a customary international norm.
Article 6 of the Rome Statute, and Article II of the Genocide Convention, define genocide as five specific acts committed with the intent to destroy a national, ethnical, racial or religious group as such. The five acts are: killing members of the group; causing serious bodily or mental harm to members of the group; imposing conditions on the group calculated to destroy it; preventing births within the group; and forcibly transferring children from the group to another group. The definition has been incorporated in the penal codes of many countries, although actual prosecutions have been rare. The 1961 trial of Adolf Eichmann in Israel was conducted under a legal provision modeled on Article II of the Genocide Convention. Only in late 1998, after the adoption of the Rome Statute, were the first significant judgments of the ad hoc tribunals issued dealing with interpretation of the norm.
It is often said that what distinguishes genocide from all other crimes is its dolus specialis or ‘special intent’. In effect, all three crimes that are defined by the Rome Statute provide for prosecution for killing or murder. What sets genocide apart from crimes against humanity and war crimes is that the act, whether killing or one of the other four acts defined in Article 6, must be committed with the specific intent to destroy in whole or in part a national, ethnical, racial or religious group as such. As can be seen, this ‘special intent’ has several components. The perpetrator’s intent must be ‘to destroy’ the group. During the debates surrounding the adoption of the Genocide Convention, the forms of destruction were grouped into three categories: physical, biological and cultural.
Cultural genocide was the most troublesome of the three, because it could well be interpreted in such a way as to include the suppression of national languages and similar measures. The drafters of the Convention considered that such matters were better left to human rights declarations on the rights of minorities and they actually voted to exclude cultural genocide from the scope of the definition. However, it can be argued that a contemporary interpreter of the definition of genocide should not be bound by the intent of the drafters back in 1948. The words ‘to destroy’ can readily bear the concept of cultural as well as physical and biological genocide, and bold judges might be tempted to adopt such progressive construction. Recent judgments of the International Criminal Tribunal for the Former Yugoslavia and of the German Constitutional Court suggest that the law is evolving in this direction. In any event, evidence of ‘cultural genocide’ has already proven to be an important indicator of the intent to perpetrate physical genocide.
The definition of genocide contains no formal requirement that the punishable acts be committed as part of a widespread or systematic attack, or aspart of a general or organised plan to destroy the group. This would seem, however, to be an implicit characteristic of the crime of genocide, although in the Jelesic case a Trial Chamber of the International Criminal Tribunal for the Former Yugoslavia entertained the hypothesis of the lone genocidal maniac. In the same case, the Appeals Chamber confirmed that ‘the existence of a plan or policy is not a legal ingredient of the crime. However, in the context of proving specific intent, the existence of a plan or policy may become an important factor in most cases.’ The Elements of Crimes adopted by the Assembly of States Parties take a slightly different perspective, requiring that an act of genocide ‘took place in the context of a manifest pattern of similar conduct directed against that group or was conduct that could itself effect such destruction’.
With the words ‘in whole or in part’ the definition indicates a quantitative dimension. The quantity contemplated must be significant, and an intent to kill only a few members of a group cannot be genocide. The prevailing view is that where only part of a group is destroyed, it must be a ‘substantial’ part. There is much confusion about this, because it is often thought that there is some precise numerical threshold of real victims before genocide can take place. But the reference to quantity is in the description of the mental element of the crime, and what is important is not the actual number of victims, rather that the perpetrator intended to destroy a large number of members of the group. Where the number of victims becomes genuinely significant is in the proof of such a genocidal intent. The greater the number of real victims, the more logical the conclusion that the intent was to destroy the group ‘in whole or in part’.
Recently, another interpretation has emerged by which genocide is also committed if a ‘significant part’ of the group is destroyed. This significant part may consist of persons of ‘special significance’ to the group, such as the leadership of the group, although in one case a Trial Chamber of the Yugoslav Tribunal extended the approach to cover men of military age.
Some judgments have also established that ‘in part’ means the crime may be committed in a very small geographic area against a group defined by its borders, such as the Muslim population of the town of Srebrenica, which was attacked by Bosnian Serb forces in July 1995.
The description of the crime of genocide concludes with the puzzling words ‘as such’. These were added in 1948 as a compromise between States that felt genocide required not only an intentional element but also a motive. The two concepts are not equivalent. Individuals may commit crimes intentionally, but for a variety of motives: greed, jealousy, hatred and so on. Proof of motive creates an additional obstacle to effective prosecution, and it is for this reason that several delegations opposed requiring it as an element of the crime. To date, courts interpreting the definition have simply avoided the question.
The definition of the mental element or mens rea of the crime of genocide, found in the chapeau of the provision, is followed by five paragraphs listing the punishable acts of genocide. The list is an exhaustive one, and cannot properly be extended to other acts of persecution directed against
ethnic minorities. Such atrocities – for example ‘ethnic cleansing’, as it is now known – will for this reason probably be prosecuted as crimes against humanity rather than as genocide.
Killing is at the core of the definition and is without doubt the most important of the five acts of genocide. The ad hoc tribunals have held that the term killing is synonymous with murder or intentional homicide (although the Elements of Crimes say that the term ‘killing’ is ‘interchangeable’ with ‘causing death’, which seems to leave room for unintentional homicide).
The second act of genocide, causing serious bodily or mental harm, refers to acts of major violence falling short of homicide. In the Akayesu decision, the Rwanda Tribunal gave rape as an example of such acts. The Elements are even more detailed, stating that such conduct may include ‘acts of torture, rape, sexual violence or inhuman or degrading treatment’.58 The third act of genocide, imposing conditions of life calculated to destroy the group, applies to cases like the forced marches of the Armenian minority in Turkey in 1915. But none of the acts defined in Article 6 consists of genocide if they are not accompanied by the specific genocidal intent. In cases where the intent falls short of the definition, prosecution may still lie for crimes against humanity or war crimes.
Crimes against humanity
Although occasional references to the expression ‘crimes against humanity’ can be found dating back several centuries, the term was first used in its contemporary context in 1915. The massacres of Turkey’s Armenian population were denounced as a crime against humanity in a declaration of three Allied powers pledging that those responsible would be held personally accountable. But, in the post-war peace negotiations, there were objections that this was a form of retroactive criminal legislation and no prosecutions were ever undertaken on an international level for the genocide of the Armenians.
The term ‘crimes against humanity’ reappeared in 1945 as one of three categories of offence within the jurisdiction of the Nuremberg Tribunal. Once again, the arguments about retroactivity resurfaced, but they were successfully rebuffed.
In 1945, there was far less legal difficulty with prosecution of Nazi war criminals for acts committed against civilians in occupied territories. International law already proscribed persecution of civilians within occupied territories, and it was a short step to define these as international crimes. But when Allied lawyers met in 1943 and 1944 to prepare the postwar prosecutions, many of them considered it legally unsound to hold the Nazis responsible for crimes committed against Germans within the borders of Germany.
Not without considerable pressure from Jewish non-governmental organizations, there was an important change in thinking and it was agreed to extend the criminal responsibility of the Nazis to internal atrocities under the rubric ‘crimes against humanity’. But even the Allies were uncomfortable with the ramifications that this might have with respect to the treatment of minorities within their own countries, not to mention their colonies. For this reason, they insisted that crimes against humanity could only be committed if they were associated with one of the other crimes within the Nuremberg Tribunal’s jurisdiction, that is, war crimes and crimes against peace. In effect, they had imposed a requirement or nexus, as it is known, between crimes against humanity and international armed conflict. Lyle Sunga describes the Nuremberg Charter’s approach to crimes against humanity as the Siamese twin of war crimes, unnaturally joined. Indeed, we refer to the Nuremberg prosecutions as ‘war crimes trials’, and the restrictive terminology requiring a nexus with armed conflict continues to haunt the international prosecution of human rights atrocities, many of which are actually committed during peacetime. Dissatisfaction with such a limitation emerged within weeks of the Nuremberg judgment. The United Nations General Assembly decided to define the most egregious form of crime against humanity, namely genocide, as a distinct offence that could be committed in time of peace as well as in wartime. Over the years since 1945, there were several variants on the definition of crimes against humanity, some of them eliminating the nexus with armed conflict. This prompted many to suggest that, from the standpoint of customary law, the definition had evolved to cover atrocities committed in peacetime. But the Security Council itself muddied the waters in 1993 when it established the International Criminal Tribunal for the Former Yugoslavia. Article 5 of that court’s Statute says that crimes against humanity must be committed ‘in armed conflict, whether international or internal in character’. A year later, however, the Security Council did not insist upon the nexus when it established the International Criminal Tribunal for Rwanda. In 1995, in its celebrated Tadic jurisdictional decision, the Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia described the nexus as ‘obsolescent’, and said that ‘there is no logical or legal basis for this requirement and it has been abandoned in subsequent State practice with respect to crimes against humanity’.64 Since then, the Appeals Chamber has described the nexus with armed conflict set out in Article 5 of the Statute of the Yugoslav Tribunal as being ‘purely jurisdictional’.65 Article 7 of the Rome Statute codifies this evolution in the definition of crimes against humanity, although an argument that customary international law still requires the nexus is not inconceivable, based upon the fact that at Rome ‘a significant number of delegations argued vigorously that crimes against humanity could only be committed during an armed conflict’. As with genocide, there is nothing specific to indicate that the crime can be committed in the absence of international armed conflict, but this is undoubtedly implicit. Article 7 begins with an introductory paragraph or chapeau stating: ‘For the purpose of this Statute, “crime against humanity” means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack.’ Like genocide, then, there is an important threshold that elevates the ‘acts’ set out later in the provision to the level of crimes against humanity.
First among them, and the subject of great controversy at the Rome Conference, is the requirement that these acts be part of a ‘widespread or systematic attack’. Some of the earlier proposals had required that the attack be widespread and systematic. The push to present these two conditions as alternatives was supported by the first major judgment of the International Criminal Tribunal for the Former Yugoslavia only a year earlier, in the Tadic case. But the apparent broadening of the threshold may be a deception, because further on in Article 7 the term ‘attack’ is defined as ‘a course of conduct involving the multiple commission of acts referred to in paragraph 1 against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack’. It seems, therefore, that the term ‘attack’ has both widespread and systematic aspects. In addition, the attack must be directed against a civilian population, distinguishing it from many war crimes, which may be targeted at combatants or at civilians. The attack need not be a military attack.
Thus, judges at the ICC will have plenty of encouragement from the ad hoc tribunals should they wish to stretch the ambit of crimes against humanity. But they will have to reckon with the plain words of the Rome Statute, which indicate a more restrictive view, should they attempt to do so.
The chapeau of paragraph 1 of Article 7 is followed by a list of eleven acts of crimes against humanity. At Nuremberg, the list was considerably shorter. It has been enriched principally by developments in international human rights law. Accordingly, there are subparagraphs dealing with specific types of crimes against humanity that have already been the subject of prohibitions in international law, namely, apartheid, torture and enforced disappearance. Some terms that were recognised at the time of Nuremberg have also been developed and expanded. For example, to ‘deportation’ is now added the words ‘forcible transfer of population’, recognising our condemnation of what in recent years has been known as ‘ethnic cleansing’, particularly when this takes place within a country’s own borders. However, proposals to include other new acts of crimes against humanity, including economic embargo, terrorism and mass starvation, did not rally sufficient support. The most dramatic example of enlarging the scope of the crime is found in the very substantial list of ‘gender crimes’. The Nuremberg Charter did not even recognise rape as a form of crime against humanity, at least explicitly, although this was corrected by judicial interpretation as well as in the texts of subsequent definitions. The Rome Statute goes much further, referring to ‘[r]ape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity’. The term ‘forced pregnancy’ was the most problematic, because some believed it might be construed as creating an obligation upon States to provide women who had been forcibly impregnated with access to abortion. A definition of the term was agreed to: ‘“Forced pregnancy” means the unlawful confinement, of a woman forcibly made pregnant, with the intent of affecting the ethnic composition of any population or carrying out other grave violations of international law. This definition shall not in any way be interpreted as affecting national laws relating to pregnancy.’
The second sentence was added to reassure some States that the Rome Statute would not conflict with anti-abortion laws. It is also possible to prosecute sexual violence as an act of torture. In Kunarac, the Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia said that sexual violence necessarily gives rise to severe pain or suffering, whether physical or mental, adding that it was not necessary to provide visual evidence of suffering by the victim, as this could be assumed.
Rape is not defined in the Rome Statute, and at the time the drafters may have felt it was obvious enough to be left to the judges to figure out. Within a few months of the adoption of the Rome Statute, judgments of the ad hoc tribunals had developed two somewhat different definitions of the crime of rape. The first was proposed by the Rwanda Tribunal in Akayesu, which warned that ‘the central elements of the crime of rape cannot be captured in a mechanical description of objects and body parts’. It defined the crime as ‘a physical invasion of a sexual nature, committed on a person under circumstances which are coercive’.83 The definition was broad enough to encompass forced penetration by the tongue of the victim’s mouth, which most legal systems would not stigmatise as a rape, although it might well be prosecuted as a formof sexual assault. Subsequently, a Trial Chamber of the Yugoslav Tribunal reverted to a more mechanical and technical definition, holding rape to be ‘the sexual penetration, however slight: (a) of the vagina or anus of the victim by the penis of the perpetrator or any other object used by the perpetrator; or (b) of the mouth of the victim by the penis of the perpetrator’. The Elements of Crimes lean towards the second of these approaches, but with some slight divergences: ‘The perpetrator invaded the body of a person by conduct resulting in penetration, however slight, of any part of the body of the victim or of the perpetrator with a sexual organ, or of the anal or genital opening of the victim with any object or any other part of the body.’ Many legal systems consider that only a woman may be a victim of rape. The Elements of Crimes provide a signal that men may also be victims of the crime in a footnote indicating that ‘[t]he concept of “invasion” is intended to be broad enough to be gender-neutral’. Although Article 7 expands the scope of crimes against humanity, in some respects it may also limit it. For example, the Statute defines persecution as a punishable act: ‘Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court.’ The list of groups or collectivities is considerably larger than any previous definitions.
Article 7 concludes with two further paragraphs that endeavour to define some of the more difficult terms of paragraph 1. Accordingly, the term ‘attack’ is defined, as explained above, as well as ‘extermination’, ‘enslavement’, ‘deportation or forcible transfer of population’, ‘torture’, ‘forced pregnancy’, ‘persecution’, ‘the crime of apartheid’ and ‘enforced disappearance of persons’. Some of these definitions reflect customary law, but some clearly go further. They are also influenced by, and have themselves influenced, the case law of the ad hoc tribunals.
For example, Article 7(2) (b) describes the crime against humanity of ‘extermination’ as ‘the intentional infliction of conditions of life, inter alia the deprivation of access to food and medicine, calculated to bring about the destruction of part of a population’. Noting that previous judgments had not defined the term, a Trial Chamber of the Yugoslav Tribunal adopted the definition proposed in the Rome Statute. It said that insertion of this provision means ‘that the crime of extermination may be applied to acts committed with the intention of bringing about the death of a large number of victims either directly, such as by killing the victim with a firearm, or less directly, by creating conditions provoking the victim’s death’. The Trial Chamber also referred to the Elements of Crimes, which state that ‘the perpetrator [should have] killed one or more persons’ and that the conduct should have been committed ‘as part of a mass killing of members of a civilian population’.
Torture is defined by Article 7(2)(e) as ‘the intentional infliction of severe pain or suffering, whether physical or mental, upon a person in the custody or under the control of the accused; except that torture shall not include pain or suffering arising only from, inherent in or incidental to, lawful sanctions’.
There is nothing here to suggest the perpetrator must be in some official capacity, or that the torture must be conducted for a prohibited purpose. Yet, Article 1 of the Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment includes, in its definition of torture, the requirement that it be inflicted ‘for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity’. The ad hoc tribunals have regularly described the definition in the Convention against Torture as a reflection of customary international law. However, recent decisions take the view, consistent with the text of the Rome Statute, that customary international law does not require that torture be committed by a person acting in an official capacity. In one ruling, a Trial Chamber of the Yugoslav Tribunal specifically referred to the Rome Statute as evidence that customary law does not impose an official capacity criterion as part of the crime of torture.
A special provision defines ‘gender’, not only for the purposes of crimes against humanity but also for whenever else it may be used in the Statute. In a formulation borrowed from the 1995 Beijing Conference, Article 7 states that ‘it is understood that the term “gender” refers to the two sexes, male and female, within the context of society’.
War crimes
The lengthiest provision defining offences within the jurisdiction of the International Criminal Court is Article 8, entitled ‘War crimes’. This is certainly the oldest of the four categories. War crimes have been punished as domestic offences probably since the beginning of criminal law. Moreover, they were the first to be prosecuted pursuant to international law. The trials conducted at Leipzig in the early 1920s, as a consequence of Articles 228 to 230 of the Treaty of Versailles, convicted a handful of German soldiers of ‘acts in violation of the laws and customs of war’. The basis in international law for these offences was the Regulations annexed to the 1907 Hague Convention IV. And while that instrument had not originally been conceived of as a source of individual criminal responsibility, its terms had been the basis of the definitions of war crimes by the 1919 Commission on Responsibilities. Certainly, from that point on, there is little argument about the existence of war crimes under international law. War crimes were subsequently codified in the Nuremberg Charter, where they are defined in a succinct provision:
Violations of the laws or customs of war] shall include, but not be limited to, murder, ill-treatment or deportation to slave labour or for any other purpose of civilian population of or in occupied territory, murder or ill-treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns or villages, or devastation not justified by military necessity.
Four years later, in the ‘grave breaches’ provisions of the four Geneva Conventions of 1949, a second codification was advanced: Willful killing, torture or inhuman treatment, including biological experiments, willfully causing great suffering or serious injury to body or health, unlawful deportation or transfer or unlawful confinement of a protected person, compelling a protected person to serve in the forces of a hostile Power, or willfully depriving a protected person of the rights of fair and regular trial prescribed in the present Convention, taking of hostages and extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly.
Both of these provisions do not by any extent cover the entire range of serious violations of the laws of war. They extend only to the most severe atrocities, and their victims must be, by and large, civilians or non-combatants. Moreover, these provisions only contemplate armed conflicts of an international nature. Until the mid-1990s, there was considerable confusion about the scope of international criminal responsibility for war crimes. Some considered that the law of war crimes had been codified and that consequently, since 1949, the concept was limited to grave breaches of the Geneva Conventions. But the Conventions only covered what is known as ‘Geneva law’, addressing the protection of the victims of armed conflict. War crimes as conceived at Nuremberg were derived from ‘Hague law’, which focused on the methods and materials of warfare. In any case, beyond these two categories there seemed to be little doubt that international criminal responsibility did not extend to internal armed conflicts. Indeed, when the 1949 Geneva Conventions were updated with two additional protocols in 1977, the drafters quite explicitly excluded any suggestion that there could be ‘grave breaches’ during a non-international armed conflict.
This conception of the law of international criminal responsibility was reflected in the Statute of the International Criminal Tribunal for the Former Yugoslavia, adopted in May 1993. At the time, the Secretary-General made it clear that the Statute would not innovate and that it would confine itself to crimes generally recognised by customary international law. Accordingly, there were two separate provisions, Article 2, covering ‘grave breaches’ of the Geneva Conventions, and Article 3, addressing the ‘Hague law’ violations of the ‘laws and customs of war’. But movement was afoot, and a year later, when it adopted the Statute of the International Criminal Tribunal for Rwanda, the Security Council recognised the punishability of war crimes in internal armed conflict. A year later, in its first major judgment, the Appeals Chamber of the ICTY stunned international lawyers by issuing a broad and innovative reading of the two categories of war crimes in the ICTY Statute, confirming the fact that international criminal responsibility included acts committed during internal armed conflict. In Tadic, the judges in effect read this in as a component of the rather archaic term ‘laws or customs of war’. These developments were on the ground that this was dictated by the evolution of customary law. Their interpretation was open to criticism as a form of retroactive legislation. Yet doubts about the broadening of the scope of war crimes were laid to rest at the Rome Conference in 1998, when States confirmed that they were prepared to recognise responsibility for war crimes in non-international armed conflict.
This is notably the case with so-called ‘gender crimes’. Rape has always been considered a war crime, although it was not mentioned as such in either the Nuremberg Charter or the Geneva Conventions, which probably reflects the fact that it was not always prosecuted with great diligence. The Rome Statute provides a detailed enumeration of rape and similar crimes, the result of vigorous lobbying by women’s groups prior to and during the Rome Conference. The real question is whether this rather prolix provision actually offers women better protection than the somewhat archaic yet potentially large terms of Geneva Convention IV: ‘Women shall be especially protected against any attack on their honour, in particular against rape, enforced prostitution, or any form of indecent assault.’ But as all criminal lawyers know, there is a dark side to detailed codification.
The greater the detail in the provisions, the more loopholes exist for able defence arguments. It may well be wrong to interpret the lengthy text of Article 8 as an enlargement of the concept of war crimes. In Kupreskic, the Yugoslav Tribunal warned that ‘[a]n exhaustive categorization would merely create opportunities for evasion of the letter of the prohibition’. The extremely precise and complex provisions of Article 8 are mainly due to the nervousness of States about the scope of war crimes prosecutions, and arguably have the effect of narrowing the potential scope of prosecutions.
Much of this was cloaked in arguments about the need for precision in legal texts and the sanctity of the principle of legality. The detailed terms of Article 8 may indirectly contribute to impunity in their inability to permit dynamic or evolutive interpretations. As the Appeals Chamber of the Yugoslav Tribunal recently recalled, citing Nuremberg, the laws of armed conflict ‘are not static, but by continual adaptation follow the needs of a changing world’. In customary law, a major distinction between war crimes and the other categories, crimes against humanity and genocide, is that the latter two have jurisdictional thresholds while the former does not. Crimes against humanity must be ‘widespread’ or ‘systematic’, and genocide requires a very high level of specific intent. War crimes, on the other hand, can in principle cover even isolated acts committed by individual soldiers acting without direction or guidance from higher up. While genocide and crimes against humanity would seem to be prima facie serious enough to warrant intervention by the Court, this will not always be the case for war crimes. As a result, Article 8 begins with what has been called a ‘non-threshold threshold’. The Court has jurisdiction over war crimes ‘in particular when committed as a part of a plan or policy or as part of a large-scale commission of such crimes’. The language brings war crimes closer to crimes against humanity. The Rome Conference found middle ground with the words ‘in particular’, thereby compromising between those favouring a rigid threshold and those opposed to any such limitation on jurisdiction.
The preliminary issue to be determined in charges under Article 8 is the existence of an armed conflict, be it international or non-international. In terms of time, some war crimes can be committed after the conclusion of overt hostilities, particularly those relating to the repatriation of prisoners of war. Therefore, war crimes can actually be committed when there is no armed conflict or, in other words, after the conclusion of the conflict. From the standpoint of territory, war crimes law applies in some cases to the entire territory of a State, and not just the region where hostilities have been committed. The International Criminal Tribunal for the Former Yugoslavia has written that ‘an armed conflict exists whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within a State’.
The Elements of Crimes clarify that, while the Prosecutor must establish these threshold elements of war crimes, he or she need not prove that the perpetrator had knowledge of whether or not there was an armed conflict, or whether it was international or non-international. According to the Elements, ‘[t]here is only a requirement for the awareness of the factual circumstances that established the existence of an armed conflict that is implicit in the terms “took place in the context of and was associated with” ’.
Not every act listed under Article 8 and committed while a country is at war will constitute a punishable crime before the Court. There must also be a nexus between the act perpetrated and the conflict. This implied requirement has been developed in the case law of the ad hoc tribunals. In Kunarac, a Trial Chamber of the Yugoslav Tribunal explained that: the criterion of a nexus with the armed conflict . . . does not require that the offences be directly committed whilst fighting is actually taking place, or at the scene of combat. Humanitarian law continues to apply in the whole of the territory under the control of one of the parties, whether or not actual combat continues at the place where the events in question took place. It is therefore sufficient that the crimes were closely related to the hostilities occurring in other parts of the territories controlled by the parties to the conflict. The requirement that the act be closely related to the armed conflict is satisfied if as in the present case, the crimes are committed in the aftermath of the fighting, and until the cessation of combat activities in a certain region, and are committed in furtherance or take advantage of the situation created by the fighting.
In Akayesu, the Appeals Chamber of the International Criminal Tribunal for Rwanda ruled that there were no particular restrictions on persons who could be charged with war crimes. It overruled the Trial Chamber, which had refused to convict local officials of war crimes, despite accepting the existence of an internal armed conflict within Rwanda in 1994. For the Trial Chamber, even proof that an accused wore military clothing, carried a rifle, and assisted the military is insufficient to establish that he ‘acted for either the Government or the [Rwandese Patriotic Front] in the execution of their respective conflict objectives’. According to the Appeals Chamber, ‘international humanitarian law would be lessened and called into question’ if certain persons were exonerated from individual criminal responsibility for war crimes under the pretext that they did not belong to a specific category.
The first category of war crimes enumerated in Article 8 is that of ‘grave breaches’ of the Geneva Conventions. The four Geneva Conventions were adopted on 12 August 1949, replacing an earlier and rather more summary protection contained in the two Geneva Conventions of 1929. The four Conventions are distinguished by the group of persons being protected: Convention I protects wounded and sick in land warfare; Convention II protects wounded, sick and shipwrecked in sea warfare; Convention III protects prisoners of war; and Convention IV protects civilians. Probably the most significant difference between the two generations of treaties is that the 1949 Conventions finally provided a detailed protection of civilian noncombatants. But another very important development in the 1949 treaties was the recognition of individual criminal responsibility for certain particularly severe violations of the treaties, known as ‘grave breaches’. This was an incredible innovation at the time, the recognition by States that they were obliged to investigate and prosecute or extradite persons suspected of committing ‘grave breaches’, irrespective of their nationality or the place where the crime was committed. By comparison, only months earlier the United Nations General Assembly had refused, in the case of genocide, to recognise such broad obligations, as well as a right to prosecute on the basis of universal jurisdiction. The obligation set out in the ‘grave breach’ provisions of the Geneva Conventions is often characterized by the Latin phrase aut dedere aut judicare, meaning ‘extradite or prosecute’.
The ‘grave breaches’ of the 1949 Conventions are limited in scope. According to the fourth or ‘civilian’ Convention, grave breaches consist of: willful killing, torture or inhuman treatment, including biological experiments, willfully causing great suffering or serious injury to body or health, unlawful deportation or transfer or unlawful confinement of a protected person, compelling a protected person to serve in the forces of a hostile Power, or willfully depriving a protected person of the rights of fair and regular trial prescribed in the present Convention, taking of hostages and extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly.
The other three Conventions contain somewhat shorter enumerations, but the fundamentals remain the same. In terms of application, however, what was in 1949 a very radical step of defining international crimes and responsibilities was accompanied by a narrowness in application: ‘grave breaches’ could only be committed in the course of international armed conflict. The ‘grave breaches’ of the Geneva Conventions are set out in Article 8(2)(a) of the Rome Statute. Nothing in paragraph (a) insists that these apply only to international armed conflict, although the context suggests that this must necessarily be the case. The chapeau describes grave breaches as acts committed ‘against persons or property protected under the provisions of the relevant Geneva Convention’. There are no significant changes in the wording between the provisions of the four Conventions and the Rome Statute. In the Tadic decision, the Yugoslav Tribunal held that the grave breaches regime applied only to international armed conflict, even though this was not stated in the Tribunal’s Statute. An armed conflict may take place within the borders of a single State and yet it may still be international in nature if, for example, the troops of another State intervene in the conflict and even where some participants in the internal armed conflict act on behalf of this other State.
Victims of ‘grave breaches’ must be ‘protected persons’. In the case of the first three Conventions, this means members of the armed forces of a party to the international armed conflict who are no longer engaged in hostilities due to injury or capture. With respect to the fourth Convention, protected persons must be ‘in the hands of a Party to the conflict or Occupying Power of which they are not nationals’. The Yugoslav Tribunal has declared that even ‘nationals’, in the traditional international law sense, are protected if they cannot rely upon the protection of the State of which they are citizens because, for example, they belong to a national minority that is being victimized. According to the Elements of Crimes, the perpetrator need not know the nationality of the victim, it being sufficient that he or she knew that the victim belonged to an adverse party to the conflict. Because there is so little case law in the application of the Geneva Conventions, many of the terms used in the Statute (and the Conventions) still await judicial interpretation. For example, what is the difference between ordinary ‘killing’, a familiar expression in national criminal law systems, and ‘willful killing’, the term used in the Conventions? And what of ‘appropriation of property’, which must be carried out not only ‘unlawfully’ but also ‘wantonly’? Subsequent to the adoption of the Statute, participants in the Preparatory Commission devoted a great deal of attention to specifying the scope of these provisions. In their work, they were guided mainly by the Commentaries to the Geneva Conventions, prepared by the International Committee of the Red Cross during the 1950s. The Commentaries are based largely on the travaux pr´eparatoires of the Conventions and constitute the principal interpretative source thereof.
The second category of war crimes that is listed in Article 8 of the Rome Statute is ‘other serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law’. The wording makes it quite explicit that this category, found in paragraph (b), is, like the crimes in paragraph (a), confined to international armed conflict. The list consists of crimes generally defined as ‘Hague law’, because these are principally drawn from the Regulations annexed to the 1907 Hague Convention IV. There is no requirement, unlike the situation for ‘grave breaches’, that the victims be ‘protected persons’. Indeed, the overall focus of Hague law is on combatants themselves as victims. Hague law is concerned not so much with the innocent victims of war as with its very authors, the combatants. More than Geneva law, then, it is the continuation of ancient rules of chivalry and similar systems reflecting a code of conduct among warriors. In fact, some of the language sounds positively anachronistic. In the past, this was also the source used by the Commission on Responsibilities that explored the notion of war crimes following World War I, as well as of the post-World War II tribunals at Nuremberg, Tokyo and elsewhere. Unlike the Geneva Conventions, which have a rigorous codification of ‘grave breaches’, the notion of ‘serious violations of the laws and customs of war’ is rather malleable and has evolved over the years ?
In addition to those provisions reflecting the terms of the 1907 instrument, there are also some ‘new’ crimes in paragraph (b). These were in a sense codified by the drafters at Rome and it is not improbable that those accused in the future will argue that they were not part of customary law applicable at the time the Statute was adopted. Among the new provisions included in Article 8(2) (b) are those concerning the protection of humanitarian or peacekeeping missions and prohibiting environmental damage. Probably the most controversial provision was sub-paragraph (viii), defining as a war crime ‘the transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory’. The provision governs not only population transfer within the occupied territory, but also the transfer by an occupying power of parts of its own civilian population into the occupied territory. Israel felt itself particularly targeted by the provision, and in a speech delivered on the evening of 17 July at the close of the Rome Conference, it announced it would vote against the Statute because of its irritation that a crime not previously considered to be part of customary international law had been included in the instrument because of political exigencies. But including transfer of a civilian population to an occupied territory within the definition of war crimes is perfectly consistent with the approach of the Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia in Tadic, whereby serious violations of the Geneva Conventions that are not deemed to be ‘grave breaches’ may nevertheless constitute violations of the laws or customs of war. Several of the provisions of paragraph (b) deal with prohibited weapons.
These include poison or poisoned weapons, asphyxiating, poisonous or other gases, and bullets that expand or flatten easily in the human body. The casual reader of the Statute might get the impression that it was drafted in the nineteenth century, as these horrific weapons seem rather obsolete alongside modern-day weapons, including those of mass destruction, like land mines, chemical and biological weapons, and nuclear weapons. Such, however, are the consequences of diplomatic negotiations, especially in the context of an international system where a handful of States monopolies the production and control of the most nefarious weapons. The nuclear powers resisted any language that might impact upon their own prerogatives, such as a reference to weapons that might in the future be deemed contrary to customary international law. They had already had a close scrape in the International Court of Justice in 1996, which came near to an outright prohibition of nuclear weapons. As a result, they insisted upon specifying that ‘material and methods of warfare which are of a nature to cause superfluous injury or unnecessary suffering or which are inherently indiscriminate’ also be the subject of a comprehensive prohibition included in an annex to the Statute, yet to be prepared. With the exclusion of nuclear weapons, some of the non-nuclear States in the developing world objected to language that would explicitly prohibit the ‘poor man’s atomic bomb’, that is, chemical and biological weapons. The result, then, is a shameful situation where poisoned arrows and hollow bullets are forbidden yet nuclear, biological and chemical weapons, as well as anti-personnel land mines, are not.
As with crimes against humanity, the ‘laws and customs of war’ provision significantly develops the area of sexual offences. The text is essentially new law. It prohibits rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization or any other form of sexual violence also constituting a grave breach of the Geneva Conventions. Another provision consisting of new law makes it a crime to conscript or enlist children under the age of fifteen into the national armed forces or to use them to participate actively in hostilities. This wording is drawn from the 1989 Convention on the Rights of the Child as well as Additional Protocol I to the Geneva Conventions. The term ‘recruiting’ appeared in an earlier draft, but was replaced with ‘conscripting or enlisting’ to suggest something more passive, such as putting the name of a person on a list. Secondly, the word ‘national’ was added before ‘armed forces’ to allay concerns of several Arab States who feared that the term might cover young Palestinians joining the intifadah revolt. Interestingly, the provision in the Convention on the Rights of the Child has been deemed too moderate by many States. In May 2000, the United Nations General Assembly adopted a protocol to the Convention increasing the age to eighteen.
The category of ‘serious violations of the laws and customs of war’ also contains several offences drawn from Protocol Additional I to the Geneva Conventions of 1949. Protocol Additional I, adopted in 1977, expanded somewhat upon the definition of grave breaches in the 1949 Conventions, although it also slightly watered down the obligations upon States that flow from them. Interestingly, the Rome Statute includes some of these new ‘grave breaches’ within paragraph (b) rather than in paragraph (a), but it does not include them all.137 Unlike the four Geneva Conventions, which have benefitted from near-universal ratification, Protocol Additional I still enjoys far less unanimity, and its reflection in Article 8 of the Rome Statute testifies to the ongoing uncertainty with respect to its definitions of ‘grave breaches’. Protocol Additional I applies to a somewhat broader range of conflicts than the four Geneva Conventions, and the Prosecutor might well argue before the International Criminal Court that the specific provisions in Article 8 derived from Protocol Additional I can be committed in ‘armed conflicts which peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self determination’.
The two succeeding categories of war crimes in Article 8 apply to non international armed conflict, a far more controversial area of international law, at least in an historical sense. As early as 1949, and even before, States were prepared to recognise international legal obligations, including international criminal responsibility, arising between them. However, they were far more hesitant when it came to internal conflict or civil war, which many considered to be nobody’s business but their own. In the Tadic jurisdictional decision, the Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia pointed to evidence that atrocities committed in internal armed conflict had been proscribed by international law as early as the terror bombing of civilians during the Spanish Civil War. The 1949 Geneva Conventions refer to non-international armed conflict in only one provision, known as ‘common Article 3’ because it is identical in all four Conventions.
Attempts to expand the scope of common Article 3 in 1977, in the adoption of Protocol Additional II, were only moderately successful. The Protocol elaborates somewhat on the laconic terms of common Article 3, but does not extend the concept of ‘grave breaches’ to non-international armed conflict, nor does it recognise prisoner of war status in such wars. Therefore, subject to a few minor exceptions, paragraphs (c) and (d) of Article 8 apply to non-international armed conflicts contemplated by common Article 3 of the four Geneva Conventions, while paragraphs (e) and (f) apply to non-international armed conflicts within the scope of Protocol Additional II. The threshold of application of common Article 3 is somewhat lower. The scope of both provisions is limited in a negative sense, it being stated that they apply to armed conflicts not of an international character, but not ‘to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature’. But the Protocol Additional II crimes listed in paragraph (e) apply to ‘armed conflicts that take place in the territory of a State when there is protracted armed conflict between governmental authorities and organized armed groups or between such groups’. There is a further limitation on the common Article 3 crimes: ‘Nothing in paragraphs 2(c) and (d) shall affect the responsibility of a Government to maintain or re-establish law and order in the State or to defend the unity and territorial integrity of the State, by all legitimate means.’ These thresholds, drawn from the Geneva Conventions and Protocol Additional II, have been constantly criticised for their narrow scope. In effect, in cases of internal disturbances and tensions, atrocities may be punishable as crimes against humanity but they will not be punishable, at least by the International Criminal Court, as war crimes.
The common Article 3 crimes listed in paragraph (c), like the ‘grave breaches’ in paragraph (a), must be committed against ‘protected persons’. The latter are defined, for the purposes of common Article 3, as ‘persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention or any other cause’. The punishable acts consist of murder, mutilation, cruel treatment and torture, outrages upon personal dignity, taking of hostages and summary executions. They represent, in reality, a common denominator of core human rights. The International Committee of the Red Cross has often described common Article 3 as a ‘mini-convention’ of the laws applicable to non-international armed conflict. According to the Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia, the rules contained in common Article 3 are the ‘quintessence’ of the humanitarian norms contained in the Geneva Conventions as a whole. They ‘also constitute a minimum yardstick, in addition to the more elaborate rules which are also to apply to international conflicts; and they are rules which, in the Court’s opinion, reflect what the [International Court of Justice] in 1949 called “elementary considerations of humanity” ’.
The crimes listed in paragraph (e) are largely drawn from Protocol Additional II, and address attacks that are intentionally directed against civilians, culturally significant buildings, hospitals and Red Cross and Red Crescent units and other humanitarian workers such as peacekeeping missions. Nevertheless, not all serious violations of Protocol Additional II are included in Article 8 of the Statute. A detailed codification of sexual or gender crimes, similar to the one in paragraph (b), is also included. There is a prohibition on child soldiers under the age of fifteen. A number of offences concern the conduct of belligerents amongst themselves that echo the provisions applicable to international armed conflict.
Other offences
The Court is also given jurisdiction over what are called ‘offences against the administration of justice’, when these relate to proceedings before the Court. The Statute specifies that such offences must be committed intentionally. These are: perjury or the presentation of evidence known to be false or forged; influencing or interfering with witnesses; corrupting or bribing officials of the Court or retaliating against them; and, in the case of officials of the Court, soliciting or accepting bribes. The Court can impose a term of imprisonment of up to five years or a fine upon conviction. States Parties are obliged to provide for criminal offences of the same nature with respect to offences against the administration of justice that are committed on their territory or by their nationals. The Court can also ‘sanction’ misconduct before the Court, such as disruption of its proceedings or deliberate refusal to comply with its directions. But, unlike the case of ‘offences against the administration of justice’, the measures available are limited to the temporary or permanent removal from the courtroom and a fine of up to € 2,000.
Jurisdiction and admissibility
One of the most delicate issues in the creation of the International Criminal Court was the determination of its territorial and personal jurisdiction. Although there were useful models for many aspects of international justice, never before had the international community attempted to create a Court with such general scope and application. The Nuremberg Tribunal had exercised jurisdiction ‘to try and punish persons who, acting in the interests of the European Axis countries, whether as individuals or as members of organizations’ had committed one of the crimes within the Tribunal’s subject-matter jurisdiction. Thus, its jurisdiction was personal in nature; defendants had to have acted in the interests of the European Axis countries. The jurisdiction of the International Criminal Tribunal for the Former Yugoslavia is confined to crimes committed on the territory of the former Yugoslavia, subsequent to 1991. The jurisdiction is therefore territorial in nature. The International Criminal Tribunal for Rwanda has jurisdiction over crimes committed in Rwanda during 1994, and over crimes committed by Rwandan nationals in neighbouring countries in the same period.
Accordingly, its jurisdiction is both territorial and personal. The basic difference with these precedents is that the International Criminal Court is being created with the consent of those who will themselves be subject to its jurisdiction. They have agreed that it is crimes committed on their territory, or by their nationals, that may be prosecuted. These are the fundamentals of the Court’s jurisdiction. The jurisdiction that the international community has accepted for its new Court is narrower than the jurisdiction that individual States are entitled to exercise with respect to the same crimes. Moreover, the drafters of the Rome Statute sought to limit the ability of the Court to try cases over which it has, at least in theory, jurisdiction. Consequently, they have required that the State’s own courts get the first bite at the apple. Only when the domestic justice system is ‘unwilling’ or ‘unable’ to prosecute can the International Criminal Court take over. This is what the Statute refers to as admissibility.
The Rome Statute distinguishes between these two related concepts, jurisdiction and admissibility. Jurisdiction refers to the legal parameters of the Court’soperations, in termsof subject matter (jurisdiction ratione materiae), time (jurisdiction ratione temporis) and space (jurisdiction ratione loci) as well as over individuals (jurisdiction ratione personae). The question of admissibility arises at a subsequent stage, and seeks to establish whether matters over which the Court properly has jurisdiction should be litigated before it. To a large extent, the question of jurisdiction concerns the Court’s consideration of a ‘situation’ in which a crime has been committed, whereas, by the time the issue of admissibility is being examined, prosecution will necessarily have progressed to the identification of a ‘case’. The Court may have jurisdiction over a ‘situation’, because it arises within the territory of a State party or involves its nationals as perpetrators, yet a specific ‘case’ will be inadmissible because the individual suspect is being prosecuted by a national legal system. ‘Admissibility’ seems to suggest a degree of discretion, whereas the rules of jurisdiction are strict and brook no exception. The Court must always satisfy itself that it has jurisdiction over a case, whether or not the parties raise the issue, whereas its consideration of admissibility appears to be only permissive. Nevertheless, the Courtmay decide to examine the admissibility of a case on its own initiative, even if the issue is not raised by one of the parties. According to JohnHolmes, ‘[a]dmissibility, on the other hand, was less the duty of the Court to establish than a bar to the Court’s consideration of a case’. But the line between jurisdiction and admissibility is not always easy to discern, and provisions in the Statute that seem to address one or the other concept appear to overlap. For example, in a clearly jurisdictional provision, the Statute declares that the Court has jurisdiction over war crimes ‘in particular when committed as a part of a plan or policy or as part of a large-scale commission of such crimes’. Yet, in a provision dealing with admissibility, the Court is empowered to refuse to hear a case that ‘is not of sufficient gravity’. In practice, the implications of the two provisions, one addressing jurisdiction while the other addresses admissibility, may be rather comparable, in that the Court will decline to prosecute less serious or relatively minor crimes.
Subject matter (ratione materiae) jurisdiction
Subject matter jurisdiction refers to the crimes which the Court may prosecute: genocide, crimes against humanity, war crimes, aggression and offences against the administration of justice. This matter has been addressed under the heading ‘Crimes prosecuted by the Court’.
Temporal (ratione temporis) jurisdiction
The Court is a prospective institution in that it cannot exercise jurisdiction over crimes committed prior to the entry into force of the Statute. In the case of States that become parties to the Statute subsequent to its entry into force, the Court has jurisdiction over crimes committed after the entry into force of the Statute with respect to that State. For example, Colombia ratified the Statute in August 2002, several weeks after its entry into force on 1 July 2002. The Statute only entered into force for Colombia on 1 November 2002, in accordance with Article 126, and the Court cannot therefore prosecute any cases that are based on the Colombian ratification for the period between 1 July and 1 November 2002, unless it can establish its jurisdiction on some other basis. The Statute seems to return to this issue in Article 24, which declares that no person shall be criminally responsible for conduct prior to the entry into force of the Statute. Articles 24 and 11 are in fact quite closely related and at one point during drafting the chair of the Working Group on General Principles proposed that they be merged. There is an exception to the general rule concerning temporal application of the Statute, because it is possible for a State to make an ad hoc declaration recognizing the Court’s jurisdiction over specific crimes, even if the State is not a party to the Statute. But, even in such a case, the Court would obviously be without jurisdiction to prosecute a crime committed prior to the entry into force of the Statute. Similarly, the Security Council could not refer a case to the Court, pursuant to Article 13(b), with respect to crimes committed prior to 1 July 2002. The Statute has been criticized for its inability to reach into the past and prosecute atrocities committed prior to its coming into force. The answer to this objection is entirely pragmatic. Few States – even those who were the Court’s most fervent advocates – would have been prepared to recognize a court with such an ambit. The idea was unmarketable and was never seriously entertained during the drafting. But the failure to prosecute retroactively does not wipe the slate clean and grant a form of impunity to previous offenders. Those responsible for atrocities committed prior to entry into force of the Rome Statute may and should be punished by national courts. Where the State of nationality or the territorial State refuse to act, an increasing number of States now provide for universal jurisdiction over such offences. Other options include the establishment by treaty of an international court, like the Special Court for Sierra Leone, whose legal basis is an agreement between the Government of Sierra Leone and the United Nations, the latter acting pursuant to a Security Council resolution. The issue of jurisdiction ratione temporis should not be confused with the question of retroactive crimes. International human rights law considers the prohibition of retroactive crimes and punishments to be one of its most fundamental principles. Known by the Latin expression nullum crimen nulla poena sine lege, this normforbids prosecution of crimes that were not recognized as such at the time they were committed. There are, of course, varying interpretations as to the scope of the principle. The Nuremberg Tribunal could point to existing legal texts, such as the Hague Convention IV of 1907, in the case of war crimes, and the Kellogg–Briand Pact, in the case of crimes against peace. But, while these described certain acts as being contrary to international law, they did not define them as generating individual criminal liability. Inspired by the writings of Hans Kelsen, the Nuremberg Tribunal answered the charge only indirectly, noting that nullum crimen was a principle of justice, and that it would be unjust to let the Nazi leaders go unpunished. Since then, similar pronouncements can be found in the Eichmann case of 1961 and even recently in the Erdemovic judgment of the International Criminal Tribunal for the Former Yugoslavia. In any event, nullum crimen is set out in Articles 22 and 23. Specifically, Article 22(1) declares: ‘A person shall not be criminally responsible under this Statute unless the conduct in question constitutes, at the time it takes place, a crime within the jurisdiction of the Court.’ Why Article 22(1) is necessary may initially seem puzzling, given the general jurisdictional prohibition on crimes committed prior to the entry into force of the Statute. After all, this is not a court like those at Nuremberg or Tokyo, or the ad hoc tribunals established for Yugoslavia and Rwanda, all of them established with a view to judging crimes already committed. But where a State has made an ad hoc declaration recognizing the jurisdiction of the Court, with respect to a crime committed in the past, a defendant might argue that one or another of the provisions of Articles 6, 7 and 8 are not recognised as norms of customary international law and are therefore not punishable by the Court. Likewise, this question may be raised where the Security Council gives jurisdiction to the Court, just as it has been raised by defendants in The Hague and Arusha. But the argument, though not totally frivolous, has never really succeeded before international courts in the past and is unlikely to cut much ice with the Court in the future. The standard adopted by the European Court of Human Rights with respect to retroactive crimes is that they must be foreseeable by an offender. Inevitably, the Prosecutor will adopt this reasoning, and argue that, from the moment the Statute was adopted, or at the very least from the moment it entered into force, individuals have received sufficient warning that they risk being prosecuted for such offences, and that the Statute itself (in Article 12(3)) contemplates such prosecution even with respect to States that are not yet parties to the Statute. The question of ‘continuous crimes’ arose during the Rome Conference.
This might present itself, for example, in the case of an ‘enforced disappearance’, which is a crime against humanity punishable under Article 7. Someone might have disappeared prior to entry into force of the Statute but the crime would continue after entry into force to the extent that the disappearance persisted. It might also be argued that this is the case where a population had been forcibly transferred or deported, and was being prohibited from returning home. Transfers and deportations fall within the scope of all three categories of crimes punishable under the Statute. Verbs such as ‘committed’, ‘occurred’, ‘commenced’ or ‘completed’, in Article 24,were ways in which the problem might have been addressed, but this proved difficult to cope with in all six working languages in an appropriate manner. Eventually the ‘irresolvable matter’ was resolved by the chair of the Working Group on General Principles, who proposed simply avoiding the troublesome verb in the English version. Thus, the issue of ‘continuous crimes’ remains undecided and it will be for the Court to determine how it should be handled. The Drafting Committee appended an intriguing footnote to paragraph 1 of Article 24, reading: ‘The question has been raised as regards a conduct which started before the entry into force and continues after the entry into force.’ It was an extremely unusual step for the Drafting Committee to insert a footnote. This may well have been a late-night compromise aimed at appeasing a handful of delegates who were obsessed with the question of continuous offences.
Bases of jurisdiction
States exercise jurisdiction in the field of criminal law on five bases: territory, protection, nationality of offender (active personality), nationality of victim (passive personality), and universality. Territory is the most common, if for no other reason than that it is the only form of jurisdiction where the State can be reasonably sure of actually executing the process of its courts. In the Lotus case, Judge Moore of the Permanent Court of International Justice indicated a presumption favoring the forum delicti commissi. One of the earliest criminal law treaties, the Treaty of International Penal Law, signed at Montevideo on 23 January 1889, stated that: ‘Crimes are tried by the Courts and punished by the laws of the nation on whose territory they are perpetrated, whatever may be the nationality of the actor, or of the injured.’ Sometimes territory may be given a rather broad scope, so as to encompass acts which take place outside the State’s territory but which have a direct effect upon it. Jurisdiction based on nationality of the victim or the offender, as well as on the right of a State to protect its interests, is somewhat rarer. The Permanent Court of International Justice, in the Lotus case, left unresolved the issue of the right of States to exercise jurisdiction based on the nationality of the victim (passive personality jurisdiction) rather than that of the offender (active personality jurisdiction), which is well established.
Universal jurisdiction – quasi delicta juris gentium – applies to a limited number of crimes for which any State, even absent a personal or territorial link with the offence, is entitled to try the offender. In customary international law, these crimes are piracy, the slave trade, and traffic in children and women. Recognition of universal jurisdiction for these crimes was largely predicated on the grounds that they were often committed in terra nullius, where no State could exercise territorial jurisdiction. More recently, some multilateral treaties have also recognized universal jurisdiction for particular offences such as hijacking and other threats to air travel, piracy, attacks upon diplomats, nuclear safety, terrorism, apartheid and torture.
The application of universal jurisdiction is also widely recognized for genocide, crimes against humanity and war crimes, that is, for the core crimes of the Rome Statute, although a recent decision of the International Court of Justice provoked a variety of individual opinions on the subject, leaving the matter not only unresolved but also still in some doubt.
During the drafting of the Statute, some argued that what States could do individually in their own national justice systems they could also do collectively in an international body. Consequently, if they have the right to exercise universal jurisdiction over the core crimes of genocide, crimes against humanity and war crimes, they ought also to be able to create an international court that can do the same. If the Statute were to provide for universal jurisdiction in such a way, it was asserted, then the new international court would have the authority to try anybody found on the territory of a State party, even if the crime had been committed elsewhere and if the accused was not a national of the State party. But such an approach met with two objections. First, some States felt the solution too ambitious and likely to discourage ratifications. It is true that, in practice, universal jurisdiction is rarely exercised by States, and many would probably prefer not to be pushed into matters that in the past, for diplomatic or other reasons, they have sought to avoid. Secondly, a few States quarreled with the legality of an international court that could exercise universal jurisdiction.
Territorial (ratione loci) jurisdiction
The Court has jurisdiction over crimes committed on the territory of States parties, regardless of the nationality of the offender. This general principle is set out in Article 12(2)(a) of the Statute. It also has jurisdiction over crimes committed on the territory of States that accept its jurisdiction on an ad hoc basis and on territory so designated by the Security Council. The 1948 Genocide Convention provides some precedent for the idea that an international criminal court will have jurisdiction over crimes committed on the territory of a State party. Article VI of the Convention envisages just such an eventuality. Territory, for the purposes of criminal law jurisdiction, is a term that needs to be defined. Obviously, it will extend to the land territory of the State. The Statute also considers the concept of territory to include crimes committed on board vessels or aircraft registered in the State party. This is a rather common and widely accepted extension of the concept of territorial jurisdiction. Logically, territorial jurisdiction should extend to the air above the State, and to its territorial waters and, possibly, its exclusive economic zone. But the actual scope of these grey areas remains to be determined. There are really no useful precedents from the case law of previous international criminal tribunals. Solutions to these issues will be sought in the practice of national justice systems, although this varies considerably and it is difficult to establish any common rules that are generally accepted. Whatever the result, some territories are necessarily beyond the reach of the Court: the high seas, Antarctica and outer space. If atrocities are committed in these places, jurisdiction will have to be established on the basis of the nationality of the offender.
Many national jurisdictions extend the concept of territorial jurisdiction to include crimes that create effects upon the territory of a State. For example, it could be argued that, in the case of a conspiracy to commit genocide, the Court might have jurisdiction even if the conspirators actually hatched their plan outside the territory where the crime was to take place. Similarly, an order to take no prisoners, which is a crime in and of itself even if nobody acts upon the order, could be committed outside the territory of a State but might be deemed to fall within the jurisdiction of the Court if its effects were felt on the territory. The case becomes somewhat clearer in cases of incitement and abetting. Nevertheless, given the silence of the Statute about effects jurisdiction, there are compelling arguments in favor of a strict construction of Article 12 and the exclusion of such a concept.
Debates about the scope of territory are likely to lead to disputes, and it is not improbable that the judges of the International Criminal Court will find themselves determining where international borders are placed, and who has title to specific territory. It is said that somewhat more than 50 per cent of international boundaries are disputed. Obviously, the places where these disputes are most acute are also likely to be the trouble spots on which the Court’s attention will focus. An example from the Middle East should suffice. Suppose that the leaders of the Palestinian Authority declare independence and, at the same time, accede to the Rome Statute. The Court would have jurisdiction over the ‘territory’ of an independent Palestine, of which most if not all of the actual boundaries would be contested. Similar issues could arise in the opposite direction if Israel were to make a declaration under Article 12(3) of the Statute, thereby accepting the jurisdiction of the Court with respect to a specific crime committed on its territory.
At the time of ratification a few States have made declarations concerning the territorial scope of the Rome Statute. In contrast with many other multilateral international instruments, there is no specific provision for this in the Statute. The Netherlands has made a harmless but reassuring statement to the effect that the Statute applies not only to its European territory but also to the Netherlands Antilles and Aruba. More troublesome is Denmark’s declaration that it does not intend the Statute to apply to the Faroe Islands and Greenland.49 While this was no doubt motivated by admirable sentiments of respect for local autonomy, it has the effect of excluding the reach of the Court from a territory which, on its own, has no right to correct the situation, because neither the Faroe Islands nor Greenland are sovereign States and as a result they cannot accede to the Statute. Were a case to arise, the Court might well take the lead from analogous cases before the European Court of Human Rights and rule the Danish declaration to be an illegal reservation without any effect, in accordance with Article 120 of the Statute, thereby recognizing jurisdiction over the disputed territories.
Personal (ratione personae) jurisdiction
The International Criminal Court will also have jurisdiction over nationals of a State party who are accused of a crime, in accordance with Article 12(2)(b). Again, the Court can also prosecute nationals of non-party States that accept its jurisdiction on an ad hoc basis by virtue of a declaration,51 or pursuant to a decision of the Security Council. Creating jurisdiction based on the nationality of the offender is the least controversial form of jurisdiction and was the absolute minimum proposed by some States at the Rome Conference. Cases may arise where the concept of nationality has to be considered by the Court. In accordance with general principles of public international law, the Court should look at whether a person’s links with a given State are genuine and substantial, rather than it being governed by some formal and perhaps even fraudulent grant of citizenship. Echoing provisions found in the Nuremberg Charter and the 1948 Genocide Convention, the Statute declares that rules in either national or international law that create immunities or otherwise shelter individuals from criminal prosecution are of no effect before the Court. Traditionally, immunities have taken two main forms: first, some States, through their constitutions or ordinary legislation, provide that their own heads of State and in some cases other government officials or elected representatives are immune from prosecution; secondly, under both customary international law and international treaties, incumbent heads of State, foreign ministers and diplomats cannot be prosecuted by the courts of other States. Some States have had to consider constitutional amendments in order to eliminate such special regimes and thereby make their legislation consistent with the Statute. In its 2002 ruling in the Arrest Warrant case, the International Court of Justice recognized that an incumbent or former minister of foreign affairs would not have immunity before an international tribunal like the International Criminal Court, where it has jurisdiction. However, the Court did not consider that Article 27 of the Statute provided it with a basis for concluding that incumbent heads of State and similar officials, such as foreign ministers, were not protected by traditional immunities, as a matter of customary international law.
There is an important practical exception, however, that can serve to shield certain classes of persons from prosecution. The Court is prohibited, pursuant to Article 98(1), from proceeding with a request for surrender or assistance if this would require a requested State to act inconsistently with its obligations under international law as concerns a third State, unless the latter consents. Diplomatic immunity falls into such a category. This means that, while a State party to the Statute cannot shelter its own head of State or foreign minister from prosecution by the International Criminal Court, the Court cannot request the State to cooperate in surrender or otherwise with respect to a third State. Nothing prevents the State party from doing this if it so wishes, and once the head of State was taken into the actual custody of the Court, he or she would be treated like any other defendant. Similarly, the Court is also prohibited from proceeding in a request for surrender that would require a State party to act inconsistently with certain international agreements reached with a third State. The provision – Article 98(2) – was intended to ensure that a rather common class of treaties known as ‘status of forces agreements’ (or SOFAs) would not be undermined or neutralized by the Statute. SOFAs are used to ensure that peacekeeping forces or troops based in a foreign country are not subject to the jurisdiction of that country’s courts. Some ingenious lawyers in the United States Department of State have attempted to pervert Article 98(2), drafting treaties that shelter all American nationals from the Court. Several States parties have succumbed to Washington’s pressure and agreed to such arrangements. The Rome Statute also declares that the Court has no jurisdiction over a person under the age of eighteen at the time of the infraction. The solution is disarmingly simple, but much energy was expended on the issue in tedious debates during the sessions of the Preparatory Committee and the Diplomatic Conference. The Working Group on General Principles agreed to impose a ‘jurisdictional solution’ and to provide that the Court would simply be unable to prosecute persons who were under eighteen at the time of the commission of the crime.
Security Council veto of prosecution
The Court may be prevented from exercising its jurisdiction when so directed by the Security Council, according to Article 16. This is called ‘deferral’. It seems that the measure can be permanent. The Statute says that the Security Council may adopt a resolution under Chapter VII of the Charter of the United Nations requesting the Court to suspend prosecution, and that in such a case the Court may not proceed. This highly controversial provision is, however, a rather significant improvement upon a text in the original draft statute prepared by the International Law Commission. In that document, the Court was prohibited from prosecuting a case ‘being dealt with by the Security Council as a threat to or breach of the peace or an act of aggression under Chapter VII of the Charter, unless the Security Council otherwise decides’. Such a provision would have allowed a single State that was a member of the Council to obstruct prosecution by placing a matter on the agenda, something that could only be overridden by a decision of the Council itself. And a decision of the Council itself can be blocked at any time by one of the five permanent members – the United States, the United Kingdom, China, France and the Russian Federation – exercising its veto.
The International Law Commission proposal met with sharp criticism as interference in the independence and impartiality of the future court. By allowing political considerations to influence prosecution, many felt that the entire process could be discredited. At the same time, it must be recognized that there may be times when difficult decisions must be taken about the wisdom of criminal prosecution when sensitive political negotiations are underway. Should the Court be in a position to trump the Security Council and possibly sabotage measures aimed at promoting international peace and security?
The debate in the Preparatory Committee and the Rome Conference itself about the International Law Commission proposal was in many respects a confrontation between the five permanent members and all other countries.
The uninformed observer might have been given the impression that United Nations reform was being accomplished indirectly, in the creation of a new institution – the International Criminal Court – which would be involved in many of the same issues as the Security Council but where there would be no veto. A compromise, inspired by a draft submitted by Singapore, was ultimately worked out, allowing for the Council to suspend prosecution but only by positive resolution, subject to annual renewal. But even the compromise was bitterly opposed by some delegates who saw it as a blemish on the independence and impartiality of the Court. In a statement issued on the night of the final vote in Rome, India said it was hard to understand or accept any power of the Security Council to block prosecution: On the one hand, it is argued that the ICC is being set up to try crimes of the gravest magnitude. On the other, it is argued that the maintenance of international peace and security might require that those who have committed these crimes should be permitted to escape justice, if the Council so decrees. The moment this argument is conceded, the Conference accepts the proposition that justice could undermine international peace and security.
Nobody at Rome expected Article 16 to be invoked by the Security Council even before the Court was actually operational, but that is precisely what happened in July 2002, barely days after the entry into force of the Statute. In late June, the United States announced that it would exercise its Security Council veto over all future peacekeeping missions unless the Council were to invoke Article 16 so as to shield United Nations authorized missions from prosecution by the Court. The result was Resolution 1422, adopted by the Security Council on 12 July 2002, allegedly pursuant to Article 16 of the Statute. It ‘requests’ that ‘if a case arises involving current or former officials or personnel from a contributing State not a Party to the Rome Statute over acts or omissions relating to a United Nations established or authorized operation [The Court] shall for a twelve-month period starting 1 July 2002 not commence or proceed with investigation or prosecution of any such case, unless the Security Council decides otherwise’. It therefore extends deferral to such operations as the Stabilization Force (SFOR) in Bosnia and Herzegovina, whose role is authorized by a Security Council resolution although it is not at all under United Nations control. The resolution only applies to nationals of States that are not parties to the Statute. Although adopted without opposition in the Council, the initiative was resoundingly condemned by several States during the debate, including such normally steadfast friends of the United States as Germany and Canada. Its legality is highly questionable, of course, because Article 16 contemplates a specific situation or investigation rather than some blanket exclusion of a category of persons. Moreover Article 16 of the Statute says that the Council must be acting pursuant to Chapter VII of the Charter of the United Nations, applicable only when there is a threat to the peace, a breach of the peace or an act of aggression. Some United Nations-authorized missions are not even created pursuant to Chapter VII of the Charter.
Conceivably, the Court could assess whether or not the Council was validly acting pursuant to Chapter VII. There has been much debate among international lawyers about whether or not Security Council resolutions can even have their legality reviewed by courts. The International Court of Justice has been hesitant to do this, because the ICJ and the Council are both principal organs of the United Nations, and the ICJ has felt that the Charter does not establish a hierarchy in which one principal organ of the United Nations can review the decision of the other. This consideration does not apply to the International Criminal Court, which is not created by the Charter of the United Nations and, for that matter, is not an organ of the United Nations at all. The International Criminal Tribunal for the Former Yugoslavia considered that it was entitled to review the legality of Resolution 827, which is in effect its constitutive act. In other words, Resolution 1422 was an abuse of the powers of the Security Council whose legality, at least theoretically, could eventually be challenged in proceedings before the International Criminal Court.
However, this is probably unlikely to happen, and not so much because of judicial deference towards the Council as because proceedings against peacekeepers are unlikely to be at the top of the Prosecutor’s agenda. Peacekeepers have sometimes been alleged to have participated in crimes that fall within the jurisdiction of the Court, but these matters have been dealt with in the past by their own national courts, and there is no reason to expect this to become a problem in the future. Above all, Resolution 1422 is an ugly example of bullying by the United States, and a considerable stain on the credibility of the Security Council. In practice, it will probably not prove to be a serious obstacle to the fulfillment of the Court’s solemn mission
Admissibility
Under the rubric of ‘admissibility’, in Article 17, the Statute addresses the complex relationship between national legal systems and the International Criminal Court. The Court is required to rule a case inadmissible when it is being appropriately dealt with by a national justice system. The key word here is ‘complementarily’, a term that does not in fact appear anywhere in the Statute. However, paragraph 10 of the preamble says that ‘the International Criminal Court established under this Statute shall be complementary to national criminal jurisdictions’, and Article 1 reiterates this.
Article 17(1) makes an explicit reference to paragraph 10 of the preamble and to Article 1. The term ‘complementarily’ may be somewhat of a misnomer, because what is established is a relationship between international justice and national justice that is far from ‘complementary’. Rather, the two systems function in opposition and to some extent with hostility with respect to each other. The concept is very much the contrary of the scheme established for the ad hoc tribunals, referred to as ‘primacy’, whereby the ad hoc tribunals can assume jurisdiction as of right, without having to demonstrate the failure or inadequacy of the domestic system.
Several aspects of ‘complementarity’ are addressed in specific provisions. Article 17(1) states that a case is inadmissible when it is being investigated or prosecuted by a State that has jurisdiction over it, or when the case has already been investigated and the State has decided not to prosecute.
In such circumstances, the Court may only proceed where the State ‘is unwilling or unable genuinely’ to investigate or prosecute the case. The terms ‘unwilling’ and ‘unable’ are explained in some detail in Article 17, although the enigmatic adjective ‘genuinely’ is left entirely to the appreciation of the Court.
The issue of unwillingness will arise where a national justice system is ‘going through the motions’ in order to make it look as if investigation and prosecution are underway although it may lack the resolve to see them through, or may even be indulging in a sham trial held so that in any subsequent proceedings an accused can argue that he or she had already been tried and convicted and that any new trial is blocked by application of the rule against double jeopardy. The Statute requires the Court to consider these issues ‘having regard to the principles of due process recognized by international law’, suggesting an assessment of the quality of justice from the standpoint of procedural and perhaps even substantive fairness. The issue of inability will arise when a State cannot obtain the accused or necessary evidence and testimony or is otherwise unable to carry out its proceedings.
The Statute makes this conditional on ‘a total or substantial collapse or unavailability of its national judicial system’ (an early draft used the word ‘partial’ in place of ‘substantial’, a less demanding standard). Thus, a developed and functional justice system that is unable to obtain custody of an offender because of a lack of extradition treaties, for example, would still be able to resist prosecution by the Court on the ground of complementarily.
The concept of complementarily emerged as early as the International Law Commission draft in 1994. But, in the debates that followed, the proposed complementarily mechanism was harshly criticized by such experienced international criminal law personalities as the Prosecutor of the ad hoc tribunals. Louise Arbour argued essentially that the regime would work in favor of rich, developed countries and against poor countries. Although the Court’s Prosecutor might easily make the claim that a justice system in an underdeveloped country was ineffective and therefore ‘unable’ to proceed, essentially for reasons of poverty, the difficulties involved in challenging a
State with a sophisticated and functional justice system would be virtually insurmountable. Certainly, there is a danger that the provisions of Article 17 will become a tool for overly harsh assessments of the judicial machinery in developing countries.
During the drafting of the Statute, there was also great debate about the attitude that the Court should take to alternative methods of accountability. The South Africans were the most insistent on this point, concerned that approaches like their Truth and Reconciliation Commission, which offer amnesty in return for truthful confession, would be dismissed as evidence of a State’s unwillingness to prosecute. While there was widespread sympathy with the South African model, many delegations recalled the disgraceful amnesties accorded by South American dictators to themselves, the most poignant being that of former Chilean president Augusto Pinochet. But drafting a provision that would legitimize the South African experiment yet condemn the Chilean one proved elusive. It has been suggested that genuine but non-judicial efforts at accountability that fall short of criminal prosecution would have the practical effect of convincing the Prosecutor to set priorities elsewhere.
Judges of the Court might well consider that a sincere truth commission project amounts to a form of investigation that does not suggest ‘genuine unwillingness’ on the part of the State to administer justice, thereby meeting the terms of Article 17(1) (a) and (b). Should that not be enough, the Statute also declares inadmissible a case that is not ‘of sufficient gravity to justify further action by the Court’. Moreover, the Prosecutor is invited to consider, in determining whether or not to investigate a case, whether ‘taking into account the gravity of the crime and the interests of victims, there are nonetheless substantial reasons to believe that an investigation would not serve the interests of justice’. Yet judicial attitudes are impossible to predict, and judges or prosecutors might well decide that it is precisely in cases like the South African one where a line must be drawn establishing that amnesty for such crimes is unacceptable.
When a case has already been tried by a domestic justice system, the complementarily article in the Statute points to another provision, the prohibition of double jeopardy or ne bis in idem, set out in Article 20 and codified in important human rights treaties such as the International Covenant on Civil and Political Rights. The test as to whether the national trial proceedings were legitimate is slightly different from the ‘unable or unwilling genuinely’ standard of Article 17, which applies with respect to pending or completed investigations and pending prosecutions. If a domestic trial has already been completed, the judgment is a bar to prosecution by the Court except in the case of sham proceedings. These are defined as trials held to shield an offender from criminal responsibility, or that were otherwise not conducted independently or impartially and were held in a manner which ‘in the circumstances, was inconsistent with an intent to bring the person concerned to justice’.
In a case where an individual is properly tried, but is then subsequently pardoned, the Court would seem to be permanently barred from intervening. The case is far from hypothetical. In the early 1970s, William Calley was convicted of war crimes for an atrocious massacre in My Lai village in Vietnam. Justice had done its job and he was duly sentenced to a term of life imprisonment. Then the United States President, Richard Nixon, intervened and granted him a pardon after only a brief term of detention had been served.
There is some doubt about the application of complementarity and the ne bis in idem rule to situations where an individual has already been tried by a national justice system, but for a crime under ordinary criminal law such as murder, rather than for the truly international offences of genocide, crimes against humanity and war crimes. It will be argued that trial for an underlying offence tends to trivialise the crime and contribute to revisionism or negationism. Many who violate human rights may be willing to accept the fact that they have committed murder or assault, but will refuse to admit the more grievous crimes of genocide or crimes against humanity. Yet murder is a very serious crime in all justice systems and is generally sanctioned by the most severe penalties. Article 20(3) seems to suggest this, when it declares that such subsequent proceedings before the International Criminal Court when there has already been a trial ‘for conduct also proscribed under Articles 6, 7 and 8’ is prohibited. In the alternative, the Statute ought to have said ‘for a crime referred to in Article 5’, as it does in Article 20(2).
The Statute also prohibits domestic justice systems from trying an individual for one of the crimes listed in the Statute if that person has already been convicted or acquitted by the Court. This rule is somewhat narrower, in that it only excludes prosecution before national courts for genocide, crimes against humanity and war crimes. Accordingly, someone acquitted of genocide by the International Criminal Court, for lack of evidence of intent, could subsequently be tried by national courts for the crime of murder without violating the Statute. This rule in the Statute goes somewhat further than the prohibition of double jeopardy in international human rights law, because international courts and tribunals have generally considered that the norm only applies within the same jurisdiction, and does not prevent a subsequent trial in another jurisdiction.
What about the relationship between the International Criminal Court and the activities of other international criminal tribunals? When the Rome Statute entered into force, there were two such institutions whose jurisdiction might be competitive with that of the ICC, namely the International Criminal Tribunal for the Former Yugoslavia and the Special Court for Sierra Leone. Both of these bodies are creatures of international law, the former established by a Security Council resolution, the latter by an agreement between the United Nations and the Government of Sierra Leone, and both have jurisdiction over crimes committed on territories that are also subject to prosecution by the International Criminal Court. Moreover, in both territories there was an ongoing situation of political instability making further outbreaks of conflict not at all impossible. The Rome Statute, whose admissibility provisions are focused on national legal systems, does not address this matter directly. A solution recognising the authority of the first to obtain physical custody of the accused is only part of the answer, because situations of competing requests to a State party for transfer to one or the other body cannot be excluded.
Investigation and pre-trial procedure
Many of the States involved in drafting the Rome Statute initially treated debates about the procedural regime to be followed by the Court as an opportunity to affirm the merits of their own justice systems within an international forum. Often, they were simply unable, because of training or prejudice, to conceive of the possibility that other judicial models from different cultures could offer alternative and perhaps better solutions to procedural issues. Describing debates in the International Law Commission, James Crawford noted ‘the tendency of each duly socialized lawyer to prefer his own criminal justice system’s values and institutions’. But, over time, the drafters came to appreciate that there was much to be learned from different legal systems. Of course, they also recognised that compromise was essential if agreement was to be reached. As one observer of the Rome Conference said so eloquently: ‘the fight between common law and civil law has been replaced by an agreement on common principles and civil behaviour.’ In this regard, the ongoing work of the ad hoc international criminal tribunals was of great value. Since their establishment in 1993 and 1994, the tribunals in The Hague and Arusha have been engaged in a fascinating exercise in comparative criminal procedure, borrowing the best from different national legal systems and in some cases simply devising innovative and original rules. The procedural regime of the International Criminal Court is largely a hybrid of two different systems: the adversarial approach of the English common law and the inquisitorial approach of the Napoleonic code and other European legislations of the Romano-Germanic tradition (often described as the ‘civil law’ system). This is perhaps an oversimplification, because, within the English and continental models, there is enormous variation from one country to another. Particularly in Europe, States have recently begun rethinking their approach to criminal procedure, largely in reaction to judgments of the European Court of Human Rights.
Under the adversarial procedure, which is the general rule in common law countries, the authorities responsible for prosecution prepare a criminal charge inspired either by a private complaint or on their own initiative. Although generally bound to respect standards of fairness and the presumption of innocence, their efforts focus on building a case against the accused. When the trial begins, there is no evidence before the judge. Evidence is admitted in accordance with specific and often quite restrictive rules, and its admission may be contested by the defence. Many of these strict rules exist because questions of fact will be decided by lay jurors who lack the training and instincts of professional judges in the assessment of the probity of different types of evidence. For example, the lay juror may have difficulty determining the value of indirect or ‘hearsay’ evidence, whereas the professional judge knows that it is often quite unreliable. At trial, the prosecution will attempt to lead incriminating evidence, and will simply ignore exculpatory evidence, as this is counterproductive to its own case. Under certain national systems, the prosecution must provide the defence with any favourable evidence that is in its possession, but the obligation rarely goes any further.When the prosecution’s case is complete, if the evidence is insufficient to establish guilt, the defence may move to dismiss the charges. Where the evidence appears sufficient, the defencemay then decide to reply with its own evidence, whose admissibility is subject to the same rules as for the prosecution.
Under the inquisitorial system, instructing magistrates prepare the case by collecting evidence and interviewing witnesses, often unbeknownst to the accused. The instructing magistrate is a judicial official, who is bound to complete the job with neutrality and impartiality, and who must collect evidence of both guilt and innocence. The evidence compiled, including witness statements, is then filed in court prior to the start of the trial itself. Usually, the trial becomes more adversarial at this point, because the prosecution and the defence each participate in the judicial debates. The trial judges may then assess the evidence in the case file, or, at the request of one or other of the parties or on their own initiative, require that additional evidence be presented. Rules of evidence are not nearly as technical under the inquisitorial as under the adversarial system, mainly because the evidence is being assessed exclusively by professional judges rather than, in the case of the common law system, by lay jurors.
Trials under the inquisitorial system are generally much shorter than their common law counterparts because most of the evidence has already been produced in the court record before the trial begins.Common law trials tend to be much longer and probably more thorough, although there are fewer of them. Because common law proceedings are so complex, only a minority of cases actually get to trial. Most are resolved by agreement between prosecutor and defence counsel, who can usually reach a reasonable compromise as to the likely outcome of a trial based on their own experience with similar cases. The accused pleads guilty to a charge that is agreed to by both lawyers, and after a summary verification the plea is simply endorsed by a trial judge who imposes a sentence, again usually following a recommendation from both counsel. The inquisitorial system does not allow for such ‘plea bargaining’, and a conviction is impossible until the instructing magistrate has prepared evidence that satisfies the trial judges of guilt. Drawing on both systems, the Rome Statute provides for an adversarial approach, but one where the Court has dramatic powers to intervene and control the procedure. Although the inquisitorial system is often criticized by lawyers of the common law for its inadequate protection of the rights of the defense, in an international context, where the defense may have insurmountable obstacles to obtaining evidence and interviewing witnesses within uncooperative States, the inquisitorial system may ultimately prove the better approach. Accordingly, the International Criminal Court has wide authority under the Statute to supervise matters at the investigation stage. Both the Prosecutor and the Pre-Trial Chamber are particularly important in this respect, and they have special responsibilities in terms of identifying and securing exculpatory evidence to assist in preparation of the defense.
Trial and appeal
Although much of the procedure of the Court is a hybrid of different judicial systems, it seems clear that there is a definite tilt towards the common law approach of an adversarial trial hearing. However, the exact coloring that the Court may take will ultimately be determined by its judges. The terms of the Statute are large enough to provide for considerable divergence in judicial approaches. For example, Article 64(6)(d) entitles the Trial Chamber to ‘[o]rder the production of evidence in addition to that already collected prior to the trial or presented during the trial by the parties’. A traditional common law judge would view this as a power to be exercised only rarely, because an aggressively interventionist approach might distort the balance between the two adversaries at trial. A judge favoring the continental system could interpret the provision as a license for major judicial involvement in the production of evidence, something that would seem most normal under his or her system. Judges in the continental system expect most of the evidence to form part of the court record even prior to trial. The evidence already on the record will have been prepared beforehand by the investigating magistrate as part of the pre-trial proceedings. Common law judges, on the other hand, consider that they begin the trial as a blank sheet; indeed they believe that any prior knowledge of the facts is likely to prejudice their judgment. Under the common law system, prosecutor and defence submit the evidence that makes up the record in accordance with strict technical rules. Here too, the Statute leaves considerable ambiguity on this point. Nothing, for example, would seem to prevent a judge from ordering the production of the Prosecutor’s record as evidence at the outset of the trial, in much the same way as an investigating magistrate’s file would be used by the trial court. The International Criminal Tribunal for Rwanda, under the presidency of a judge trained in the Romano-Germanic system, took this approach in the Akayesu case, requiring that the prosecutor’s file be submitted as part of the record.
The trial is to take place at the seat of the Court, in The Hague, unless otherwise decided.1 The trial shall be held in public, something that is expressed both as a duty of the Trial Chamber and as a right of the accused. Nevertheless, the Trial Chamber may depart from the general principle of a public hearing. A detailed enumeration of exceptions to the public hearing principle had been proposed but was rejected by the Preparatory Committee. Article 64(7) explicitly allows in camera proceedings for the protection of victims and witnesses, or to protect confidential or sensitive information to be given in evidence. Furthermore, Article 68(2) provides: As an exception to the principle of public hearings provided for in article 67, the Chambers of the Court may, to protect victims and witnesses accused, conduct any part of the proceedings in camera or allow the presentation of evidence by electronic or other special means. In particular, such measures shall be implemented in the case of a victim of sexual violence or a child who is a victim or a witness, unless otherwise ordered by the Court, having regard to all the circumstances, particularly the views of the victim or witness. The already elaborate case law of the ad hoc tribunals in this matter should guide the Court in this difficult area.2 Confidential or sensitive information may have several sources. There may be claims to confidentiality based on privilege, and the Court is to respect this pursuant to Article 69(5), as provided for in the Rules of Procedure and Evidence. But the major source of problems with this exception will be information derived from sovereign States. The Statute allows a State to apply ‘for necessary measures’ to respect ‘confidential or sensitive information’.
The accused must be present at trial, even those parts of it that are held in camera.5 During the drafting of the Statute, there was considerable debate about whether or not to permit in absentia trials,6 which are widely held under the continental procedural model. It was argued that in absentia trials were particularly important in the context of international justice because of the didactic effect as well as the extreme practical difficulties involved in compelling attendance at trial.7 The accused’s right to be present at trial is recognized in the principal international human rights instruments,8 but international tribunals and monitoring bodies have not viewed presence at trial as indispensable. The practice of domestic justice systems that derive from the Romano-Germanic models, where in absentia proceedings are well accepted, is considered compatible with the right to presence at trial, as long as the accused has been duly served with appropriate notice of the hearing.
During the drafting of the Rome Statute, the issue was often presented, erroneously, as one of principled difference with the common law system, which does not allow for in absentia trials as a general rule. But the fact that common law jurisdictions make a number of exceptions, and allow for such proceedings where appropriate, shows that this is not an issue of fundamental values so much as one of different practice. At Nuremberg, one of the major war criminals, Martin Bormann, was tried in his absence, pursuant to Article 12 of the Charter of the InternationalMilitaryTribunal.10 Because of the devotion of negotiators to their own domestic models, it proved impossible to reach consensus on this question. As one observer has noted, ‘[n]o compromise could be found and the time constraint ruled in favor of a straightforward solution – trials in absentia are not provided for under any circumstances in the Statute’.
Presence at trial should imply more than mere physical presence. The accused should be in a position to understand the proceedings, and this may require interpretation in cases where the two official languages of the Court are not available to the accused.12 The Statute is silent with respect to cases of an accused who is unfit to stand trial because of mental disorder, although this lacuna is corrected in the Rules, which direct the Trial Chamber to adjourn the proceedings when it ‘is satisfied that the accused is unfit to stand trial’.13 The problem of fitness to stand trial should not be confused with the defense of insanity, allowed by Article 31(1)(a) of the Statute, where the issue is the accused’s mental condition at the time of the crime. An accused who is unfit to stand trial is not ‘present’ within the meaning of Article 63 and therefore the hearing cannot proceed. In many national justice systems, an accused may be held in detention pending a change in his or her condition permitting the court to determine fitness. The suggestion in the International Law Commission draft statute that the Court be permitted to continue proceedings in the case of ‘ill health’ of an accused, a provision that might possibly have allowed the Court to address such situations, was rejected by the Diplomatic Conference. The situation of an accused who is unfit to stand trial is far from an idle hypothesis. In the Erdemovic case, the ICTY remanded the accused for psychiatric examination so as to determine whether the plea of guilty had been made by a man who was ‘present’ in all senses of the word. A panel of experts concluded that he was suffering from post-traumatic stress disorder and that his mental condition at the time did not permit his trial before the Trial Chamber.14 The Trial Chamber postponed the pre-sentencing hearing and ordered a second evaluation of the appellant to be submitted in three months’ time.15 A subsequent report concluded that Erdemovic’s condition had improved such that he was ‘sufficiently able to stand trial’.16 At Nuremberg, the International Military Tribunal rejected suggestions that defendants Rudolf Hess and Julius Streicher were not fit to stand trial.1
The trial may proceed in the absence of the accused where he or she disrupts the proceedings. The Statute indicates that the accused must ‘continue’ to disrupt the trial, indicating that the trouble must be repetitive and persistent.18 It is, of course, difficult to codify in any detail how judges are to administer such a power. The problem is a familiar one in domestic justice systems, and the Court will surely rely on national practices in developing its own jurisprudence on this point. It must bear in mind, however, that its case load will be, by its very nature, quite politicized, and that this will increase the likelihood that defendants mount vigorous, energetic and original challenges to the charges. The Court’s definition of ‘disruption’ should not become a tool to muzzle defendants in such circumstances. This is why the Statute also specifies that such measures shall be taken only in exceptional circumstances, after other reasonable alternatives have proved inadequate. Also, exclusion from the hearing is only allowed for such duration as is strictly required. The Court must review periodically whether the accused may be permitted to return to the hearing. Where the accused has been excluded from the hearing, the Statute requires the Trial Chamber to make provision for the accused to observe the trial and instruct counsel from outside the Court room, through the use of communications technology, if required. The Statute recognizes a right to an interpreter. An accused who does not understand the proceedings is not ‘present’ at trial. Thus, the right to an interpreter seems axiomatic. Although the requirement that documents be translated may be cumbersome, time-consuming and costly, it has been recognized by the European Court of Human Rights as a corollary of the right to an interpreter.19 The provision does not require interpretation into the accuser’s mother tongue, or into a language of the accused’s choice. In an interlocutory ruling, the International Criminal Tribunal for the Former Yugoslavia denied an accused’s request for a ‘Croatian’ interpreter, given that there was regular translation of Serbo-Croatian, a sufficiently similar language.
The accused is entitled to defend himself or herself in person. There is at least two precedents, the case of Jean-Paul Akayesu before the International Criminal Tribunal for Rwanda, who fired his counsel after being convicted and acted on his own at the sentencing phase of his trial, and that of Slobodan Milosevic. According to the Strasbourg jurisprudence, the accused may be required to be assisted by a lawyer under certain circumstances, where this may affect the fairness of the trial. Furthermore, a defendant who acts without legal assistance may be held responsible for a lack of due diligence in the proceedings, and may not always be able to rely on claims of inexperience, although he or she is entitled to some degree of indulgence. In rare cases of a stubborn defendant who refuses all assistance by counsel, the Court might opt to appoint an amicus curiae (literally, ‘friend of the court’) in order to ensure that justice is not offended.
Although the accused is entitled to choice of counsel, this right cannot be unlimited. The ad hoc tribunals have adopted a rule requiring that counsel be either admitted to the practice of law in a State or be a university professor of law. The Rules of Procedure and Evidence of the International Criminal Court are somewhat different, and focus on substance rather than form, requiring that ‘counsel for the defense shall have established competence in international or criminal law and procedure, as well as the necessary relevant experience, whether as judge, prosecutor, advocate or in other similar capacity, in criminal proceedings’. Defense counsel must also have ‘an excellent knowledge of and be fluent in at least one of the working languages of the Court’.26 The European Commission on Human Rights has dismissed claims alleging a violation of the right to counsel on the basis of failure to respect professional ethics, where counsel was also a defense witness, and even for a refusal to wear a gown. But it is unclear who is to evaluate whether in fact counsel meet these requirements. Moreover, there is a potential conflict between these rather rigorous requirements in the Rules and Article 67(1)(d) of the Statute itself, which recognizes the defendant’s right ‘to conduct the defense in person or through legal assistance of the accuser’s choosing’.
In the International Covenant on Civil and Political Rights, the right to funded counsel for indigent defendants is subject to the requirement that this be in cases ‘where the interests of justice so require’, a provision that is echoed in Article 67 of the Rome Statute. Arguably, this will be the situation in all cases before the International Criminal Court. Probably for this reason, the International Law Commission removed the ‘interests of justice’ condition in its draft statute, 31 only to have it introduced again by the Preparatory Committee. Administration of the system of legal aid to indigent defendants is the responsibility of the Registrar. The trial is to begin with the accused being read all charges previously confirmed by the Pre-Trial Chamber. The Trial Chamber is to satisfy itself that the accused understands the nature of the charges. The accused will be asked to plead guilty or not guilty. The practice of the ad hoc tribunals has shown that it is not at all unusual for an accused to offer to plead guilty. This may be motivated by a number of factors, including a genuine feeling of remorse and contrition in the more sincere cases, and a hope that admission of guilt when conviction seems certain may result in a reduced sentence and better treatment in the more cynical cases. There were difficulties in circumscribing the rules applicable to guilty pleas because of differing philosophical approaches to the matter in the main judicial systems of national law. Under common law, a guilty plea is often the norm, obtained from an accused in exchange for commitments from the prosecutor as to the severity of the sentence and the nature of the charges. Under continental law, confession of guilt is viewed with deep suspicion and courts are expected to rule on guilt and innocence based on the evidence, irrespective of such a plea. But, on a practical level, the differences may not be so great, although there are admissions of guilt. At common law, undertakings by the prosecutor do not bind the judge, who must be satisfied that there is sufficient evidence and that there is no charade or fraud on the court. But erroneous notions by some European lawyers about common law procedure resulted in the addition of a totally superfluous provision, Article 65(5), to reassure them that plea negotiations could not bind the Court. In continental systems, an admission of guilt will be a compelling factor and will almost certainly simplify the process. Thus, it is not correct to say that continental judges are indifferent to admissions of guilt and that this does not accelerate the trial.
Under the Rome Statute, a ‘healthy balance’ has been struck between the two approaches. When an accused makes an admission of guilt, the Trial Chambers to ensure that he or she understands its nature and consequences that the admission has been made voluntarily after sufficient consultation with counsel, and that it is supported by the facts of the case. If the Trial Chamber is not satisfied that these conditions have been met, it deems the admission not to have been made and orders that the trial proceed. It may even order that the trial take place before another Trial Chamber. Alternatively, the Trial Chamber may consider that ‘a more complete presentation of the facts of the case is required in the interests of justice, in particular the interests of the victims’, and request additional evidence to be adduced.
Punishment and the rights of victims
Criminal law, in all domestic systems, culminates in a penalty phase. This is what principally distinguishes it from other forms of judicial and quasi judicial accountability, be they traditional mechanisms like civil lawsuits or innovative contemporary experiments like truth commissions. And the International Criminal Court is no different. According to the Rome Statute, the basic penalty to be imposed by the Court is one of imprisonment, up to and including life imprisonment in extreme cases. Reflecting developments in international human rights law, the Court excludes any possibility of capital punishment, despite the seriousness of the offences that it will judge.
Most domestic criminal codes set out a precise and detailed range of sentencing options. Often, each specific offence is accompanied by the applicable penalty, including references to maximum and minimum terms. Whether international justice should follow this pattern has been debated for decades, dating back to the sessions of the International Law Commission in the 1950s. The final result in the Rome Statute, however, is a few laconic provisions establishing the maximum available sentence and, by and large, leaving determination in specific cases to the judges. This constitutes, incidentally, a rather dramatic exception to the general policy of the drafters of the Statute and the Rules, which was to define and delimit judicial discretion as much as possible. In determining the appropriate sentence, the judges have been given a very free hand.
The reference point for the drafting of the Statute was usually ‘customary international law’, with particular attention to the case law of the ad hoc tribunals. To that extent, much of the exercise was one of codification. But, in the area of punishment, it seems appropriate to speak of progressive development rather than mere codification. After all, in the first great experiment in international justice, at Nuremberg and Tokyo, the maximum available penalty was death. In the late 1940s, capital punishment was imposed with unhesitating enthusiasm. There is in fact some old precedent for the notion that international law has recognized the death penalty as a maximum sentence in the case of war crimes. As for the ad hoc tribunals for the former Yugoslavia and Rwanda, they are entitled to impose life imprisonment, but without any statutory qualification as to the appropriate circumstances. In several cases, the Rwanda Tribunal has sentenced offenders to life terms, noting that had the offenders been judged in the corresponding domestic courts, the sentence would have been one of death. The Rome Statute allows for a maximum sentence of life imprisonment, but subjects this to a limitation, namely, that it be ‘justified by the extreme gravity of the crime and the individual circumstances of the convicted person’. It constitutes, therefore, from the standpoint of public international law, the most advanced and progressive text on the subject of sentencing.
The great Italian penal reformer of the eighteenth century, Cesare Beccaria, said that ‘punishment should not be harsh, but must be inevitable’. According to the International Criminal Tribunal for the Former Yugoslavia:
It is the infallibility of punishment, rather than the severity of the sanction, which is the tool for retribution, stigmatization and deterrence. This is particularly the case for the International Tribunal; penalties are made more onerous by its international stature, moral authority and impact upon world public opinion and this punitive effect must be borne in mind when assessing the suitable length of sentence.
Yet the Rome Statute has virtually nothing to say about the purposes of sentencing, as if this question is so obvious as to require no comment or direction. The only real reference is in the preamble, which declares that development rather than mere codification. After all, in the first great experiment in international justice, at Nuremberg and Tokyo, the maximum available penalty was death. In the late 1940s, capital punishment was imposed with unhesitating enthusiasm. There is in fact some old precedent for the notion that international law has recognized the death penalty as a maximum sentence in the case of war crimes. As for the ad hoc tribunals for the former Yugoslavia and Rwanda, they are entitled to impose life imprisonment, but without any statutory qualification as to the appropriate circumstances. In several cases, the Rwanda Tribunal has sentenced offenders to life terms, noting that had the offenders been judged in the corresponding domestic courts, the sentence would have been one of death. The Rome Statute allows for a maximum sentence of life imprisonment, but subjects this to a limitation, namely, that it be ‘justified by the extreme gravity of the crime and the individual circumstances of the convicted person’. It constitutes, therefore, from the standpoint of public international law, the most advanced and progressive text on the subject of sentencing.
The great Italian penal reformer of the eighteenth century, Cesare Beccaria, said that ‘punishment should not be harsh, but must be inevitable’. According to the International Criminal Tribunal for the Former Yugoslavia:
It is the infallibility of punishment, rather than the severity of the sanction, which is the tool for retribution, stigmatization and deterrence. This is particularly the case for the International Tribunal; penalties are made more onerous by its international stature, moral authority and impact upon world public opinion and this punitive effect must be borne in mind when assessing the suitable length of sentence.
Yet the Rome Statute has virtually nothing to say about the purposes of sentencing, as if this question is so obvious as to require no comment or direction. The only real reference is in the preamble, which declares that putting an end to impunity for serious international crimes will ‘contribute to the prevention of such crimes’.7 But recognizing that the Court has a deterrent effect is not entirely the same as the suggestion that sentencing policy as such is a genuine deterrent.
There has been some comment from the ad hoc tribunals on the purposes of international sentencing. In the Tadic sentence, Judge McDonald said that ‘retribution and deterrence serve as a primary purpose of sentence’. According to the International Criminal Tribunal for Rwanda:
It is clear that the penalties imposed on accused persons found guilty by the Tribunal must be directed, on the one hand, at retribution of the said accused, who must see their crimes punished, and over and above that, on the other hand, at deterrence, namely to dissuade for good, others who may be tempted in the future to perpetrate such atrocities by showing them that the international community shall not tolerate the serious violations of international humanitarian law and human rights.
Some pronouncements have taken a broader approach. In one sentencing decision, the International Criminal Tribunal for the Former Yugoslavia said that the purposes of criminal law sanctions ‘include such aims as just punishment, deterrence, incapacitation of the dangerous and rehabilitation’. In another, it noted that retribution was ‘an inheritance of the primitive theory of revenge’, adding that it was at cross-purposes with the stated goal of international justice which is reconciliation:
A consideration of retribution as the only factor in sentencing is likely to be counter-productive and disruptive of the entire purpose of the Security Council, which is the restoration and maintenance of peace in the territory of the former Yugoslavia. Retributive punishment by itself does not bring justice.
The debate about capital punishment threatened to undo the Rome Conference. Unlike many other difficult issues, which had been widely debated and, in some cases, resolved during the Preparatory Committee sessions, the question of the death penalty had been studiously avoided throughout the pre-Rome process. At the December 1997 session of the Preparatory Committee, Norwegian diplomat Rolf Einer Fife, who directed the negotiations on sentencing, simply refused to entertain debate on the matter, saying this would be addressed at Rome. Capital punishment might not have been such an issue were it not for sharp debates that took place in another forum, the
United Nations Commission on Human Rights. Beginning in 1997, progressive States had pushed through resolutions on abolition of the death penalty. A particularly difficult exchange took place in March and April 1998 and, although the abolitionists won the day, it appears that a handful of receptionist States decided that they would counterattack.
The campaign was led by a persistent group of Arab and Islamic States, together with English-speaking Caribbean States, and a few others such as Singapore, Rwanda, Ethiopia and Nigeria. The Rome negotiations were a perfect occasion for them to attempt to promote their position, because adoption of the Statute would require consensus. Asmall butwell-organised minority searching for a degree of recognition of the legitimacy of capital punishment was in a position to extort concessions, and to an extent they were successful. Desperate to resolve the issue and ensure support for the
draft Statute as a whole, the majority of delegates agreed to include a new Article stating that the penalty provisions in the Statute are without prejudice to domestic criminal law sanctions, as well as to authorize a declaration by the President at the conclusion of the Conference pandering to the sensitivity the death penalty from the Rome of the death penalty States on the issue. Nevertheless, the exclusion of Statute can be nothing but an important benchmark in an unquestionable trend towards universal abolition of capital punishment.
Available penalties
The basic sentencing provision in the Rome Statute declares that the Court may impose imprisonment ‘for a specified number of years, which may not exceed a maximum of 30 years’, 16 and that it may impose ‘[a] term of life imprisonment when justified by the extreme gravity of the crime and the individual circumstances of the convicted person’.17 But there were widely varying views about life imprisonment at Rome. States favorable to the death penalty argued that life imprisonment was too timid a penalty, of Course and they used the lever of capital punishment in order to obtain as harsh a provision as possible for custodial sentences. Several European and Latin American States, on the other hand, were in principle opposed to life imprisonment, and at any event to its imposition without the possibility of parole or conditional release at some future date. In the debate, many States called life imprisonment a cruel, inhuman and degrading form of punishment, prohibited by international human rights norms. The compromise was to allow life imprisonment, but with the proviso of mandatory parole review after a certain period of time, as well as the qualification that life imprisonment be imposed only ‘when justified by the extreme gravity of the crime and the individual circumstances of the convicted person’. As a final gesture of respect for the feelings of the more liberal States, the report of the Working Group contained a footnote stating that ‘some delegations expressed concerns about an explicit reference to life imprisonment’. The curious reference to ‘extreme gravity of the crime’ may seem out of place, since the Court is designed to try nothing but crimes of extreme gravity and, moreover, the most heinous offenders. It must be viewed as a signal from the Rome Conference favorable to clemency in sentencing practice. The Rules declare that ‘extreme gravity and the individual circumstances’ are to be assessed with reference to ‘the existence of one or more aggravating circumstances’.
The Court is empowered to authorize release after part of the sentence has been served. But this is not strictly speaking conditional release or parole, in the sense this has in most national legal systems, because the decision to free the prisoner is final and irreversible. Article 110 authorizes the Court to reduce the sentence if it finds that one or more of the following factors are present: the early and continuing willingness of the person to cooperate with the Court in its investigations and prosecutions; the voluntary assistance of the person in enabling the enforcement of the judgments and orders of the Court in other cases, and in particular providing assistance in locating assets subject to orders of fine, forfeiture or reparation which may be used for the benefit of victims; and other factors establishing a clear and significant change of circumstances sufficient to justify the reduction of sentence.
The Rome Statute also enables the Court to impose a fine, but only ‘[i]n addition to imprisonment’, and ‘forfeiture of proceeds, property and assets derived directly or indirectly from that crime, without prejudice to the rights of bona fide third parties’. There had been proposals to include forfeiture of ‘instrumentalities’ of crime as well as proceeds, but they were dropped. In the context of war crimes, ‘instrumentalities’ might include aircraft carriers and similar hardware, and this possibility seemed just a bit too awesome for any consensus to be reached!
In determining the sentence, the Court is to consider such mitigating and aggravating factors as the gravity of the crime and the individual circumstances of the offender. The Statute also declares, in Article, that official capacity shall not, ‘in and of itself, constitute a ground for reduction of sentence’. In reality, the fact that a convicted person held a senior government position will usually be an aggravating factor, as is confirmed by a number of sentencing rulings of the ad hoc tribunals.25When a superior is being prosecuted on the basis of command responsibility, the level of culpability is closer to negligence than real intent and premeditation, and the Court will presumably temper justice with clemency. But ‘calculated dereliction of an essential duty cannot operate as a factor in mitigation of criminal responsibility’. In the past, international criminal law instruments dismissed the defense of superior orders, but said the fact a person was acting under orders ought to be a mitigating factor in imposing sentence. Although the Rome Statute is silent on this point, the Rules suggest that most if not all unsuccessful defenses, to the extent the grounds invoked have any resonance, will encourage a degree of mitigation. The post-World War II tribunals recognized a wide range of mitigating factors, including superior orders, age, position in the military hierarchy, suffering of the victims, efforts by the criminal to reduce suffering, and duress.29 The Rules of Procedure and Evidence adopted by the Preparatory Commission list a range of mitigating and aggravating factors, including damage caused, harm caused to victims and their families, the nature of the unlawful behavior and the means employed to execute the crime, the degree of participation, the degree of intent, the age, education and social and economic condition of the convicted person, conduct after the act, efforts to compensate victims, prior convictions for similar crimes, abuse of power and particular cruelty in commission of the crime.
The relevance of motive in terms of the actual elements of the crimes remains somewhat controversial. But in the area of sentencing, there can be no doubt that it is germane. According to the International Criminal Tribunal for the Former Yugoslavia:
Where the accused is found to have committed the offence charged with cold, calculated premeditation, suggestive of revenge against the individual victim or group to which the victim belongs, such circumstances necessitate the imposition of aggravated punishment. On the other hand, if the accused is found to have committed the offence charged reluctantly and under the influence group pressure and, in addition, demonstrated compassion towards the victim or the group to which the victim belongs, these are certainly mitigating factors which the Trial Chamber will take into consideration in the determination of the appropriate sentence.
In imposing sentence of imprisonment, the International Criminal Court is to ‘deduct the time, if any, previously spent in detention in accordance with an order of the Court. The Court may deduct any time otherwise spent in detention in connection with conduct underlying the crime.’ This seems only fair, although it was opposed by some delegations at the Rome Conference.
When sentence is pronounced for more than one offence, the Court must specify the sentence for each offence as well as a total period of imprisonment. The total period cannot be less than the highest individual sentence pronounced, nor may it exceed the total set out in Article 77(1) (b), that is, life imprisonment or a fixed term of thirty years. In effect, the Statute leaves to the judges of the Court the criteria to be applied in the imposition of multiple sentences. It imposes a ceiling, and from a practical standpoint in cases of the most serious crimes there will be little discretion to exercise, because individual offences will deserve the maximum available sentence.
Enforcement
The Court will have no prison, and must rely upon States parties for the enforcement of sentences of imprisonment. States are to volunteer their services, indicating their own willingness to allow convicted prisoners to serve the sentence within their own prison institutions. The Statute explicitly refers to ‘the principle that States Parties should share the responsibility for enforcing sentences of imprisonment, in accordance with principles of equitable distribution’. Failing an offer from a State party, the host State – the Netherlands – is saddled with this responsibility. A somewhat similar mechanism exists for the ad hoc tribunals.
After sentencing an offender, the Court will designate the State where the term is to be served, and it may change this determination at any time. In choosing a State of detention, the Court must take into account the views of the sentenced person, his or her nationality, and ‘widely accepted international treaty standards governing the treatment of prisoners’. Furthermore, conditions of detention must be neither more nor less favorable than those available to prisoners convicted of similar offences in the State where the sentence is being enforced. There can obviously be no question of sending a prisoner to a State with prison conditions that do not meet international standards. However, the reference to ‘international treaty standards’ is in fact rather vague, and would seem to exclude application of the rigorous and quite precise Standard Minimum Rules for the Treatment of Prisoners, as these are not a treaty but only a ‘soft law’ resolution of the UN Economic and Social Council.
The Court’s sentence is binding upon the State of enforcement, and the latter is without any discretion whatsoever to modify it. The Court is required to review a sentence after two-thirds of the term have been served or, in the case of life imprisonment, after twenty-five years. In deciding whether to shorten the term of imprisonment at this stage, the Court is to take into account the prisoner’s willingness to cooperate with the Court, his or her assistance in enforcing an order of the Court such as in locating assets subject to fine, forfeiture or reparation, and any other factors ‘establishing a clear and significant change of circumstances sufficient to justify the reduction of sentence’.
When sentence is completed, if the prisoner is not a national of the State where the penalty is being enforced, he or she may be transferred to a State ‘obliged to receive him or her’, or to any other State that agrees. It may well happen that such an individual is wanted elsewhere for criminal prosecution. The Statute bars prosecution for the same crimes, of course, according to the ne bis in idem principle.44 But, where extradition is sought for other crimes, States may extradite a prisoner after release pursuant to their own laws and treaties. In this respect, however, the Statute imposes a rule of ‘specialty’ similar to that in effect in most bilateral extradition matters. The State where the sentence is served cannot prosecute or extradite for a crime committed prior to delivery of the prisoner for service of sentence, unless this has been authorized by the Court.45 Thus, a prisoner could be prosecuted for a crime committed while serving the sentence, such as escaping lawful custody or assault on a prison guard.
Victims of crimes and their concerns
The preamble to the Statute recognizes that ‘during this century millions of children, women and men have been victims of unimaginable atrocities that deeply shock the conscience of humanity’. While this affirmation is unchallengeable, there were widely varying views about the role of victims in the international criminal process itself. As in many other aspects of the procedure of the Court, different justice systems take very different approaches to the participation of victims. Some recognize an active role for victims, who may initiate criminal trials or intervene in them, and even obtain judgments that effect compensation or indemnification in a civil sense as well as criminal conviction and sentence. Other systems are more cautious about the role of victims, fearful that this may distort the social goals of criminal justice and also uncomfortable with an unbalanced procedure in which the accused confronts two adversaries, the prosecutor and the victim, instead of one. Nevertheless, the debate took place in the context of a growing emphasis on the importance of victims in international human rights law and in international humanitarian law. Furthermore, there is an important trend in criminal justice towards what is called ‘restorative justice’, an approach that is victim-oriented.
Victim-related issues are addressed in various provisions of the Statute. To further emphasize this matter, the Preparatory Commission drafted a ‘general principle’ as part of the Rules:
A Chamber in making any direction or order, and other organs of the Court in performing their functions under the Statute or the Rules, shall take into account the needs of all victims and witnesses in accordance with Article 68, in particular children, elderly persons, persons with disabilities and victims of sexual or gender violence.
From the standpoint of procedure, victims may participate in the activity of the International Criminal Court in a number of ways. First, they may intervene before the Pre-Trial Chamber when the Prosecutor is seeking authorization to proceed with an investigation at his or her own initiative. Presumably, victims will tend to support the Prosecutor. To this extent, the right to participate is not too far removed from the situation of the partie civile (literally, ‘civil party’, a private complainant) in Romano-Germanic legal systems, who may attempt to initiate prosecution. In a more general sense, victims may also participate in the course of challenges to jurisdiction or admissibility, even in cases that have been initiated by States parties or by the Security Council. Victims may, however, also find themselves at cross purposes with the Prosecutor, when he or she decides not to proceed because there are ‘substantial reasons to believe that an investigation would not serve the interests of justice’. The Prosecutor is required to take into account ‘the gravity of the crime and the interests of victims’ in making such a determination. The presence of victims before the Pre-Trial Chamber should ensure that the Prosecutor does this in a genuine manner.
Even if victims do not participate actively in the trial process, as parties or interveners, their presence is virtually indispensable as witnesses. Here there are a number of particular concerns, such as protection of witnesses from reprisals, and ensuring that the investigation and trial themselves do not constitute further victimization of those who have already suffered terribly. At the investigation stage, the Prosecutor is required to ‘respect the interests and personal circumstances of victims and witnesses, including age, gender as defined in Article 7, paragraph 3, and health, and take into account the nature of the crime, in particular where it involves sexual violence, gender violence or violence against children’. The Prosecutor is also entitled to withhold disclosure of evidence if this may lead to the ‘grave endangerment’ of a witness or his or her family. Finally, the Pre-Trial Chamber is to ensure ‘the protection and privacy of victims and witnesses’.
Similar responsibilities are imposed upon the Trial Chamber. Specifically, it is to take ‘appropriate measures to protect the safety, physical and psychological well-being, dignity and privacy of victims and witnesses’. The Court is to have regard to all relevant factors, including age, gender, health, and the nature of the crime, ‘in particular, but not limited to, where the crime involves sexual or gender violence or violence against children’. With this in mind, the Court may derogate from the principle of public hearings. It may hold proceedings in camera, or permit evidence to be presented ‘by electronic means’. Presumably, this refers to testimony where the witness testifies by video and cannot see the alleged perpetrator, a practice that is widely used in national justice systems involving children. The views of the victim or witness are to be canvassed by the Court in making such a determination.
Victims are entitled to intervene at the trial stage, when their ‘personal interests’ are affected. The ‘views and concerns’ of witnesses may be presented at any stage of the proceedings, but in a manner which is not prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial. It appears that victims may be represented by counsel in the presentation of their ‘views and concerns’. Special rules exist when an accused enters a guilty plea. In such cases, the Trial Chamber is empowered to require the production of additional evidence where it considers ‘that a more complete presentation of the facts of the case is required in the interests of justice, in particular the interests of the victims’. This seems to be aimed at situations where a ‘deal’ is struck between Prosecutor and defense and where sentencing may not fully take into account the rights and interests of victims.
The Rome Statute allows the Court to address the issue of reparations to victims, establishing general principles for ‘restitution, compensation and rehabilitation’. The Court is empowered to ‘determine the scope and extent of any damage, loss and injury to, or in respect of, victims’, acting on its own initiative in cases where there is no specific request from the victims themselves. The purpose of this ‘determination’, it appears, is to enable enforcement of the rights of victims before national courts. According to Christopher Muttukumaru, Court rulings concerning reparations ‘must be sufficiently practicable, clear and precise to be capable of enforcement in the courts of, or by the other relevant national authorities of, the States Parties’. More specifically, the Court may ‘make an order directly against a convicted person’ specifying reparations, although it may not make an order against a State as such. To some extent the Court can control enforcement of the order, but only if there are resources in the trust fund for victims. It may also, in this context, request States to proceed with seizure of proceeds, property and assets, with a view to forfeiture and ultimate restitution. States are required to give effect to such forfeiture orders.
Two distinct institutions are contemplated by the Statute with a view to enhancing the role and the rights of victims. A Victims and Witnesses Unit is to be established by the Registrar. Its responsibilities include the provision of protective measures and security arrangements, counseling and other appropriate assistance for witnesses, victims who appear before the Court and others who are at risk on account of testimony given by such witnesses. The Unit is to include staff ‘with expertise in trauma, including trauma related to crimes of sexual violence’. The drafters did not, however, specifically provide for the creation of other units, such as a unit responsible for legal assistance to defendants.
The Rome Statute also provides for creation of a Trust Fund which will hold fines and assets, and dispose of them. The Trust Fund is to be used ‘for the benefit of victims of crimes within the jurisdiction of the Court, and of the families of such victims’. The Trust Fund was established by decision of the Assembly of States Parties at its first session in September 2002. The Trust Fund is managed by a five-person Board of Directors who serves in a voluntary capacity. There were far more ambitious proposals for compensation of victims, but these fell by the wayside during the negotiations. The concept of international compensation is seductive, but it is not without many practical obstacles. Experience of the ad hoc tribunals suggests that by and large most defendants succeed in claiming indigence. For example, they are almost invariably represented by tribunal-funded counsel after making perfunctory demonstrations that they are without means to pay for their own defense. The irony is that these are the very people who are widely believed to have looted the countries where they once ruled. It may simply be unrealistic to expect the new Court to be able to locate and seize substantial assets of its prisoners.
Concluding remark
On March 23, 2010 Bangladesh ratified the Rome Statute keeping national interests in mind, in the memory of those millions who gave up their lives in 1971, who were victims of genocide, war crimes and crimes against humanity, and who, if they had chance, would have demanded justice for their deaths and would also have wanted, justice for fellow victims, anywhere in the world. Ratifying the Rome Statute in the month of March, when genocide began in 1971, was a fitting moment, not only to start the process to prosecute 1971 crimes, but also to join the international process against impunity and for justice. Every war we have a gender perspective, the wars are always against our mothers. And what could be the best opportunity when the mother is leading the country and the mother who has already signed and ratified the ICC Statute in the year 2002 and 2010. So far you already know the first review conference on the International Rome Statute will be a landmark event. Similar to 1998 all states once again can come together and discuss the mechanisms of international justice as well as the impact of the International Criminal Court. In addition to receiving the good-will of 110 States Parties and others, Bangladesh can start cooperating with the Court after the ratification.
We have seen the ICC has very few but very significant agenda. That are war crime, genocide and crime against humanity and the crime of aggression shall be discussed in the forthcoming meeting which will be held in Kampala, May 2010. And by terms of a State’s person seek this is a very important agenda. How are we going to redefine this aggression related crimes, especially for the developing country who are poor, who are trying to serve their people with limited resources, who are competing with the hegemony of multinational economy distrust and capturing our national economy. We have to surrender our environment in the name of so called development. We witnessed those incidents when the state violated human rights, when the state acted against the constitution and when the state curtailed the rights of the person individuals. Well, when we are discussing the subject across the world, especially in a developing democracy and developing economy, one major question is asked, “who guides the guardians?” we are searching for this for the last many years. We had not yet found any solution. Many years back when V.I. Lenin took power in the Soviet Union, he said “The major question state purifies the mankind or mankind purifies the state”. Then Lenin answered this is a question which needs more time to answer and the mankind needs more time to answer.
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