Crimes such as genocide, crimes against humanity and war crimes are often described as being international crimes punishable by any State regardless of any territorial or nationality link to the perpetrator or the victim.1 Under Article 5 of the Rome Statute of the International Criminal Court (Rome Statute) these crimes fall within the subject-matter jurisdiction of the International Criminal Court (icc).2 This international organization, which was established “to put an end to impunity for the perpetrator” of “the most serious crimes of concern to the international community as a whole”,3 is according to Article 12(2) of its Statute (Rome Statute), prima facie limited to exercising jurisdiction if one of these crimes is committed within the territory of a State party or by a national of a State party.4
This jurisdictional limitation seems paradoxical in light of the statement in Tadic Interlocutory Appeal on Jurisdiction – three years before the adoption of the Rome Statute – that this category of crimes “are really crimes which are universal in nature […] transcending the interest of any one State”.5 However, to say that the icc only exercises jurisdiction over the territory and nationals of its States parties’ is erroneous as the drafters of the Rome Statute made, as some have termed it, a “gift” to the Security Council (SC) of the United Nations (UN).6 Indeed, Article 13(b) of the Rome Statute provides that the preconditions of Article 12 (2) – territoriality or active nationality – do not apply if “a situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by the Security Council acting under Chapter vii of the Charter of the United Nations”.7 In addition to the SC referrals, Article 12 (3) of the Rome Statute provides that a State not party to the Statute “may, by declaration lodged with the Registrar, accept the exercise of jurisdiction by the Court”.8 Thus, not only can the SC take advantage of the existence of the icc, States – like Côte d’Ivoire, Palestine and Ukraine who have done so in practice – may also do so by issuing a declaration of acceptance under Article 12 (3). Even though many thought Article 13 (b) would become a dead letter,9 the SC, by resolutions 1593 (2005) and 1970 (2011), referred the situations in Darfur, Sudan and Libya to the icc.10
For reasons that are intrinsically related to the fact that they concern non-party States to the Rome Statute, the Darfur and Libya referrals have attracted significant attention. Indeed, neither Sudan nor Libya is a State party to the Rome Statute; thus neither has consented to implementing the provision of the Rome Statute in their domestic law nor have they consented to the icc trying their nationals for acts committed within their territories.
But is this really a problem? After all, the Nuremberg Judgment established a new relationship between the individual, the State and the international community.11 The following features stand out from the landscape fashioned by Nuremberg: (1) individuals are immediately responsible under international law for the crimes of aggression, genocide, crimes against humanity and war crimes; (2) individuals are criminally responsible regardless of whether they acted in an official capacity; (3) individuals cannot be relieved of their responsibility under international law even if internal law is silent, condones or orders the conduct in question; and (4) that international criminal responsibility gives rise to the potential for prosecution by international criminal jurisdiction and national criminal jurisdiction through the exercise inter alia of universal jurisdiction.12 As Broomhall notes, these principles would progressively become inextricably linked to the foundation of the post-World War ii international legal order.13
Eventually, the Cold War risked freezing the development of the principles avowed at Nuremberg entirely. The international deadlock, nevertheless, did not prevent domestic courts from keeping the field of international criminal law alive through the principle of universality. Indeed, the trial of Adolf Eichmann in 1961 reignited the idea that genocide, crimes against humanity and war crimes would not go unpunished.14 That being said, the Eichmann ‘saga’ did not lead to direct arraignment of similar types of cases in the short term. Rather, it took nearly two decades before legislative reforms and thus proceedings such as Barbie,15 Demjanjuk,16 Finta 17 and Pinochet 18 took place.19 By the time of the fall of the Berlin wall the idea that perpetrators of international crimes were hostis humani generis, and thus subject to universal jurisdiction, was well established.20
Nevertheless, the icc’s exercise of jurisdiction over non-party States remains an extremely contested issue.21 Indeed, it remains unclear whether the icc’s exercise of criminal jurisdiction over non-party States in situations triggered under Article 13 (b) is based on universal jurisdiction or on the power of the SC under Chapter vii of the UN Charter. For instance, Cherif Bassiouni noted that “[the Security] Council’s right to refer ‘situations’ to the icc, irrespective of the crime’s location and the nationality of the perpetrator or victim, [is] based on the theory of universal jurisdiction.”22 Conversely, Madeline Morris argues that “the tribunals’ jurisdiction is more properly viewed as arising from the powers of the Security Council to take such steps as are required to restore or maintain international peace and security.”23 Since these conceptions of an Article 13 (b) referral are fundamentally opposed, it is of paramount importance to examine how both respectively interact with other norms of international law in practice.
This book explains that there are two conceptions of an Article 13 (b) referral. As will be further elaborated below, these two conceptions are: (1) universal jurisdiction arising from the nature of the crimes and (2) jurisdiction based on the powers of the SC under Chapter vii. These are ‘conceptions’ of a ‘concept’. In the context of an Article 13 (b) referral, the ‘concept’ at stake is the exercise of jurisdiction over States which are neither party to the Rome Statute nor consent to the icc’s exercise of jurisdiction. While only twelve days after the entry into force of the Rome Statute the SC passed an ‘hostile’ resolution in which it noted that ‘not all States are parties to the Rome Statute’,24 there is consensus that an Article 13 (b) referral can lead to the exercise of jurisdiction over the territories and nationals of non-party States.
What is rarely acknowledge however is that Article 13 (b) entails an exercise of prescriptive and adjudicative criminal jurisdictions. The Rome Statute establishes a permanent international criminal court with the jurisdiction to prosecute individuals responsible for having committed the most serious crimes of concern to the international community as a whole. This is the exercise of adjudicative jurisdiction. In contrast with the ad hoc tribunals, the Rome Statute goes further than establishing a Court; it also authoritatively defines the crimes the Court is to apply. Although customary international law is not the primary source of law to be applied by the Court – the Statute itself is – the averred ambition of the drafters of the Rome Statute was to codify customary international law. Most commentators are ready to recognize this as the case for the broad categories of crimes which fall under the general jurisdiction of the Court – aggression, genocide, crimes against humanity and war crimes.25 However, as the saying goes, ‘the devil is in the detail’ – what is contested is not the customary status of these core crimes but some of the specific acts that may constitute their actus reus. As many observers argue, the negotiations culminating in the Rome Statute may have brought into effect some new crimes within the realm of international criminal law (e.g., crimes against humanity of apartheid, forced pregnancy, gender persecution, enforced disappearance, the war crimes of transferring, “directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies”, attack against peacekeepers, and environmental war crime).26
Moreover, the Statute postulates that the icc’s jurisdiction cannot be challenged on the basis of the accused’s official capacity.27 That provision is often said to apply to all, even high-ranking officials of States not party to the Rome Statute. Once again, many observers argue that this provision is not reflective of customary international law.28 The fact that the first serving Head of State to appear before an international criminal court only occurred in 2014 evinces that something new is happening in The Hague – not to mention that this particular case concerned the Head of a State party to the Rome Statute.
While it is clear that customary international law applies to all States and to all parties to a conflict, can the provisions of a treaty allegedly made in the interest of the international community as a whole also have the same dramatic effect? Article 13 (b) of the Rome Statute answers that question in the affirmative. The two ‘conceptions’ adopted in this book vie to answer how this can legally operate.
Methodological Approaches
The present study adopts two methodological approaches. Firstly, it is trusted that the concept-conception distinction developed by Dworkin offers the best tool for clarifying the nature of disagreements about what an Article 13 (b) referral is, what the effects of an Article 13 (b) referral are and what an Article 13 (b) referral should be.29 According to the concept-conception distinction we can agree on a concept but each of us will have our own conception of the same concept. Thus, in the context of an Article 13 (b) referral, the concept at stake is the exercise of jurisdiction without neither a territorial nor active nationality nexus to a State party to the Rome Statute. There is consensus that an Article 13 (b) referral can lead to the exercise of jurisdiction by the icc over crimes committed by individuals that are not nationals of a State party to the Statute and in territories that are not of a State party to the Statute. If there were no Article 13 (b) referrals, the icc would not be entitled to exercise jurisdiction over such situations unless the crimes were either committed in the territory of a State party or by a national of a State party.30 Admittedly, according to Article 12 (3) the icc can exercise jurisdiction over non-party States if either the territorial State or national State issued a declaration of acceptance. As such, the “very meaning” of an Article 13 (b) referral is the exercise of jurisdiction without the consent of neither the territorial State nor the national State.31 This will serve “as a kind of plateau” on which further thoughts and arguments can be built.32 The exercise of jurisdiction over nationals and territories of a State neither party to the Statute nor consenting to the jurisdiction provides the ‘concept’ of an Article 13 (b) referral and competing positions about the nature of this jurisdiction are ‘conceptions’ of that concept.
However, the crux of our concept is not simply the exercise of jurisdiction over nationals and territories of a State neither party to the Statute nor consenting to the jurisdiction. The crux of our concept is the exercise of prescriptive and adjudicative criminal jurisdictions over a situation without being based on the nationality and territoriality principle. The next chapter will identify the following two conceptions of this concept: (1) universal jurisdiction arising from the nature of the crimes; and, (2) jurisdiction based on the powers of the SC under Chapter vii of the UN Charter. By using this distinction, this book intends to offer a critical account of approaches relying on the extraordinary legal nature of either the Rome Statute or the SC’s Chapter vii powers. It will be demonstrated that both of these conceptions capture the diverging views of the icc Judges, the Office of the Prosecutor, States and scholars.
Secondly, it is believed that a comparative conflict of norms approach is a useful tool for this study. By adopting a norm conflict approach this book, firstly, offer a ‘toolbox’ to academics and practitioners dealing with the icc’s exercise of jurisdiction over a crime committed by nationals and in territories of States not party to the Rome Statute. Secondly, when analyzed using a comparative conflict of norms approach we see how each ‘conception’ of a referral under Article 13 (b) interacts with other norms of international law. For instance, the icc, especially under the ‘universal jurisdiction conception’, may be affected by inherent conflicts. That is, situations where norms of its Statute are alleged to constitute, in and of themselves, breaches of other norms. The validity of a SC referral under the ‘Chapter vii conception’ may also be troubled by an inherent normative conflict, on the basis of an inconsistency between the act of the SC and its constituent instrument, the UN Charter. As we will see, by adopting a comparative conflict of norms resolution approach both ‘conceptions’ of a referral under Article 13 (b) Rome Statute are exposed in their most detailed relation and impact on other norms of international law.
[a] conflict between two norms occurs if in obeying or applying one norm, the other one is necessarily or possibly violated33
This definition of norm conflict includes not only scenarios of incompatibility between two norms but also contradictions between permissions and obligations.34 If the two norms can be applied together without contradiction in all circumstances, they accumulate. One form of accumulation that is particularly relevant for us here is when “one norm […] sets out a general rule and another norm […] explicitly provides for an exception to that rule”. In a relation of explicit ‘rule-exception’ there is simply an accumulation of norms. If the two norms accumulate, they do not conflict.35 For instance, consider immunity of State officials from foreign jurisdiction: the general rule – immunity of State officials – applies ‘unless’ immunity is waived. This is a ‘rule-exception’ situation. Are immunities of State officials relevant when the icc exercises jurisdiction over the Head of State of a State neither party to the Rome Statute nor consenting to the icc jurisdiction? Both of our ‘conceptions’ address this issue in a different manner.
The Convention should so far as possible be interpreted in harmony with other rules of international law of which it forms part, including those relating to the grant of State immunity.36
However, we should note that there is a limit to harmonious interpretations especially where a treaty exposes clearly formulated rights or obligations that lead unequivocally to a breach of another norm. When “the role of interpretation of treaty terms as a conflict-avoidance technique stops”37 it is time to move on to conflict-resolution methods.
A genuine conflict can be resolved by establishing definite relationship of priority between concurring norms. Conflict resolution necessitates that one conflicting norm prevails or has priority over another. Now, in order to justify a particular choice of the applicable norm and a particular conclusion legal reasoning has recourse to conflict resolution maxims such as the lex specialis, lex posterior, lex prior and lex superior.38 If the conflict cannot be resolved then the adjudicator has to accept that he is in a non liquet and that to push further would be a travesty of law that may affect the legitimacy of his own institution. That is where the comparative conflict of norm approach will draw the line between the two ‘conceptions’ of Article 13 (b). It will show which conception is able to coherently deal with with other norms of public international law, including the law of treaties, the law of immunities and specialized fields such as international human rights law. The norm conflict approach shows to what extent each ‘conception’ needs to be stretched in order to avoid or resolve a norm conflict with one or more of these legal barriers. One should, however, always bear in mind that there are limits to legal reasoning.
The Goals of the Book
One of the intermediate goals of this book is to signal to those that apply the substantive provisions of the Rome Statute evenly in all situations – irrespective of whether at the time of the impugned conduct the Rome Statute was formally an applicable law for these individuals and territories – that they are espousing the ‘universal jurisdiction conception’. Moreover, it will be shown that the Court itself seems to have adopted this particular approach. Another intermediate goal is to show how the icc should exercise its jurisdiction if it adopts a ‘Chapter vii conception’. While this author intuitively sympathized with the ‘universal jurisdiction conception’ when beginning to draft this book, we will discover that this conception faces many legal flaws that are difficult to reconcile. With respect to the ‘Chapter vii conception’, these difficulties are less insurmountable due to the almost limitless powers we acknowledge the SC possesses when it fulfills its primary responsibility of maintaining international peace and security. However, one has to always remember that, as Antonio Cassese so eloquently put it in the Tadic Interlocutory Appeal on Jurisdiction, “neither the text nor the spirit of the Charter conceives of the Security Council as legibus solutus (unbound by law).”39
The ultimate goals of this book are to examine what an Article 13 (b) referral is, what the legal effects of an Article 13 (b) referral are and finally what an Article 13 (b) referral should be. This is the main reason why the concept-conception distinction is adopted. To really emphasize how both ‘conceptions’ treat the ‘concept’ of this study; a comparative norm conflict approach is taken to analyze their interaction with three legal barriers. These three legal barriers are (1) the sovereignty of States not party to the Rome Statute; (2) the principle of legality, and; (3) the immunity of State officials. These three legal barriers occur when the icc exercises ‘universal’ prescriptive and adjudicative criminal jurisdictions.
Plan of the Book
Chapter 1 will provide the theoretical background to this study. It will explain the various uses of the term ‘jurisdiction’, through an excursus in the history of international criminal law it will show how we come to the conclusion that there are two ‘conceptions’ of the ‘concept’ of this book, it will survey these two conceptions, and, finally, it will address the amendments to the Rome Statute that have been adopted from 2010 onwards and assess them with regard to our ‘concept’ and its conceptions.
In Chapter 2 our two ‘conceptions’ will be faced with the first legal barrier to the icc’s exercise of jurisdiction under Article 13 (b) Rome Statute: that is the sovereignty of States. It will show that there has been attempt on the part of the Rome Statute drafters to prescribe crimes for others and entitle the icc to adjudicate these crimes wherever they are committed. How this assertion of authority operates will be analyzed under our two ‘conceptions’. Both ‘conceptions’ must necessarily use all available legal tools to avoid or resolve the conflicts they face with the various facets of sovereignty, including pacta tertiis nec nocent and the Monetary Gold Principle. This chapter will show that the ‘revolution’ of international law necessary for the ‘universal jurisdiction conception’ to be considered legally valid has not yet occurred.
Chapter 3 confronts both ‘conceptions’ with a particular problem the Rome Statute poses with respect to individuals prosecuted before the icc for conduct that occurred while the Rome Statute was not formally an applicable law in relation to the conduct in question. This chapter will demonstrate that one of the pitfalls of not codifying customary international law is that the icc’s retroactive exercise of jurisdiction potentially clashes with the principle of legality. Moreover, it will show that provisions of the Rome Statute do not comprehensively address this problem and that we must necessarily adopt either the ‘universal jurisdiction conception’ to avoid that challenge or implant a norm that is exterior to the Statute to fully abide by the principle of legality.
Chapter 4 will address the immunity of State officials. It will show that the status under customary international law of the Statute provisions on this issue is highly contested. One can resolve the normative conflicts which arise by adopting a ‘Chapter vii conception’ or a ‘universal jurisdiction conception’. While the icc initially adopted a ‘universal jurisdiction conception’ of this question, the strong objections that were raised both by States party and not party to the Statute appear to have convinced the icc that ‘not all States are party to the Statute’ and that a ‘Chapter vii conception’ was less detrimental to its objectives.
Finally, Chapter 5 will ask: what if Article 13 (b) did not exist? We will see that between the SC and the icc there is an ‘amour impossible’ if not ‘interdit’. Bearing in mind that the ‘Chapter vii conception’ relies on the extraordinary power of the SC, one might wonder whether the SC can command the Court. This chapter will show that while these two international organizations have a ‘bond’, the SC cannot bind the icc.
The Conclusion will summarize and offer some general remarks on the findings made throughout this book.
The International Law Commission (ilc) concluded in its 1996 Draft Code of Crimes Against the Peace and Security of Mankind that genocide, crimes against humanity and war crimes attract universal jurisdiction, See Report on the Work of its Forty-Eight Session, UN doc. A/51/10, p. 28; Princeton Principles on Universal Jurisdiction, reprinted in Macedo, Universal Jurisdiction, 22, Principle 2 provides for universal jurisdiction over the crime against peace, see also Scharf, “Crime of Aggression,” 357.
Rome Statute of the International Criminal Court, July 17, 1998, 2187 U.N.T.S., at 3 (hereinafter the Rome Statute or the Statute). Rome Statute, Art. 5 (2) read as follows: “The Court shall exercise jurisdiction over the crime of aggression once a provision is adopted in accordance with Articles 121 and 123 defining the crime and setting out the conditions under which the Court shall exercise jurisdiction with respect to this crime. Such a provision shall be consistent with the relevant provisions of the Charter of the United Nations.” The crime of aggression is now defined in art. 8bis of the Rome Statute, and the conditions for the icc exercise of jurisdiction in 15bis and ter. These articles were adopted at the Review Conference in Kampala, Resolution RC/Res.6, June 11, 2010. The Assembly of States Party at its 16th Session adopted the Resolution on the Activation of the Jurisdiction of the Court over the Crime of Aggression, Dec. 14, 2017, ICC-ASP/16/Res.5, which activates the Court’s jurisdiction over the crime of aggression as of 17 July 2018.
Rome Statute, preamble, par. 5–6.
Rome Statute, Art. 12 (2) reads as follows: “In the case of Article 13, paragraph (a) or (c), the Court may exercise its jurisdiction if one or more of the following States are Parties to this Statute or have accepted the jurisdiction of the Court in accordance with paragraph 3: (a) The State on the territory of which the conduct in question occurred or, if the crime was committed on board a vessel or aircraft, the State of registration of that vessel or aircraft; (b) The State of which the person accused of the crime is a national.”
Prosecutor v. Tadic, Case No. IT-94-1, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction (Oct. 29, 1997) par. 59 (hereinafter Tadic Interlocutory Appeal Decision).
Condorelli and Villalpando, “Can the Security Council extend,” 572.
Rome Statute, Art. 13 (b).
See also Rule 44 of the Rules of Procedure and Evidence, Declaration provided for in Article 12, paragraph 3, UN Doc. PCNICC/2000/1/Add.1 (2000).
The United States and China are among the seven States that voted against the adoption of the Statute. Considering that they are Permanent members of the Security Council with a veto power it was deemed improbable that the SC would refer a situation to the icc.
UN Doc. S/RES/1593 of 31 March 2005; UN Doc. S/RES/1970 of 26 February 2011..
Broomhall, International Justice, 19.
Ibid., at 19; see also ilc, Principles of International Law recognized in the Charter of the Nürnberg Tribunal and in the Judgment of the Tribunal, Doc. A/1316 (A/5/12), 1950, par. 95–127
Broomhall, International Justice, 19.
Attorney-General of the Government of Israel v. Adolf Eichmann, Israel, Supreme Court (sitting as a Court of Criminal Appeal), Judgment of 29 May 1962, reproduced in International Law Reports, vol. 36, pp. 277–343 (hereinafter Eichmann Appeal Judgment); Attorney-General of the Government of Israel v. Adolf Eichmann, Israel, District Court of Jerusalem, Judgment of 12 December 1961, reproduced in International Law Reports, vol. 36, pp. 5–276. (hereinafter Eichmann Judgment).
Fédération Nationale des Déportées et Internés Résistants et Patriotes and Others v. Barbie, Court of Cassation (Criminal Chamber), 20 December 1985, reproduced in International Law Report, vol. 78, pp. 124–148.
Demjanjuk v. Petrovsky, 776 F. 2d 571–Court of Appeals, 6th Circuit 1985.
Regina v. Finta, Supreme Court of Canada, 24 March 1994.
Regina v. Bartle and the Commissioner of Police for the Metropolis and Others Ex Parte Pinochet Ugarte, United Kingdom, House of Lords, 25 November 1998, reproduced in International Legal Materials, vol. 37 (1998), pp. 1302–1339 (hereinafter Pinochet No. 1); Regina v. Bartle and the Commissioner of Police for the Metropolis and Others Ex Parte Pinochet Ugarte, United Kingdom, House of Lords, 24 March 1999, reproduced in International Legal Materials, vol. 38 (1999), pp. 581–663 (hereinafter Pinochet No. 3).
See Broomhall, International Justice, p. 113.
The ilc concluded in its 1996 Draft Code of Crimes Against the Peace and Security of Mankind that genocide, crimes against humanity and war crimes attract universal jurisdiction; See also Tadic Interlocutory Appeal Decision, par. 62 (“universal jurisdiction [is] nowadays acknowledged in respect of international crimes”); see also Prosecutor v. Ntuyahaga, Case No. ICTR-98-40-T, Decision on Prosecution Motion to Withdraw the Indictment (March 18, 1999).
E.g. Wedgwood, “An American View,” 93–107; Hafner et al., “A Response,” 108–123; Zwanenburg, “Peacekeepers under Fire?,” 124–143; Scheffer, “The Challenge,” 68.
Bassiouni, The Legislative History, 140.
Morris, “High Crimes,” 36 (2001).
UN Doc. S/RES/1422 of 12 July 2002, par. 4; see also S/RES/1487 of 12 June 2003. These resolutions will be further analyzed in Chapter 5.
For a review of the different positions regarding aggression, see McDougall, The Crime of Aggression, 318–319
E.g. Sadat, Transformation of International Law, 12; Kleffner, Complementarity, 246–247; Gilman, “Expanding Environmental Justice,” 447 (2011); Cassese, “Preliminary Reflections,” 151; Robinson, “Defining,” 52–56; Bothe, “War Crimes,” 400; Eden, “Criminalization of Apartheid”, 171–191 (2014); Bartels, “Legitimacy and icc Jurisdiction,” 165–166; Lawrence and Heller, “Environmental War Crime,” 61.
Rome Statute, Art. 27.
See Dworkin, Law’s Empire, 71.
See Chapter 5 on whether the SC could use the icc if there were no Article 13 (b) in the Rome Statute.
Dworkin, Law’s Empire, 71.
Ibid., at 70.
Kelsen, “Derogation”, 1438; See also Pauwelyn, Conflict of Norms, 199.
See See Galand, “Custom Identification” 403 (for an even broader definition of norm conflict).
Pauwelyn, Conflict of Norms, 162.
Al-Adsani v. United Kingdom, App. No. 35763/97, Judgment of 21 November 2001, par. 55.
Pauwelyn, Conflict of Norms, 272.
See ilc, Report of the Study Group of the ilc on Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law, UN Doc. A/CN.4/L.682 (Apr. 13, 2006) (hereinafter Report of the Study Group of the ilc on Fragmentation of International Law). The lex specialis may also be used to ‘interpret away’ a conflict, meaning that lex specialis supplements lex generalis, as in the Advisory Opinion on Threat or Use of Nuclear Weapons, icj Reports 1996, par. 34; Pauwelyn, Conflict of Norms, 410–411, 414–415. For lex specialis to apply as an accumulation of norm, one norm must explicitly delimit the scope of application of the other. Otherwise, an apparent conflict arises and then lex specialis can be used to avoid a genuine conflict or to resolve. Thus, it can be used as a rule of technique avoidance and as a rule of conflict resolution.
Tadic Interlocutory Appeal Decision, par. 28.