This book started with a fundamental question: Is the Rome Statute a universal criminal code? Neither the Statute nor the Court itself (at least in its early years) seem to make a clear distinction between cases that are triggered by the SC, States or by the Prosecutor – all cases are treated alike – as if the Statute applies to all since its entry into force. Is a situation triggered by the SC under Article 13 (b) bringing into force the whole Rome Statute or only the parts established under customary international law? It was indeed one of our purposes to address the disagreement over the interpretation and application of the Rome Statute in situations triggered under Article 13 (b). At the heart of this disagreement was the question of whether Article 13 (b) is premised upon a theory of universal jurisdiction arising from the nature of the crimes within the jurisdiction of the icc; or, whether it is a manifestation of the powers of the SC under Chapter vii. Depending on the approach taken, ‘universal jurisdiction’ or ‘Chapter vii’, the exercise of prescriptive and adjudicative jurisdiction by the icc over a non-party State came with a different normative content, hierarchy and interaction with other norms of international law. The ultimate goal of this book was to examine what a SC referral is, what the legal effects of a SC referral are and finally what a SC referral should be.
The concept which formed the basis of our inquiry is Article 13 (b). An Article 13 (b) referral symbolizes the icc’s exercise of prescriptive and adjudicative jurisdiction over the territory and nationals and of a State neither party to the Statute nor consenting to icc jurisdiction. Indeed, an Article 13 (b) referral does not only activate the icc’s jurisdiction to adjudicate crimes without territorial and active nationality nexus but also actualizes the prescription of the many Rome Statute’s provisions that are not established under customary international law (e.g. new crimes, irrelevance of official capacity).
It has been shown that while the ‘Chapter vii conception’ is inherently limited by the powers assigned to the SC according to the UN Charter, the sovereignty of States does not create an unresolvable normative conflict. The SC can, when acting under Chapter vii, refer a situation to a Court, even if the latter is not its subordinate organ. The SC can also prescribe new crimes under Article 41 of the UN Charter. But both of these enforcement measures are inherently limited by the UN Charter. In particular, a SC referral must be a case related reaction, with the aim of achieving concrete effects, and must be temporary. If the SC refers a general and abstract situation, thus going beyond the substantive limits pending on the SC exercise of quasi-legislative measures, the ICC should not adjudicate the Rome Statute’s norms that are beyond customary international law.
The ‘universal jurisdiction conception’ called for an aggiornamento of international law, otherwise it fails to resolve the conflict of norms that emerges when this sui generis jurisdiction is exercised over non-consenting States. Such aggiornamento has however not happened. The ‘universal jurisdiction conception’ of the treaty-based jurisdiction of the icc is exorbitant. Despite the claims that the Rome Statute is an act of the international community as a whole, and the crimes defined therein are grave enough not to be left within the exclusive jurisdiction of States, the exercise of universal prescriptive jurisdiction leads to a genuine and irresolvable conflict with the sovereignty of States not party to the Rome Statute. Furthermore, given that only crimes against customary international law are subject to universal adjudicative jurisdiction, the application of a Rome Statute that goes beyond what customary international law prescribes to territory and nationals of non-party States is also in conflict with the sovereignty of these States. Accordingly, we came to the result that a referral under Article 13 (b) should be understood through the ‘Chapter vii conception’.
Nonetheless, it was shown that some of Court’s decisions illustrate the ‘universal jurisdiction conception’. The non-application of the principle of legality with regards to situations retroactively referred under Article 13 (b) of the Rome Statute is troublesome in this regard. The Rome Statute only limits the icc temporal jurisdiction to conduct that occurred as of its entry into force, that is, 1 July 2002. Hence, a retroactive Article 13 (b) referral poses a problem with respect to individuals that are prosecuted before the icc for conduct that occurred while the Rome Statute was not formally applicable to such conduct. Yet, the Rome Statute’s drafters deeply intended to respect the principle of legality. This is evidenced by the details paid to define the crimes within the jurisdiction of the Court, the articles on the applicable law, on nullum crimen sine lege, and on non-retroactivity ratione personae. Nonetheless, 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.
The Rome Statute’s provisions, including Article 22 on nullum crimen sine lege and Article 24 on non-retroactivity ratione personae, do not comprehensively address this problem. Accordingly, it was posited that we must either adopt 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. The Court when it issued arrest warrants against suspects in the situation in Darfur and Libya for crimes committed prior to the respective referral but using a mode of responsibility that is acknowledged as not established under customary international law was inferring that the Statute was applicable to all since its entry into force. Thus, adopting the ‘universal jurisdiction conception’.
From a ‘Chapter vii conception’ perspective, it must be presumed that the retroactive jurisdiction of the Court with respect to this specific crime can be challenged (and declined) under the principle of legality. To exercise jurisdiction over such crimes ex post facto (even if the referral allows so) would indeed constitute a violation of the ban on retroactive application of criminal law, as recognized in all major human rights instruments. The icc must not only abide by its Statute but must also adhere to international law, including human rights law. There are various ways to interpret the principle of legality but it is the opinion of this author that the correct way to ensure respect for it is to apply the strictest standard. Thanks to the conscious undertaking to implant internationally recognized human rights law in the Statute (without the need to refer to the theory of implied powers) the right of the accused not to be held guilty of any penal offence on account of any act or omission which did not constitute a penal offence under applicable national or international law at the time when it was committed can be respected.
Similarly, respect of international law with regard to the immunity of State officials is another issue the drafters left to the Court to determine. Article 27 of the Rome Statute does not operate in a complete vacuum. The icc is not only obliged by its Statute but also has to exercise its jurisdiction in accordance with binding rules of international law. With regards to immunities, this is provided in Article 98 of the Rome Statute. It has been shown that it is possible to resolve the normative conflict which arise between the icc exercise of jurisdiction over a non-party State official and the immunity to which he/she is entitled under customary international law. To do so under the ‘universal jurisdiction conception’, Article 27 (2) needs to reflect customary international law. However, despite the icj Arrest Warrant Case`s obiter dictum, the customary status of the Rome Statute provision on immunity ratione personae is highly contested. Furthermore, the extension of the alleged customary exception to immunity to States enforcing an icc arrest warrant has been completely discarded by the international community of States, including States party to the Rome Statute.
The ‘Chapter vii conception’ considers that Article 27 (2) is a lex specialis for the States party to the Rome Statute; other States did not waive the right of their high-ranking officials to be immune from foreign criminal jurisdiction, including the icc. Such a right can however be suspended by the SC under Chapter vii. This is one of the effects of a referral under Article 13 (b) of the Rome Statute. The act of referring a situation under Chapter vii of the UN Charter to a Court governed by its own Statute certainly entails, pursuant to Article 25 UN Charter, that all UN Member States accept that the icc is conferred jurisdiction over any individual that has committed a crime within the context of the referred situation. Such jurisdiction extends to those who bear the greatest responsibility, even if some suspects are normally protected by the customary rules on the immunities of State officials from foreign criminal jurisdiction. Furthermore, the obligation to cooperate fully with the Court enshrined in the same (or a follow-up) resolution of the SC gives horizontal effects to the immunity’s removal. This implies that in a situation triggered by the SC not all arrest warrants from the Court will be enforceable without a waiver of immunity from the concerned State; only those from a State that has an obligation to cooperate fully with the Court will be.
The effects of a SC resolution adopted under Chapter vii are indeed extraordinary. This however does not mean that the SC can do whatever it wants with the icc. Incidentally, this book touched upon the legitimacy of the icc when it exercises jurisdiction under Article 13 (b). Legitimacy was understood mainly as ‘legal legitimacy’. The icc’s interpretation and application of its Statute in accordance with international law is certainly an important facet of its ‘legitimacy capital’.1 The legal legitimacy of the ‘universal jurisdiction conception’ was seriously called into question on account of the fact that the legal reasoning used to justify jurisdictional power over non-consenting States did not cohere with the existing system of legal norms. However, the ‘universal jurisdiction conception’ stood for a fundamental moral value, namely ending impunity for perpetrators of international crimes.
In this light, it is interesting to refer to the Independent International Commission on Kosovo which famously concluded that “the nato military intervention was illegal but legitimate.”2 Conversely, SC Resolution 748 imposing sanctions on Libya (regarding the Lockerbie case) gave rise to a different conundrum.3 While the icj deemed that SC Resolution 748 was prima facie legal,4 the (then) Organization of African Unity (oau) condemned the sanctions regime as ‘unjust’ and eventually its 53 Member States decided not to comply with the SC resolution. The oau notified the SC and declared that the sanctions regime “violate[s] Article 27 paragraph 3, Article 33 and Article 36 paragraph 3 of the United Nations Charter.”5 Likewise, the AU’s resolutions calling on its members not to comply with the icc’s arrest warrant for Al-Bashir were concerned both with the risk the arrest warrant posed to stability in the region and also with the applicability of Article 27 Rome Statute to non-party States. The ‘universal jurisdiction conception’ was rejected in this book as it was shown to provide States not party to the Rome Statute with the opportunity to seriously challenge the icc’s jurisdiction on the basis that it does not comply with international law and thus provide an incentive not to recognize its exercise of jurisdiction over genocide, crimes against humanity and war crimes.6 An abstract and general SC referral to the icc would raise similar doubts with regard to its accordance with the UN Charter and ultimately the Rome Statute. The exemption of certain nationals from the Court’s jurisdiction when acting under Article 13 (b) as well is not in conformity with the Rome Statute.
But, legality is not the only factor that affects legitimacy. The unfair selectivity of the SC also raises issues of legitimacy.7 The SC is a political organ, admittedly crippled by the veto powers of its permanent members, which can potentially use the icc as a forum to pursue national political interests and agendas. Moreover, we should bear in mind that three out of five permanent members are not party to the Rome Statute. More than a decade after the entry into force of the Statute some States still opine that Articles 13 (b) and 16 of the Statute prevent the icc from carrying out its judicial mandate in a completely independent manner free from political influence.8
Bearing in mind the various attempts made by the SC to modify the Rome Statute through referrals or deferrals or even resolutions intended for another purpose, the SC is certainly what causes the greatest legitimacy issues to the icc. It might furthermore be questioned whether the SC, thanks to its Chapter vii powers, governs the Court. While the icc needs the Chapter vii powers of the SC to exercise jurisdiction over a situation that strictly concerns the territory and nationals of a non-party State, it remains governed by its founding instrument, the Rome Statute. Thus, on the one hand, it is argued that, if Article 13 (b) did not exist, the SC could not refer a situation to the Court; on the other hand, however, the SC cannot refer a situation if it does not fit within the jurisdictional parameter of the Court. A SC referral challenging the limits of the UN Charter or the Rome Statute can indeed be subjected to incidental judicial review. Furthermore, an icc which would be entirely subservient to the SC would fail to be in accordance with the rule of law.
While the SC may contract out of international law when it takes ad hoc action intended to achieve a concrete effect under Chapter vii, the icc does not benefit of the same extraordinary powers. Its exercise of jurisdiction over the territory and nationals of a State neither party to the Rome Statute nor accepting its jurisdiction must remain within the limits of international law. The SC can stretch some of the limits that international law imposes on the icc’s exercise of jurisdiction. However, in doing so it must remain within the limits the UN Charter imposes on enforcement measures. In this sense, the icc is responsible for not usurping the exceptional regime the SC has created for its exercise of jurisdiction. Moreover, the norms that the SC did not or could not have contracted out of remain applicable to the icc’s exercise of jurisdiction under Article 13 (b). The fact that individuals who committed crimes in a territory of, and that are nationals of, a State neither party to the Rome Statute nor consenting to the icc’s jurisdiction are brought to justice may well be deemed a manifestation of the powers of the international community. However, it cannot be a manifestation of power unbound by law.
Shany, Effectiveness, 139; Whalan, Power, Legitimacy, and Effectiveness, 66.
Independent International Commission on Kosovo, The Kosovo Report, 4.
SC Res. 748 of 31 March 1992, UN Doc. S/RES/748; Question of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United Kingdom), International Court of Justice (icj), Provisional Measures, Order of April 14, ICJ Reports 1992, 3.
Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident of Lockerbie (Libyan Arab Jamahiriya v. United States of America), Provisional Measures, Order of 14 April1992, icj Reports 1992, par. 42.
See CM/Res.1566 (lxi) (23–27 January 1995); AHG/Dec.127 (xxxiv) (8–10 June 1998); See Tzanakopoulos, Disobeying, 187.
Ibid.
Cryer, Prosecuting International Crimes, 197–199.
See e.g. Statement Chad in Security Council, 7285th meeting, Security Council Working Methods, 23 October 2014, UN doc. S/PV.7285