3

Jurisdiction

The term ‘jurisdiction’ is used in several places in the Rome Statute to iden-
tify the scope of the Court’s authority. Article 5 is entitled ‘Crimes within
the jurisdiction of the Court’, and provides a list of punishable offences.
Article 11 indulges the lawyer’s fetish for Latin expressions. It is labelled
‘Jurisdiction ratione temporis’, although the plain English ‘temporal juris-
diction’ would have done just as well. Article 12 is entitled ‘Preconditions to
the exercise of jurisdiction’, but it actually sets out what are described as
‘territorial jurisdiction’ and ‘personal jurisdiction’. Article 19 requires the
Court to ‘satisfy itself that it has jurisdiction in any case brought before it’.
Pre-Trial Chamber I did this quite explicitly when it authorised the issuance
of the arrest warrant against Thomas Lubanga.1 The concept of jurisdiction
also arises with regard to national justice systems. Article 17 requires the
Court to defer to national prosecutions, unless the ‘State which has juris-
diction’ over the offence in question is unwilling or unable genuinely to
investigate and prosecute. In the same context, Article 18 speaks of the State
that ‘would normally exercise jurisdiction over the crimes concerned’.
States exercise jurisdiction in the field of criminal law on five bases: ter-
ritory, protection, nationality of offender (active personality), nationality
of victim (passive personality), and universality.2 Territory is the most
common, if for no other reason than that it is the only form of jurisdic-
tion 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 favouring the
forum delicti commissi, the place where the crime was committed.3 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
111
Ibid., para. 19.
112
United States v. Yunis, 681 F Supp 896 at 900–1 (D D C 1988). See Yoram Dinstein, ‘The
Universality Principle and War Crimes’, in Michael N. Schmitt and Leslie C. Green, eds.,
The Law of Armed Conflict: Into the Next Millennium, Newport, R I : Naval War College,
3
1998, pp. 17–37. SS Lotus (France v. Turkey), P C I J, 1927, Series A, No. 10, p. 70.
58
 jurisdiction 59

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.’4 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.5 Jurisdiction based on the 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 per-
sonality jurisdiction) rather than that of the offender (active personality
jurisdiction),6 which is well established.
The Nuremberg Tribunal 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.7
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, subse-
quent to 1991.8 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.9
Accordingly, its jurisdiction is both territorial and personal.
The basic difference with these precedents is that the International
Criminal Court has been created with the consent of those who are them-
selves be subject to its jurisdiction. They have agreed that crimes commit-
ted on their territory, or by their nationals, 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

114
(1935) 29 American Journal of International Law 638.
115
United States v. Noriega, 746 F Supp 1506 (S D Fla 1990). See Lynden Hall, ‘ “Territorial”
Jurisdiction and the Criminal Law’, (1972) Criminal Law Review 276.
116
SS Lotus (France v. Turkey), P C I J, 1927, Series A, No. 10, p. 70.
117
Agreement for the Prosecution and Punishment of Major War Criminals of the European
Axis, and Establishing the Charter of the International Military Tribunal (I M T ), Annex,
(1951) 82 U N TS 279, Art. 6.
118
Statute of the International Criminal Tribunal for the former Yugoslavia, U N Doc.
S/R E S /827 (1993), Annex.
119
Statute of the International Criminal Tribunal for Rwanda, U N Doc. S/R E S /955 (1994),
Annex.
60 an introduction to the international criminal court

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.10 This is what the Statute refers to as admissibility.
Universal jurisdiction – quasi delicta juris gentium – applies to a limited
number of crimes for which any State, even absent a personal or territor-
ial link with the offence, is entitled to try the offender. In customary inter-
national law, these crimes include piracy,11 the slave trade, and traffic in
children and women. Recognition of universal jurisdiction for these
crimes was largely predicated on the ground that they were often com-
mitted in terra nullius, where no State could exercise territorial jurisdic-
tion. More recently, some multilateral treaties have also recognised
universal jurisdiction for particular offences such as hijacking and other
threats to air travel,12 piracy,13 attacks upon diplomats,14 nuclear safety,15
terrorism,16 apartheid17 and torture.18 The application of universal juris-
diction is also widely recognised 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 unre-
solved but also still in some doubt.19 The ad hoc tribunals have adopted

110
Mohamed El Zeidy, ‘The Principle of Complementarity: A New Machinery to Implement
International Criminal Law’, (2002) 23 Michigan Journal of International Law 869.
111
United States v. Smith, 18 U S (5 Wheat.) 153 at 161–2 (1820).
112
Hague Convention for the Suppression of Unlawful Seizure of Aircraft, (1971) 860
U N TS 105; Montreal Convention for the Suppression of Unlawful Acts Against the
Safety of Civil Aviation, (1976) 974 U N TS 177.
113
Convention on the Law of the Sea, (1994) 1833 U N TS 3, Art. 105.
114
Convention on the Prevention and Punishment of Crimes Against Internationally
Protected Persons Including Diplomatic Agents, (1977) 1035 U N TS 167.
115
Convention on the Physical Protection of Nuclear Material of 1980, (1984) 1456
U N TS 101.
116
European Convention on the Suppression of Terrorism, (1978) 1137 U N TS
99; International Convention Against the Taking of Hostages, (1983) 1316 U N TS
205.
117
International Convention on the Suppression and Punishment of the Crime of
Apartheid, (1976) 1015 U N TS 243, Art. IV(b).
118
Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment, (1987) 1465 U N TS 85, Art. 10.
119
Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), Judgment,
15 February 2002. See Nicolaos Strapatsas, ‘Universal Jurisdiction and the International
 jurisdiction 61

Rules enabling them to transfer cases to any national jurisdiction pre-

pared to prosecute the case. Rule 11 bis of the Rules of Procedure and
Evidence of the International Criminal Tribunal for Rwanda authorises
referral to ‘any State that is willing to prosecute the accused in its own
courts’. The corresponding provision in the Rules of Procedure and
Evidence of the International Criminal Tribunal for the former
Yugoslavia uses the phrase ‘willing and adequately prepared to accept
such a case’. Earlier versions of Rule 11 bis only allowed referral to the
State where the crime was committed, or where the accused had been
arrested. Implicitly, at least, the judges of the ad hoc tribunals, who are the
authors of the Rules, have confirmed the validity of universal jurisdiction
for genocide, crimes against humanity and war crimes, although they
have yet to authorise a transfer on this basis.20
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.21 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.22 But

Criminal Court’, (2002) 29 Manitoba Law Journal 1; Claus Kress, ‘Universal Jurisdiction
over International Crimes and the Institut de Droit International’, (2006) 4 Journal of
International Criminal Justice 1; Mohamed El Zeidy, ‘Universal Jurisdiction in Absentia: Is
It a Legal Valid Option for Repressing Heinous Crimes?’, (2003) 37 International Lawyer
835; Antonio Cassese, ‘When May Senior State Officials Be Tried for International
Crimes?: Some Comments on the Congo v. Belgium Case’, (2002) 13 European Journal of
International Law 853.
120
The only attempt to date has been unsuccessful: Bagaragaza (I C T R-05-86-A R 11bis),
Decision on Rule 11 bis Appeal, 30 August 2006. The International Criminal Tribunal for
the former Yugoslavia has referred six cases involving nine accused to Bosnia and
Herzegovina and one case involving two accused to Croatia. On 17 November 2006, the
Tribunal for the first time referred a case back to Serbia. For more details, see Mohamed
Elewa Badar and Nora Karsten, ‘Current Developments at the International Criminal
Tribunals’, (2007) 7 International Criminal Law Review (forthcoming).
121
Daniel D. Ntanda Nsereko, ‘The International Criminal Court: Jurisdictional and Related
Issues’, (1999) 10 Criminal Law Forum 87 at 101.
122
E.g., U N Doc. A/C O N F.183/S R .3, para. 21 (Czech Republic), para. 42 (Latvia), para. 76
(Costa Rica); U N Doc. A/C O N F.183/S R .4, para. 12 (Albania), paras. 20–1 (Germany);
U N Doc. A/C O N F.183/S R .6, para. 4 (Belgium), para. 69 (Luxembourg); U N Doc.
A/C O N F.183/S R .8, para. 18 (Bosnia and Herzegovina), para. 62 (Ecuador).
62 an introduction to the international criminal court

such an approach met with two objections.23 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 quarrelled with the legality of an international court that
could exercise universal jurisdiction.24 The United States in particular
argued that there was no rationale in law for such a court, and insisted
that the only legal basis would be active personal jurisdiction, that is, the
court would only be entitled to try nationals of a State Party. Thereby, a
State could shield its nationals from the jurisdiction of the Court, even
for crimes committed abroad, by simply withholding ratification. The
United States threatened that, if universal jurisdiction were to be incor-
porated in the Statute, it would have to oppose the Court actively.
Indeed, the United States remains extremely unhappy with the solu-
tion reached at Rome whereby the Court may exercise jurisdiction over
crimes committed within the territory of a State Party or by a national of
a State Party.25 As recently as March 2005, it declared in the Security
Council: ‘[T]he United States continues to fundamentally object to the
view that the I C C should be able to exercise jurisdiction over the nation-
als, including government officials, of States not party to the Rome
Statute.’26 The view that this lies at the core of United States objections is,
however, an exaggeration. If the United States had agreed with the end
product adopted on 17 July 1998, Washington would have had little real
problem with the prospect of its own nationals being subject to its juris-
diction. The other international tribunals, for the former Yugoslavia,
Rwanda and Sierra Leone, all of which are supported by the United
States, can exercise jurisdiction over nationals of the United States.
The compromise in Article 12, by which the Court has jurisdiction
over nationals of States Parties and over crimes committed on their terri-
tory, was ruthlessly criticised by many at the time who said it would doom
the Court to impotence.27 Only angelic States – the Scandinavians,
123
Morten Bergsmo, ‘The Jurisdictional Regime of the International Criminal Court (Part
II, Articles 11–19)’, (1998) 6 European Journal of Crime, Criminal Law and Criminal
Justice 29; Ruth B. Philips, ‘The International Criminal Court Statute: Jurisdiction and
Admissibility’, (1999) 10 Criminal Law Forum 61.
124
U N Doc. A/C O N F.183/S R .9, para. 28 (United States), para. 37 (China).
125
David Scheffer, ‘The United States and the International Criminal Court’, (1999) 93
26
American Journal of International Law 12. U N Doc. S/P V.5158, p. 3.
127
For a discussion by one of the most vocal advocates of universal jurisdiction, Hans-Peter
Kaul, who is now a judge of the Court, see Hans-Peter Kaul, ‘Preconditions to the Exercise of
 jurisdiction 63

Canada, Ireland, the Netherlands, and so on – would join the Court on

such a basis, it was argued. As for States facing war and internal strife,
they would cautiously remain outside the Court and thereby protect
themselves from its reach, at least with regard to crimes committed on
their territories. Others took the more moderate view that Article 12 rep-
resented an unfortunate but inevitable compromise. For Professor
Sharon Williams, the provision ‘[i]s far from perfect but was all that was
possible at the time’.28
As the pace of ratification accelerated in 2000 and 2001, there was an
astonishing and unforeseen development. The very States expected to
steer clear of the Court because of their obvious vulnerability to prosecu-
tion started to produce instruments of ratification at United Nations
headquarters. The first was Fiji, which had known severe civil conflict in
the late 1990s. It was followed by Sierra Leone, where civil war had raged
from 1991 until the Lomé Peace Agreement of 1999, only to heat up once
again in 2000. By the time the magic number of sixty ratifications was
reached, several other countries that had known violent conflict and
atrocity in recent years had joined the Court: Cambodia, Macedonia, the
Democratic Republic of Congo, Bosnia and Herzegovina, Yugoslavia,
and Croatia. Colombia, Afghanistan and Burundi soon followed. Several
Arab States are now said to be on the verge of accession or ratification.
These ratifications were totally unexpected, particularly by those who
insisted that the Court should be premised on universal jurisdiction
because conflict-afflicted States, primarily in the South, would never join.
Obviously, they disprove the arguments that were advanced at Rome by
those who were critical of the compromise on jurisdiction in Article 12.
They suggest that States are ratifying the Statute precisely because they
view the Court as a promising and realistic mechanism capable of
addressing civil conflict, human rights abuses and war. This is entirely
consistent, of course, with the logic of those who have argued over the
years that international justice contributes to peace and security.
Indeed, we might ask in hindsight whether sixty ratifications would
have been achieved so quickly had the broad universal jurisdiction

Jurisdiction’, in Antonio Cassese, Paola Gaeta and John R. W. D. Jones, eds., The Rome
Statute of the International Criminal Court: A Commentary, vol. I, Oxford: Oxford University
Press, 2002, pp. 583–616. Also: Marlies Glasius, The International Criminal Court, A Global
Civil Society Achievement, London and New York: Routledge, 2006, pp. 61–76.
128
Sharon A. Williams. ‘Article 12 (Preconditions to the Exercise of Jurisdiction)’, in Otto
Triffterer, ed., Commentary on the Rome Statute of the International Criminal Court:
Observers’ Notes, Article by Article, Baden-Baden: Nomos, 1999, pp. 329–41.
64 an introduction to the international criminal court

proposal actually been adopted. The problem with the universal juris-
diction approach is that it leaves little incentive for States to join the
Court. One way or another, whether or not States ratify the Statute, if
the Court is based on universal jurisdiction, crimes committed on their
territory are subject to its jurisdiction in any case. On the other hand,
under the current regime as set out in Article 12, States must ratify the
Statute if they wish to send a message of deterrence that war crimes,
crimes against humanity and genocide will not go unpunished on their
territories. This they seem to be doing, in ever-increasing numbers. In
other words, far from dooming the Court to inactivity, the limited juris-
dictional scheme of Article 12 would appear to have contributed to the
rate of ratification.
This debate about jurisdiction of the Court was labelled the ‘State
consent’ issue during the drafting process. The International Law
Commission had adopted an approach to jurisdiction whereby States
would have to ‘opt in’ to jurisdiction on specific crimes. Jurisdiction was
not to be conferred automatically simply because a State ratified the
future Statute.29 This was not unlike the Statute of the International
Court of Justice, whereby States belong to the Court and are parties to the
Statute but must make additional declarations in order to accept jurisdic-
tion.30 The International Law Commission draft allowed for one excep-
tion, in the case of genocide, at least for parties to the 1948 Genocide
Convention. It was predicated on the fact that the 1948 Genocide
Convention specifically contemplated an international criminal court
with jurisdiction over the crime.31
As debate unfolded in the Ad Hoc Committee, in 1995, and later in the
Preparatory Committee, there was a trend towards enlarging the scope of
the ‘inherent jurisdiction’ of the Court from genocide to crimes against
humanity and war crimes. Accompanying this development, and con-
tributing to it, was a tendency to move away from including ‘treaty
crimes’, such as terrorism and drug trafficking, in the subject-matter
jurisdiction of the court. Thus, as the scope of the crimes narrowed to
those upon which there was genuine consensus as to their severity and
significance, the argument that the court should have automatic jurisdic-
tion over all crimes within its subject-matter jurisdiction became more
129
Report of the International Law Commission on the Work of Its Forty-Sixth Session, 2
May–22 July 1994, U N Doc. A/49/10, Art. 22(1).
130
Statute of the International Court of Justice, Art. 36(2)–(5).
131
Convention on the Prevention and Punishment of the Crime of Genocide, (1951) 78
U N TS 277, Art. VI.
 jurisdiction 65

compelling.32 Article 12, entitled ‘Preconditions to the exercise of juris-

diction’, was the result of this difficult debate.33
1. A State which becomes a Party to this Statute thereby accepts the juris-
diction of the Court with respect to the crimes referred to in article 5.
2. 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 air-
craft, the State of registration of that vessel or aircraft;
(b) The State of which the person accused of the crime is a national.
3. If the acceptance of a State which is not a Party to this Statute is required
under paragraph 2, that State may, by declaration lodged with the
Registrar, accept the exercise of jurisdiction by the Court with respect to
the crime in question. The accepting State shall cooperate with the
Court without any delay or exception in accordance with Part 9.

Issues of jurisdiction take several forms, each of which must be consid-

ered separately. They are temporal (ratione temporis) jurisdiction, per-
sonal (ratione personae) jurisdiction, territorial (or ratione loci)
jurisdiction, and subject-matter (ratione materiae) jurisdiction.

Temporal (ratione temporis) jurisdiction

The Court is a prospective institution in that it cannot exercise jurisdic-
tion over crimes committed prior to the entry into force of the Statute. In
this respect, it differs from all of its predecessors. Previous international
criminal tribunals were established primarily to deal with atrocities
committed prior to their creation, although they have also been given a
prospective jurisdiction.34 Article 11(1) of the Rome Statute declares

132
Elizabeth Wilmshurst, ‘Jurisdiction of the Court’, in Lee, The International Criminal
Court, pp. 127–41.
133
Hans-Peter Kaul, ‘Special Note: The Struggle for the International Criminal Court’s
Jurisdiction’, (1998) 6 European Journal of Crime, Criminal Law and Criminal Justice 48.
See also Vera Gowlland-Debbas, ‘The Relationship Between the Security Council and the
Projected International Criminal Court’, (1998) 3 Journal of Armed Conflict Law 97; Pietro
Gargiulo, ‘The Controversial Relationship Between the International Criminal Court and
the Security Council’, in Flavia Lattanzi and William A. Schabas, eds., Essays on the Rome
Statute of the International Criminal Court, Rome: Editrice il Sirente, 2000, pp. 67–104.
134
Both the Nuremberg and Tokyo tribunals were purely retroactive. The International
Criminal Tribunal for the former Yugoslavia is retroactive, to a date more than two years
66 an introduction to the international criminal court

that ‘[t]he Court has jurisdiction only with respect to crimes committed
after the entry into force of this Statute’, that is, beginning 1 July 2002.
The Statute seems to return to the 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. At the Rome Conference, ‘temporal jurisdiction and non-
retroactivity’ were discussed under a single agenda item, and at one
point during the drafting process the chair of the Working Group
on General Principles proposed that the concepts be merged in a single
provision.35
Ruling on whether it had jurisdiction in the Lubanga case, Pre-Trial
Chamber I addressed the question of the temporal application of the
Statute:
Considering that ‘[t]he Statute entered into force for the [Democratic
Republic of Congo] on 1 July 2002, in conformity with article 126(1) of the
Statute, the [Democratic Republic of Congo] having ratified the Statute on
11 April 2002’, the second condition would be met pursuant to article 11 of
the Statute if the crimes underlying the case against Mr Thomas Lubanga
Dyilo were committed after 1 July 2002. As the case against Mr Thomas
Lubanga Dyilo referred to crimes committed between July 2002 and
December 2003, the Chamber considers that the second condition has also
been met.36

The Security Council resolution referring the Darfur situation referred

explicitly to ‘the situation in Darfur since 1 July 2002’.37 Presumably, the
Security Council was simply confirming that he could not refer a situa-
tion prior to that date. But perhaps, by the precise reference to 1 July
2002, some will argue that the Security Council was reserving its author-
ity to refer a situation prior to the entry into force of the Statute, on the
premise that its authority under the Charter of the United Nations
trumps any provision in the Rome Statute,

Footnote 34 (cont.)
prior to its creation, but it was also prospective. The International Criminal Tribunal for
Rwanda is essentially retroactive, although its temporal jurisdiction continued for a few
weeks after establishment by the Security Council. The Special Court for Sierra Leone is
also retroactive, to a date more than a decade prior to its creation, but it too is also
prospective.
135
U N Doc. A/C O N F.183/C.1/S R .8, para. 74; U N Doc. A/C O N F.183/C.1/S R .35, para.
28; U N Doc. A/C O N F.183/C.1/S R .39, para. 4; Per Saland, ‘International Criminal Law
Principles’, in Lee, The International Criminal Court, pp. 189–216 at p. 197.
136
Lubanga (I C C -01/04–01/06-8), Decision on the Prosecutor’s Application for a Warrant
137
of Arrest, 10 February 2006, para. 26. U N Doc. S/R E S /1693 (2005), para. 1.
 jurisdiction 67

Reporting on the 1,732 communications received as of early 2006, the

Prosecutor said that 5 per cent of them concerned events prior to 1 July
2002, and were therefore outside the temporal jurisdiction of the Court.38
Explaining why he was declining to proceed with communications con-
cerning international crimes committed in Venezuela, the Prosecutor
stated:
A considerable number of the allegations referred to incidents that are
alleged to have taken place prior to 1 July 2002, in particular in connection
with incidents occurring in the context of the short-lived coup in April
2002. These events occurred prior to the temporal jurisdiction of the Court
and cannot be considered as the basis for any investigation under the
Statute.39

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.40 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. This does not exclude it acting with respect to crimes committed in
Colombia during that period, but the Court must then establish its juris-
diction on some other basis.
There is an exception to the general rule concerning the temporal
application of the Statute, because it is possible for a State to make an ad
hoc declaration recognising the Court’s jurisdiction over specific crimes,
even if the State is not a party to the Statute.41 Such declarations, formu-
lated in accordance with Article 12(3) of the Statute, would appear to be
retroactive by their very nature. On 27 February 2004, Uganda made such
a statement, which it labelled ‘Declaration on Temporal Jurisdiction’.
Uganda accepted the exercise of the Court’s jurisdiction for crimes com-
mitted following the entry into force of the Statute on 1 July 2002. The
legality of the declaration appears to have been assumed by Pre-Trial

138
‘Update on Communications Received by the Office of the Prosecutor of the I C C ’,
undated (but issued in February 2006), p. 2. See also ‘Communications Received by the
Office of the Prosecutor of the I C C ’, 16 July 2003, p. 1.
139
‘Letter of Prosecutor dated 9 February 2006’ (Venezuela), p. 3.
140
Rome Statute of the International Criminal Court, U N Doc. A/C O N F.183/9 (here-
41
inafter ‘Rome Statute’), Art. 11(2). Ibid., Art. 12(3).
68 an introduction to the international criminal court

Chamber III, which took note of it when it confirmed the arrest warrant
against Joseph Kony.42
The Statute has been criticised 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 recognise 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 commit-
ted prior to entry into force of the Rome Statute may and should be pun-
ished by national courts. Where the State of nationality or the territorial
State refuse to act, an increasing number of States now provide for uni-
versal jurisdiction over such offences.43 Other options include the estab-
lishment 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,44 the latter acting pursuant to a
Security Council resolution.45
The issue of jurisdiction ratione temporis should not be confused with
the question of retroactive crimes. International human rights law con-
siders 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 norm forbids prosecution of crimes that

142
Situation in Uganda (I C C -02/04-53), Warrant of Arrest for Joseph Kony Issued on 8 July
2005 as Amended on 27 September 2005, para. 32. Also: Situation in Uganda (I C C -
02/04-54), Warrant of Arrest for Vincent Otti, 8 July 2005, para. 32; Situation in Uganda
(I C C -02/04-55), Warrant of Arrest for Raska Lukwiya, 8 July 2005, para. 20; Situation in
Uganda (I C C -02/04-56), Warrant of Arrest for Okot Odhiambo, 8 July 2005, para. 22;
Situation in Uganda (I C C -02/04-57), Warrant of Arrest for Dominic Ongwen, 8 July
2005, para. 20.
143
On this subject generally, see Naomi Roht-Arriaza, ed., Impunity and Human Rights in
International Law and Practice, New York and London: Oxford University Press, 1995;
Steven R. Ratner and Jason S. Abrams, Accountability for Human Rights Atrocities in
International Law: Beyond the Nuremberg Legacy, Oxford: Clarendon Press, 1997.
144
Agreement between the United Nations and the Government of Sierra Leone on the
Establishment of a Special Court for Sierra Leone, Freetown, 16 January 2002. See
Micaela Frulli, ‘The Special Court for Sierra Leone: Some Preliminary Comments’,
(2000) 11 European Journal of International Law 857; Robert Cryer, ‘A “Special Court” for
Sierra Leone?’, (2001) 50 International and Comparative Law Quarterly 435; Avril
McDonald, ‘Sierra Leone’s Shoestring Special Court’, (2002) 84 International Review of
the Red Cross 121; and S. Beresford and A. S. Muller, ‘The Special Court for Sierra Leone:
An Initial Comment’, (2001) 14 Leiden Journal of International Law 635.
145
U N Doc. S/R E S /1315 (2000).
 jurisdiction 69

were not recognised as such at the time they were committed. There are,
of course, varying interpretations as to the scope of the principle.46 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 indi-
rectly, noting that nullum crimen sine lege was a principle of justice, and
that it would be unjust to let the Nazi leaders go unpunished.47 Since
then, similar pronouncements can be found in the Eichmann case of 1961
and even recently in the Erdemović judgment of the International
Criminal Tribunal for the former Yugoslavia.48
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.49 But,
where a State has made an ad hoc declaration recognising 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

146
See Aly Mokhtar, ‘Nullum Crimen, Nulla Poena Sine Lege: Aspects and Prospects’, (2005)
26 Statute Law Review 41.
147
Hans Kelsen, ‘Will the Judgment in the Nuremberg Trial Constitute a Precedent in
International Law?’, (1947) 1 International Law Quarterly 153 at 165.
148
Erdemović (I T-96-22-T), Sentencing Judgment, 29 November 1996, (1998) 108 I L R 180,
para. 35.
149
That the Court only operates prospectively would seem to resolve problems concerning
retroactive prosecution, but this has not stopped defence lawyers from raising an imagi-
native, if patently flawed, argument. During the Lubanga confirmation hearing, defence
counsel claimed ‘that the mere fact that the offence is listed in the Rome Statute does not
in itself satisfy the principle of legality if the requirements of specificity, certainty, and
accessibility and foreseeability have not been complied with’. Lubanga (I C C -
01/04–01/06), Transcript, 26 November 2006. The objection was dismissed by Pre-Trial
Chamber I: Lubanga (I C C -01/04–01/06), Décision sur la confirmation des charges, 29
January 2007, paras. 301–3.
70 an introduction to the international criminal court

the Security Council gives jurisdiction to the Court,50 just as it has been
raised by defendants in The Hague and Arusha.51 But the argument,
though not totally frivolous, has never really succeeded before interna-
tional 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.52 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.
There were unsuccessful proposals to add the words ‘unless the crimes con-
tinue after this date’ so as to ensure the punishability of continuous
crimes.53 Such a circumstance might present itself, for example, in the case
of an ‘enforced disappearance’, which is a crime against humanity punish-
able 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 punish-
able under the Statute. Verbs such as ‘committed’, ‘occurred’, ‘com-
menced’ 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 ‘unresolvable
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.54 The

150
Rome Statute, Art. 13(b).
151
Tadić (I T-94-1-A R 72), Decision on the Defence Motion for Interlocutory Appeal on
Jurisdiction, 2 October 1995, (1997) 105 I L R 453.
152
SW v. United Kingdom, Series A, No. 335-B, 22 November 1995, paras. 35–6. See also CR
v. United Kingdom, Series A, No. 335-B, 22 November 1995, paras. 33–4.
153
U N Doc. A/C O N F.183/C1/S R .9, para. 73.
154
Per Saland, ‘International Criminal Law Principles’, in Lee, The International Criminal
Court, pp. 189–216 at pp. 196–7; Raul Pangalangan, ‘Article 24’, in Otto Triffterer, ed.,
Commentary on the Rome Statute of the International Criminal Court: Observers’ Notes,
Article by Article, Baden-Baden: Nomos, 1999, pp. 467–73 at pp. 471–2.
 jurisdiction 71

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.’55 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.

Personal (ratione personae) jurisdiction

The International Criminal Court exercises jurisdiction over nationals of
a State Party who are accused of a crime, in accordance with Article
12(2)(b), regardless of where the acts are perpetrated. The Court can also
prosecute nationals of non-party States that accept its jurisdiction on an
ad hoc basis by virtue of a declaration of the State of nationality,56 or pur-
suant to a decision of the Security Council. Creating jurisdiction based
on the nationality of the offender is the least controversial form of juris-
diction 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.57
The prosecutions to date appear to be based solely on territory, and not
nationality. In the prosecutions concerning Uganda and the Democratic
Republic of Congo, there are no allegations that the accused persons are
nationals of a State Party. Nor did the Security Council give the Court
jurisdiction over the acts of Sudanese nationals committed outside of
Sudan, even where these might be germane to the conflict in Darfur. It
adopted such an approach when the International Criminal Tribunal
for Rwanda was established, authorising the international tribunal to

155
U N Doc. A/C O N F.183/C.1/L.65/Rev.1, p. 2; Report of the Drafting Committee, U N
Doc. A/C O N F.183/13(Vol. III), p. 150, n. 6. There was no footnote in the final version
adopted by the Conference: U N Doc. A/C O N F.183/C.1/L.76/Add.3, pp. 1–2.
156
Rome Statute, Art. 12(3); and Rules of Procedure and Evidence, Doc. I C C -A S P /1/3,
pp. 10–107, Rule 44.
157
Nottebohm Case (Second Phase), Judgment of 6 April 1955, [1955] I C J Reports 24;
Proposed Amendments to the Naturalization Provisions of the Constitution of Costa Rica,
Advisory Opinion O C -4/84, 19 January 1984, Series A, No. 4, para. 35.
72 an introduction to the international criminal court

prosecute crimes on Rwandan territory and crimes committed by

Rwandan nationals in neighbouring States.58
The Prosecutor has examined the possibility of cases based on nation-
ality rather than territory, but has rejected them. In his first report on
communications submitted in accordance with Article 15, the Prosecutor
noted that there had been several allegations of acts perpetrated by
nationals of coalition forces during the invasion of Iraq, in 2003.59 He
pursued this in more depth in his second report, in February 2006, and
especially in the statement concerning Iraq-related prosecutions. There
he indicated that inquiries had been made concerning nationals of the
United Kingdom with respect to acts perpetrated on the territory of Iraq,
a non-party State.60
An exception to the general principle of jurisdiction over nationals is
explicitly set out in the Rome Statute with respect to persons under the age
of eighteen at the time of the offence.61 Much energy was expended on the
issue in tedious debates during the sessions of the Preparatory Committee
and the Diplomatic Conference.62 The Working Group on General
Principles agreed to impose a ‘jurisdictional solution’ and to provide, in
Article 26, that the Court would simply be unable to prosecute persons
who were under eighteen at the time of the commission of the crime.63
The International Criminal Tribunal for the former Yugoslavia has noted
that Article 26 is purely jurisdictional in nature, rejecting as ‘completely
unfounded in law’ the proposition that there was no criminal responsibil-
ity for crimes committed by persons under the age of eighteen under
either conventional or customary international law.64
Less explicit, but certainly just as imperative, is the exclusion of juris-
diction over persons benefiting from forms of immunity. The issue is
much misunderstood, due in part to the fact that there are two relevant
provisions in different parts of the Statute, Articles 27 and 98, and the fact
that the bilateral agreements negotiated by the United States are often said
to grant a form of immunity. These agreements do not in fact create

158
U N Doc. S/R E S /955 (1994).
159
‘Communications Received by the Office of the Prosecutor of the IC C ’, 16 July 2003, p. 2.
160
‘Letter of Prosecutor dated 9 February 2006’ (Iraq).
161
Rome Statute, Art. 26.
162
Per Saland, ‘International Criminal Law Principles’, in Lee, The International Criminal
Court, pp. 189–216 at pp. 200–2.
163
U N Doc. A/C O N F.183/C.1/WG G P /L.1, p. 2. For the debate in the Committee of the
Whole of the Rome Conference, see A/C O N F.183/C.1/S R .2, paras. 3–44.
164
Orić (I T-03-68-T), Judgment, 30 June 2006, para. 400.
 jurisdiction 73

immunity for nationals of the United States; they simply purport to

relieve a State Party from an obligation to arrest and transfer individuals
subject to a request from the Court. If Albania, for example, receives a
request from the Court to arrest and transfer an American national, it may
invoke its Article 98(2) agreement with the United States and decline to
comply without necessarily violating its duties under the Rome Statute.
Article 98(1) applies to ‘obligations under international law with
respect to the State or diplomatic immunity of a person or property of a
third State’. It does not create immunity, but it acknowledges that obliga-
tions relating to diplomatic immunity, resulting either from treaty law or
customary law, may create a potential conflict in the event of a request
from the Court, and provides a solution that amounts to deference for the
existing immunity. 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, that is, a non-party State. Nothing prevents
the State Party from doing this if it so wishes, and, once a head of State has
been taken into the actual custody of the Court, he or she would be
treated like any other defendant.
The Court itself has extended the scope of Article 98(1) so as to address
the issue of personnel of the United Nations. This is in the spirit of its
relationship with the United Nations, but it is also a tacit recognition of
the supremacy of the Charter of the United Nations, which itself calls for
the recognition of privileges and immunities to those working for the
organisation, over the Rome Statute. The Relationship Agreement with
the United Nations, which was negotiated between the Court and the
United Nations pursuant to Article 2 of the Rome Statute, contains the
following provision:
Article 19. Rules concerning United Nations privileges and immunities
If the Court seeks to exercise its jurisdiction over a person who is alleged to
be criminally responsible for a crime within the jurisdiction of the Court
and if, in the circumstances, such person enjoys, according to the
Convention on the Privileges and Immunities of the United Nations and
the relevant rules of international law, any privileges and immunities as are
necessary for the independent exercise of his or her work for the United
74 an introduction to the international criminal court

Nations, the United Nations undertakes to cooperate fully with the Court
and to take all necessary measures to allow the Court to exercise its juris-
diction, in particular by waiving any such privileges and immunities in
accordance with the Convention on the Privileges and Immunities of the
United Nations and the relevant rules of international law.

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 provi-
sion – Article 98(2) – was intended to ensure that a rather common class
of treaties known as ‘status of forces agreements’ (or S O FAs) would not
be undermined or neutralised by the Statute. S O FAs 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.
Article 27(2) of the Rome Statute also refers to immunity, but the
context is of a substantive rather than procedural nature. According to
Article 27(2), ‘[i]mmunities or special procedural rules which may attach
to the official capacity of a person, whether under national or interna-
tional law, shall not bar the Court from exercising its jurisdiction over
such a person’. Despite initial appearances,65 there is no conflict between
Article 27(2) and Article 98(1). The effect of Article 27(2) is to foreclose
States Parties from invoking immunities before the Court, and to make a
defence of immunity unavailable to an accused national of a State Party.
It is probably going too far to suggest that Article 27(2) applies to nation-
als of non-party states. Any immunities that they may have as a result of
customary or treaty law cannot be removed simply because a group of
States have decided, by treaty, that such immunities cannot be invoked
before an institution of their own creation.
Finally, the Court cannot exercise jurisdiction over individuals where
the Security Council has decided to exclude them from the Court’s juris-
diction. It has, in fact, done this on two occasions. Resolution 1497,

165
According to Professor Bassiouni, who chaired the Drafting Committee at the Rome
Conference, Arts. 27(2) and 98 should have been merged into a single provision in order
to avoid confusion: M. Cherif Bassiouni, ‘Negotiating the Treaty of Rome on the
Establishment of an International Criminal Court’, (1999) 32 Cornell International Law
Journal 443 at 454.
 jurisdiction 75

adopted in August 2003, declares ‘that current or former officials or per-

sonnel from a contributing State, which is not a party to the Rome Statute
of the International Criminal Court, shall be subject to the exclusive
jurisdiction of that contributing State for all alleged acts or omissions
arising out of or related to the Multinational Force or United Nations sta-
bilization force in Liberia, unless such exclusive jurisdiction has been
expressly waived by that contributing State’.66 There were three absten-
tions when the resolution was adopted, by Mexico, Germany and France.
The German and French representatives said that the paragraph in ques-
tion was incompatible with international law.67
Along much the same lines, Resolution 1693, adopted in March 2005,
which refers the situation in Darfur to the Court, states that ‘nationals,
current or former officials or personnel from a contributing State outside
Sudan which is not a party to the Rome Statute of the International
Criminal Court shall be subject to the exclusive jurisdiction of that con-
tributing State for all alleged acts or omissions arising out of or related to
operations in Sudan established or authorized by the Council or the
African Union, unless such exclusive jurisdiction has been expressly
waived by that contributing State’.

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 jurisdic-
tion over crimes committed on the territory of States that accept its juris-
diction on an ad hoc basis, in accordance with Article 12(3), as well as
where jurisdiction is conferred by the Security Council, pursuant to
Article 13(b) but also acting in accordance with Chapter VII of the
Charter of the United Nations. 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

166
U N Doc. S/R E S /1497 (2003), para. 7. See Salvatore Zappalà, ‘Are Some Peacekeepers
Better Than Others? U N Security Council Resolution 1497 (2003) and the I C C ’, (2003)
1 Journal of International Criminal Justice 671.
167
U N Doc. S/P V.4803, pp. 4 and 7.
76 an introduction to the international criminal court

State. The Statute also considers the concept of territory to include crimes
committed on board vessels or aircraft registered in the State Party.68 This
is a rather common and widely accepted extension of the concept of terri-
torial jurisdiction. Logically, territorial jurisdiction should extend to the
airspace 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 gen-
erally 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 jurisdic-
tion 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,69 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 (denial of quarter),
which is a crime in and of itself even if nobody acts upon the order,70
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 ter-
ritory. The case becomes somewhat clearer with respect to accusations of
incitement and abetting. Nevertheless, given the silence of the Statute
about effects jurisdiction, there are compelling arguments in favour of a
strict construction of Article 12 and the exclusion of such a concept.
To date, no apparent problems concerning territorial jurisdiction have
arisen. In approving the arrest warrants for the five Lord’s Resistance
Army leaders in Uganda and for Thomas Lubanga in Congo, the Pre-Trial
Chamber made the purely perfunctory observation that the crimes were
alleged to have been committed on the territory of the referring State.
Security Council Resolution 1593 declares that the Court is to prosecute
crimes committed ‘in Darfur’.
But it is not improbable that the judges of the International Criminal
Court find themselves determining where international borders are
placed, and making pronouncements about title to specific territory. It is

168 69
Rome Statute, Art. 12(2)(a). Ibid., Arts. 6 and 25(d).
170
Ibid., Art. 8(2)(b)(xii) and (e)(x).
 jurisdiction 77

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. Two examples 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 jurisdic-
tion over the ‘territory’ of an independent Palestine, of which most if not
all of the actual boundaries might well be contested. Because Israel is not
a State Party to the Rome Statute, it has obviously not conferred jurisdic-
tion on the Court over its territory generally. Although the matter is
under study by Israeli officials and politicians, it seems unlikely that Israel
will ratify the Rome Statute in the foreseeable future. At present, the only
neighbouring State that has ratified the Rome Statute is Jordan. Thus, the
Court might find itself adjudicating where the borders of an independent
Palestine actually lie.
Even before Palestinian independence, the question could arise in
another way. The International Criminal Court can exercise jurisdiction
over the territory of Jordan, but not that of Israel. Israel has occupied the
West Bank since 1967. Prior to that date, Jordan exercised sovereignty over
the West Bank. Two decades after the occupation by Israel, in 1988, Jordan
declared that it had abandoned its claims to sovereignty over the West
Bank. It would be worth scrutinising the actions of Jordan at the time it
renounced its claims, so as to verify if these were done properly and if they
are legally effective. If its acts of renunciation were not adequate, then
there is an arguable case that the West Bank is still technically part of
Jordanian territory with the result that the International Criminal Court
may exercise jurisdiction over acts and omissions perpetrated on that ter-
ritory subsequent to entry into force of the Rome Statute. Of course, even
if this argument could be sustained, it would still be necessary to convince
a State Party or the Prosecutor of the Court to trigger a case.
At the time of ratification a few States 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 made a harmless but reassuring state-
ment to the effect that the Statute applies not only to its European terri-
tory but also to the Netherlands Antilles and Aruba. More troublesome
was Denmark’s declaration that it does not intend the Statute to apply to
the Faroe Islands and Greenland.71 While this was no doubt motivated by

171
See also the declaration by New Zealand concerning Tokelau.
78 an introduction to the international criminal court

admirable sentiments of respect for local autonomy, it had 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 anal-
ogous cases before the European Court of Human Rights72 and rule the
Danish declaration to be an illegal reservation without any effect, in
accordance with Article 120 of the Statute, thereby recognising juris-
diction over the disputed territories. The special rapporteur of the
International Law Commission on the question of reservations has
written that ‘a statement by which a State purported to exclude the appli-
cation of a treaty to a territory meant that it sought “to exclude or to
modify” the legal effect which the treaty would normally have, and such a
statement therefore constituted, according to the Special Rapporteur, a
“true” reservation, rationae loci’.73 The problem has become largely
hypothetical, because Denmark withdrew the declaration in 2006.

Acceptance of jurisdiction by a non-party State

In addition to the territorial and personal jurisdiction that results from
ratification of the Statute with respect to a State Party, Article 12(3) also
contemplates the possibility of a non-party State accepting the jurisdic-
tion of the Court on an ad hoc basis. The provision requires such a State
to lodge a declaration with the Registrar by which it accepts the exercise
of jurisdiction by the Court ‘with respect to the crime in question’. The
Statute describes such a State as an ‘accepting State’. The final sentence in
Article 12(3) says that ‘[t]he accepting State shall cooperate with the
Court without any delay or exception in accordance with Part 9’.
However, there does not seem to be any consequence should an accepting
State fail to cooperate as required.74

172
Loizidou v. Turkey (Preliminary Objections), Series A, No. 310.
173
Report of the International Law Commission on the Work of Its Fiftieth Session, 20
April–12 June 1998, 27 July–14 August 1998, U N Doc. A/53/10 and Corr.1, para. 498.
174
On Art. 12(3), see Carsten Stahn, Mohamed El Zeidy and Héctor Olásolo, ‘The
International Criminal Court’s Ad Hoc Jurisdiction Revisited’, (2005) 99 American
Journal of International Law 421; Steven Freeland, ‘How Open Should the Door Be? –
Declarations by Non-States Parties under Article 12(3) of the Rome Statute of the
International Criminal Court’, (2006) 75 Nordic Journal of International Law 211;
Carsten Stahn, ‘Why Some Doors May Be Closed Already: Second Thoughts on a “Case-
by-Case” Treatment of Article 12(3) Declarations’, (2006) 75 Nordic Journal of
International Law 243.
 jurisdiction 79

David Scheffer has argued that the proper interpretation of the Rome
Statute is to limit the jurisdiction of the Court with respect to crimes
committed on the territory of a State Party to nationals of a State Party.
The argument relies heavily on a construction of the intent behind
Article 12(3), as well as other provisions. He has suggested that, if such an
interpretation were to be confirmed, it would lessen much of the opposi-
tion to the Court from countries like the United States.75 The text of
Article 12(3) is ambiguous in its reference to a declaration by a non-party
State with respect to a ‘crime in question’. Does this refer to one of the
crimes listed in Article 5? In other words, are non-party States to make
declarations accepting the jurisdiction of the Court with respect to one or
more of genocide, crimes against humanity and war crimes? Such an
interpretation seems consistent with the use of the term ‘crimes’ in para-
graph 1 of Article 12. Or is the provision to mean the acceptance of juris-
diction with respect to a specific incident or situation? According to one
writer, the understanding of the drafters was that it referred to a ‘situa-
tion’.76 A consequence of this interpretation is to eliminate the perverse
situation in which a non-party State might attempt to make a one-sided
declaration, aimed at an adversary but at the same time designed to
shelter its own behaviour.
It was precisely in order to prevent abusive and one-sided use of Article
12(3) that the Assembly of States Parties has modified its application
somewhat. Rule 44 of the Rules of Procedure and Evidence states:
Declaration provided for in article 12, paragraph 3
1. The Registrar, at the request of the Prosecutor, may inquire of a State
that is not a Party to the Statute or that has become a Party to the Statute
after its entry into force, on a confidential basis, whether it intends to
make the declaration provided for in article 12, paragraph 3.
2. When a State lodges, or declares to the Registrar its intent to lodge, a
declaration with the Registrar pursuant to article 12, paragraph 3, or
when the Registrar acts pursuant to sub-rule 1, the Registrar shall
inform the State concerned that the declaration under article 12, para-
graph 3, has as a consequence the acceptance of jurisdiction with

175
David Scheffer, ‘How to Turn the Tide Using the Rome Statute’s Temporal Jurisdiction’,
(2004) 2 Journal of International Criminal Justice 26.
176
Hans-Peter Kaul, ‘Preconditions to the Exercise of Jurisdiction’, in Antonio Cassese,
Paola Gaeta and John R. W. D. Jones, eds., The Rome Statute of the International Criminal
Court: A Commentary, vol. I, Oxford: Oxford University Press, 2002, pp. 583–616. Also:
M. Cherif Bassiouni, ‘Negotiating the Treaty of Rome on the Establishment of an
International Criminal Court’, (1999) 32 Cornell International Law Journal 443 at 453–4.
80 an introduction to the international criminal court

respect to the crimes referred to in article 5 of relevance to the situation

and the provisions of Part 9, and any rules thereunder concerning States
Parties, shall apply.

The provision in the Rules was promoted by the Americans in an attempt

to ‘fix’ what they considered to be the perverse consequences of Article
12(3).77 The United States argued that Article 12(3) would allow a
Saddam Hussein to invoke the jurisdiction of the Court for crimes com-
mitted by the United States in Iraq, and yet prevent it from doing the
same with atrocities committed by the regime against the people of the
country.78 The Rule means such a one-sided manipulation of the jurisdic-
tion is impossible. Some supporters of the American position have taken
the view that reciprocity flows automatically from the logic of a ‘sensible
reading’ of Article 12(3) in any event, and that there is no need for a rule
to clarify things.79 Others claim that, even with Rule 44, the problem per-
sists. According to Jack Goldsmith:
This vague provision does not, as many have stated, guarantee that Article
12(3) parties will consent to jurisdiction for all crimes related to the
consent. But even if it did, the Iraqs of the world could consent under
Article 12(3) and simply not show up. Rule 44(3) improves the anomaly of
Article 12(3), but does not fix it.80

There have been two declarations in accordance with Article 12(3),

one of them by Côte d’Ivoire and the other by Uganda. Côte d’Ivoire
signed the Rome Statute on 30 November 1998, but it has never ratified
the instrument and is not a State Party. The Prosecutor has said that he
will send a mission to Côte d’Ivoire ‘when security permits’.81 As for
Uganda, in support of his application for arrest warrants of leaders of the
Lord’s Resistance Army, the Prosecutor included a ‘Declaration on
Temporal Jurisdiction’, dated 27 February 2004, whereby the Republic of
Uganda accepted the exercise of the Court’s jurisdiction for crimes

177
David J. Scheffer, ‘The United States and the International Criminal Court’, (1999) 93
American Journal of International Law 12 at 18–20.
178
David J. Scheffer, ‘A Negotiator’s Perspective on the International Criminal Court’,
(2001) 167 Military Law Review 1 at 8.
179
Ruth Wedgwood, ‘The United States and the International Criminal Court: Achieving a
Wider Consensus Through the “Ithaca Package” ’, (1999) 32 Cornell International Law
Journal 535 at 541.
180
Jack Goldsmith, ‘The Self-Defeating International Criminal Court’, (2003) 70 University
of Chicago Law Review 89, n. 11.
181
‘Sixth Diplomatic Briefing of the International Criminal Court, Compilation of
Statements’, 23 March 2006.
 jurisdiction 81

committed following the entry into force of the Statute on 1 July 2002.
Because Uganda ratified the Rome Statute on 14 June 2002, it only
entered into force with respect to Uganda on 1 September 2002, two
months after the entry into force of the Statute itself. Although no explicit
provision allows for a State Party to backdate the effect of its ratification,
Article 12(3) of the Rome Statute authorises a non-party State to accept
jurisdiction over specific crimes. Presumably, Article 12(3) is the author-
ity for Uganda’s ‘Declaration of Temporal Jurisdiction’.
Article 12(3) is a the residue of a provision in the 1994 draft statute of
the International Law Commission by which State consent was contem-
plated on a case-by-case basis. Article 12(3) allows the Court to exercise
jurisdiction if a non-party State makes a declaration ‘with respect to the
crime in question’ committed on its territory or by one of its nationals.
The reference to ‘crime’ rather than ‘situation’ implies that this is not
analogous to a referral by a State Party or by the Security Council. The
language used in Articles 12 and 13 suggests that what is envisaged is an
investigation that has already been initiated by the Prosecutor, that is then
followed by a request that the State concerned consent to jurisdiction.
The fact that the Prosecutor has not initiated proceedings confirms his
understanding that Côte d’Ivoire’s declaration does not mean the case has
been referred to the Court, and that its jurisdiction has been triggered.
The Prosecutor might well make greater use of Article 12(3). It is a way
of addressing impunity in territories that may not yet be subject to the
jurisdiction of the Court. For example, could not the Prosecutor, given his
pro-active approach to inciting referrals, invite Cuba to make a declaration
under Article 12(3) concerning a portion of its sovereign territory that has
been under foreign occupation for more than a century, and where there
are credible allegations of large-scale violations of human rights?
One intriguing application of Article 12(3) concerns States that do not
yet exist. Could Palestine, for example, which is not a Member State of the
United Nations and which is not generally recognised as an independent
State, declare that it intends to join the Court upon obtaining statehood
and to accompany its accession to the Rome Statute with a declaration
under Article 12(3) giving the Court jurisdiction over its territory for all
acts perpetrated since 1 July 2002? Even in such cases, the Court would
obviously be without jurisdiction to prosecute a crime committed prior
to the entry into force of the Statute. Similar issues could arise in the
opposite direction if Israel were to make a declaration under Article
12(3), thereby accepting the jurisdiction of the Court with respect to a
specific crime committed on its territory.
82 an introduction to the international criminal court

Subject-matter (ratione materiae) jurisdiction

The International Criminal Court has jurisdiction over four categories of
international crimes: genocide, crimes against humanity, war crimes and
aggression. In both the preamble to the Statute and Article 5, these are
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’ (Art. 1).82
The concept of ‘international crimes’ has been around for centuries.
They were generally considered to be offences whose repression com-
pelled some international dimension. Piracy, for example, was commit-
ted 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. Today we are more likely to use the term
‘transnational crime’ for such offences. 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.83 Many transnational crimes 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 four crimes subject to the jurisdiction of the International
Criminal Court are somewhat more recent in origin than many of the so-
called ‘treaty crimes’ or transnational crimes, in that their recognition and
subsequent development is closely associated with the human rights
movement that arose subsequent to World War II. To a large extent they
are ‘international’ crimes for much the same reason as the earlier genera-
tion of treaty crimes. They too escape prosecution under the ordinary
criminal justice system, although in the case of genocide, crimes against
humanity, war crimes and aggression it is not so much because they are
territorially inaccessible or are committed over several territories as that
they are left unpunished by the very State where the crime was committed.

182
For an extensive review of the crimes punishable by the Court, see Machteld Boot,
Genocide, Crimes Against Humanity, War Crimes: Nullum Crimen Sine Lege and the
Subject Matter Jurisdiction of the International Criminal Court, Antwerp: Intersentia,
83
2002. G A Res. 44/89.
 jurisdiction 83

The explanation for this is political, not technical: the State of territorial
jurisdiction is usually unwilling to prosecute because it is itself complicit
in the criminal behaviour.
The Rome Statute suggests that there is another explanation for the
international dimension of the crimes within the Court’s jurisdiction.
Their heinous nature elevates them to a level where they are of ‘concern’
to the international community. They dictate prosecution because
humanity as a whole is the victim. Moreover, humanity as a whole is enti-
tled, 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 pre-
rogatives of State sovereignty.
But aren’t all serious crimes of violence against the person of concern to
the international community? Certainly, many heinous crimes committed
within States go unnoticed by the international community. This is surely
not because of the objective gravity of the crime, but rather because the
national justice system acts effectively to address the issue. Terrorist
crimes are a good example. They may often involve hundreds of deaths, in
appalling circumstances, and they feature in the headlines of the world’s
newspapers. But they are of little concern to international justice because
the crime is adequately prosecuted by the domestic courts.
Thus, the rationale for the classification of international prosecution
cannot be oversimplified. The need to ensure that there is no impunity
for State-sponsored crimes and the objective heinousness of the offence
act as somewhat competing justifications for the exercise. Among the
legal consequences of classifying an offence as an international crime are
the possible exercise of universal jurisdiction, a duty to prosecute or
extradite, a prohibition on statutory limitation and a justification for
prosecution before international courts.
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.84 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

184
Agreement for the Prosecution and Punishment of Major War Criminals of the European
Axis, and Establishing the Charter of the International Military Tribunal (I M T ), Annex,
(1951) 82 U N TS 279.
84 an introduction to the international criminal court

prosecutors of the International Military Tribunal, the indictments

against Nazi criminals for the genocide of European Jews were based on
the cognate charge of ‘crimes against humanity’. But, in contemporary
usage, the crime of ‘genocide’ is now largely subsumed within the broader
concept of ‘crimes against humanity’.
The definitions of crimes within the Nuremberg Charter are relatively
laconic. The scope of the four categories of crimes as they are now con-
ceived has evolved considerably since that time. Post-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 con-
flict, and war crimes are punishable whether they are committed in non-
international or in international armed conflict. The evolution in the
conceptions is 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. The evolution
in international criminal law towards longer and longer definitional pro-
visions does not necessarily mean that the norms are being broadened.
The relatively short war crimes definition in the Statute of the
International Criminal Tribunal for the former Yugoslavia, as interpreted
by the Appeals Chamber, is much larger in scope than its equivalent in the
Rome Statute, with its detailed enumeration.85 Arguments in favour of
more extensive 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 human rights treaties, such as the 1984 Convention
Against Torture86 or the earlier Apartheid Convention.87 But most of the

185
For example, Art. 3 of the Statute of the International Criminal Tribunal for the former
Yugoslavia, with its general criminalisation of serious violations of international human-
itarian law, is clearly much more comprehensive than the detailed codification of Art. 8 of
the Rome Statute.
186
Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment, (1987) 1465 U N TS 85.
187
International Convention on the Suppression and Punishment of the Crime of
Apartheid, (1976) 1015 U N TS 243.
 jurisdiction 85

development in the definition of these crimes is attributed to the evolu-

tion of customary law, whose content is not always as easy to identify with
clarity. The definitions of crimes set out in Articles 6–8, as completed by
the Elements of Crimes, correspond in a general sense to the state of cus-
tomary international law.88 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’89 or ‘atrocity crimes’.90 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 inter-
national 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 pro-
vision.91 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 law may raise the
age of prohibited military recruitment from fifteen, or consider certain
weapons to be prohibited, or regard the death penalty and even life
imprisonment as a form of torture or cruel, inhuman or degrading treat-
ment or punishment. 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

188
The Canadian legislation implementing the Rome Statute declares that ‘crimes described
in Articles 6 and 7 and paragraph 2 of Article 8 of the Rome Statute are, as of July 17,
1998, crimes according to customary international law’: Crimes Against Humanity and
War Crimes Act, S C 2000, c. 24, ss. 4(4) and 6(4).
189
See, on this, L. C. Green, ‘ “Grave Breaches” or Crimes Against Humanity’, (1997/8) 8
United States Air Force Academy Journal of Legal Studies 19; William J. Fenrick, ‘Should
Crimes Against Humanity Replace War Crimes?’, (1999) 37 Columbia Journal of
Transnational Law 767.
190
David Scheffer, ‘The Future of Atrocity Law’, (2002) 35 Suffolk Transnational Law Review
389; David Scheffer, ‘Genocide and Atrocity Crimes’, (2007) 2 Genocide Studies and
Prevention (forthcoming).
191
Note also the definitions of crimes, which begin with the phrase ‘For the purpose of this
Statute . . .’.
86 an introduction to the international criminal court

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 exer-
cise 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 inter-
ests 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’.92 In the
first cases to come before the Court, both the Prosecutor and the Pre-Trial
Chambers have stressed the importance of the gravity threshold, and the
need to focus prosecutions on leaders and organisers.93 With respect to
young offenders, the Statute does this expressly.94
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 sys-
tematic’ qualification, have a quantitative dimension. They are not isolated
crimes, and will in practice only be prosecuted when planned or commit-
ted on a large scale. In contrast, war crimes do not, in a definitional sense,
require the same quantitative scale. A single murder of a prisoner of war or
192
Rome Statute, Art. 53(2)(c).
193
Lubanga (I C C -01/04–01/06-8), Decision on the Prosecutor’s Application for a Warrant
of Arrest, 10 February 2006.
194
Rome Statute, Art. 26. See the discussion of this provision earlier in this chapter.
 jurisdiction 87

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 para-
graph or chapeau at the beginning of Article 8: ‘The Court shall have juris-
diction 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,95 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 interna-
tional 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 temporarily to ‘opt out’ 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,96 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 human-
ity. The crime of ‘direct and public incitement’ exists only in the case of
genocide;97 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.98 Nevertheless, the tribunals consistently

195
U N Doc. A/C O N F.183/S R .2, para. 61 (Sweden); U N Doc. A/C O N F.183/C.1/S R .4,
para. 59 (Germany); U N Doc. A/C O N F.183/C.1/S R .4, para. 110 (New Zealand), para.
111 (Czech Republic) and para. 112 (Ireland).
196 97
Rome Statute, Arts. 33(1) and 31(1)(c), respectively. Ibid., Art. 25(3)(e).
198
Erdemović (I T-96-22-A), Sentencing Appeal, 7 October 1997, (1998) 111 I L R 298;
Kupreškić et al. (I T-95-16-T), Judgment, 14 January 2000; Tadić (I T-94-1-A and I T-94-
1-Abis), Judgment in Sentencing Appeals, 26 January 2000; Furundžija (I T-96-17/ 1-A),
Judgment, 17 July 2000.
88 an introduction to the international criminal court

impose the most serious penalties when an individual is convicted of

genocide, and the lightest when the conviction lies for war crimes.
Moreover, in the negotiation of plea agreements, both Prosecutor and
defendant seem to agree that it is beneficial for an accused to have a geno-
cide charge withdrawn and to plead guilty ‘only’ to crimes against
humanity, suggesting that there is a hierarchy, at least at this subjective
level.99
Article 5 of the Rome Statute declares that the Court’s jurisdiction is
limited to ‘the most serious crimes of concern to the international com-
munity as a whole’ and, specifically, to the crime of genocide, crimes
against humanity, war crimes and the crime of aggression. A review con-
ference, to be held seven years after the entry into force of the Statute, may
consider amendments to the list of crimes contained in Article 5,100 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.101
Some offences, while theoretically within the 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.102 But
the real ‘sleeper’ in the Court’s subject-matter jurisdiction is the crime of
aggression. While the Rome Conference accepted 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.
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

199
See, e.g., Plavšić (I T-00-39 and 40/1), Sentencing Judgment, 27 February 2003;
Rutaganira (I C T R-95-1C-T), Jugement portant condamnation, 14 March 2005.
100 101 102
Rome Statute, Art. 123. Ibid., Art. 121(5). Ibid., Art. 8(2)(b)(xx).
 jurisdiction 89

‘treaty crimes’ because they have been proscribed in a variety of multilat-

eral conventions dealing with terrorist crimes, drug crimes and crimes
against United Nations personnel.103 Proposals at the Rome Conference
to include drug-trafficking104 and terrorism105 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.106 There was also concern that there would be
interference with existing international or transnational efforts at the
repression of such crimes.107 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.108 The Final Act of the
Rome Conference, adopted at the same time as the Statute, includes a res-
olution on treaty crimes recommending that the Review Conference con-
sider means to enable the inclusion of crimes of terrorism and drug
crimes.109 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.110
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.111 Antonio Cassese was somewhat

103
See especially Report of the Preparatory Committee on the Establishment of an
International Criminal Court, Addendum, UN Doc. A/CONF.183/2/Add.1 (1998), Art. 5.
104
Proposal Submitted by Barbados, Dominica, Jamaica, and Trinidad and Tobago on
Article 5, U N Doc. A/C O N F.183/C.1/L.48.
105
Proposal Submitted by Algeria, India, Sri Lanka and Turkey on Article 5, U N Doc.
A/C O N F.183/C.1/L.27/Corr.1.
106
Daniel D. Ntanda Nsereko, ‘The International Criminal Court: Jurisdictional and Related
Issues’, (1999) 10 Criminal Law Forum 87 at 91–2. See also Neil Boister, ‘The Exclusion of
Treaty Crimes from the Jurisdiction of the Proposed International Criminal Court: Law,
Pragmatism, Politics’, (1998) 3 Journal of Armed Conflict Law 27.
107
E.g., U N Doc. A/C O N F.183/S R .9, para. 31 (United States).
108
Rome Statute, Art. 8(2)(e)(iii), (b)(vii) and (3)(iii).
109
U N Doc. A/C O N F.183/C.1/L.76/Add.14, p. 8.
110
UN Doc. A/C.6/53/SR.9. See Patrick Robinson, ‘The Missing Crimes’, in Antonio Cassese,
Paola Gaeta and John R. W. D. Jones, eds., The Rome Statute of the International Criminal
Court: A Commentary, vol. I, Oxford: Oxford University Press, 2002, pp. 497–525.
111
For example, Geoffrey Robertson, The Times, 18 September 2001, p. 18; Alain Pellet, Le
Monde, 21 September 2001, p. 12.
90 an introduction to the international criminal court

circumspect, observing cautiously that ‘it may happen that states gradually
come to share this characterisation’.112 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.
As the judicial activities of the International Criminal Court begin, it
becomes increasingly evident that it will only be able to deal with a very
limited number of cases. The Court has already laid great emphasis on the
gravity threshold in Article 17(1)(d), in effect insisting that its precious
resources are inadequate to address even the three core crimes listed in
Articles 6, 7 and 8 when cases are not being prosecuted because States are
unwilling or unable. If it can handle only a handful of the most serious cases
of the most serious crimes committed by leaders and organisers, it seems
entirely unrealistic to think that new criminal law paradigms, such as drug-
trafficking or terrorism, could be added to the jurisdiction. States should
appreciate that, even if such categories of crime were to be included in the
subject-matter jurisdiction, there would almost certainly be no prosecu-
tions because they would fail the gravity test, when set alongside the most
egregious crimes of genocide, crimes against humanity and war crimes.
The strongest argument for excluding such crimes is that they do not
suffer from a problem of impunity in a manner similar to that of the
other categories. Genocide, crimes against humanity, war crimes and
aggression all became international crimes not so much because of their
scale or horror as because they were perpetrated by the governments
themselves, or with their complicity. For that reason, they went unpun-
ished. The courts of the jurisdiction that would ordinarily prosecute
would not assume such duties because they were part of a State that was
itself involved in the criminal acts. The same problem does not generally
exist with respect to terrorism and drug-trafficking, where the interna-
tional dimension is essentially one of inter-State cooperation rather than
the reluctance of a State to prosecute. To the extent that there is impunity
for drug crimes and terrorism, it is a failure of law enforcement and
mutual legal assistance, rather than the lack of an appropriate national
jurisdiction that is willing and able to investigate or prosecute.
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

112
Antonio Cassese, ‘Terrorism Is Also Disputing Some Crucial Legal Categories of
International Law’, (2001) 12 European Journal of International Law 993 at 995.
 jurisdiction 91

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.113
The Elements of Crimes are a source of applicable law for the Court,114
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 many at Rome greeted it with some suspicion, the
idea seemed rather less harmful than many other Washington-based ini-
tiatives and it was incorporated into the Statute without great opposition.
Fundamentally, the Elements reflect the continuing anxiety among States
of any degree of judicial discretion. Thus, in addition to prolix definitions
of crimes, the Elements further fetter the possibilities of judicial interpre-
tation. On a more positive note, they are somewhat easier to amend than
the Statute itself. Adopted by the Assembly of States Parties, they allow for
the possibility of ‘tweaking’ the definitions of crimes when this seems
desirable without the requirement of a full-blown amendment.

Genocide
The word ‘genocide’ was coined in 1944 by Raphael Lemkin in his book
on Nazi crimes in occupied Europe.115 Lemkin felt that the treaty regime
aimed at the 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 inter-
national crime by the General Assembly of the United Nations.116 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 sepa-
rate 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 human-
ity could only be committed in association with an international armed

113
Pursuant to Art. 9 of the Rome Statute. The Elements of Crimes are published in the
report of the first session of the Assembly of States Parties: Doc. I C C -A S P /1/3,
114
pp. 108–55. Rome Statute, Art. 21(1)(a).
115
Raphael Lemkin, Axis Rule in Occupied Europe: Laws of Occupation, Analysis of
Government, Proposals for Redress, Washington D C : Carnegie Endowment for World
116
Peace, 1944. G A Res. 96 (I).
92 an introduction to the international criminal court

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. The price to pay,
however, was an exceedingly narrow definition of the mental and mater-
ial elements of the crime, and of the punishable acts. 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 pros-
ecution by courts other than those where the crime took place. In this
pursuit they were unsuccessful. The negotiated agreement was set out in
the Convention on the Prevention and Punishment of the Crime of
Genocide, adopted by the General Assembly on 9 December 1948.117 The
Convention entered into force slightly more than two years later after
obtaining twenty ratifications. The Convention itself has been described
as the quintessential human rights treaty.118
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 com-
mitted in peacetime as well as in wartime. At the present time, genocide
constitutes the most aggravated form of crime against humanity.119 The
International Criminal Tribunal for Rwanda has labelled it ‘the crime of
crimes’.120 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.121 Although literature on the subject is replete with propos-

117
Convention on the Prevention and Punishment of the Crime of Genocide, (1951) 78
U N TS 277.
118
Report of the International Law Commission on the Work of Its Forty-Ninth Session, 12
May–18 July 1997, U N Doc. A/52/10, para. 76. See also Kayishema and Ruzindana
(I C T R-95-1-T), Judgment, 21 May 1999, para. 88.
119
On the crime of genocide, see Nehemiah Robinson, The Genocide Convention: A
Commentary, New York: Institute of Jewish Affairs, 1960; Pieter Nicolaas Drost,
Genocide: United Nations Legislation on International Criminal Law, Leyden: A. W.
Sijthoff, 1959; and William A. Schabas, Genocide in International Law: The Crime of
Crimes, Cambridge: Cambridge University Press, 2000.
120
Kambanda (I C T R-97-23-S), Judgment and Sentence, 4 September 1998, para. 16;
Serashugo (I C T R-98-39-S), Sentence, 2 February 1999, para. 15; Jelisić (I T-95-10-A),
Partial Dissenting Opinion of Judge Wald, 5 July 2001, para. 1; Stakić (I T-97-29-T),
Decision on Rule 98 bis Motion for Judgment of Acquittal, 31 October 2002, para. 22.
121
U N Doc. A/C O N F.183/C.1/S R .3, paras. 2, 18 and 20 (Germany), para. 22 (Syria), para.
24 (United Arab Emirates), para. 26 (Bahrain), para. 28 (Jordan), para. 29 (Lebanon),
para. 30 (Belgium), para. 31 (Saudi Arabia), para. 33 (Tunisia), para. 35 (Czech
Republic), para. 38 (Morocco), para. 40 (Malta), para. 41 (Algeria), para. 44 (India),
para. 49 (Brazil), para. 54 (Denmark), para. 57 (Lesotho), para. 59 (Greece), para. 64
(Malawi), para. 67 (Sudan), para. 72 (China), para. 76 (Republic of Korea), para. 80
 jurisdiction 93

als to amend the definition of genocide, at the Rome Conference, only

Cuba argued that it might be altered by the inclusion of political and
social groups.122
Genocide is defined in Article 6 of the Rome Statute.123 The provision
is essentially a copy of Article II of the Genocide Convention. The defini-
tion set out in Article II, although often criticised for being overly restric-
tive 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 consisting of 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 defi-
nition 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 modelled on
Article II of the Genocide Convention. Only in late 1998, after the adop-

(Poland), para. 84 (Trinidad and Tobago), para. 85 (Iraq), para. 107 (Thailand), para.
111 (Norway), para. 113 (Côte d’Ivoire), para. 116 (South Africa), para. 119 (Egypt),
para. 122 (Pakistan), para. 123 (Mexico), para. 127 (Libya), para. 132 (Colombia), para.
135 (Iran), para. 137 (United States), para. 141 (Djibouti), para. 143 (Indonesia), para.
145 (Spain), para. 150 (Romania), para. 151 (Senegal), para. 153 (Sri Lanka), para. 157
(Venezuela), para. 161 (Italy), para. 166 (Ireland) and para. 172 (Turkey).
122
Ibid., para. 100.
123
Lyal S. Sunga, ‘The Crimes within the Jurisdiction of the International Criminal Court
(Part II, Articles 5–10)’, (1998) 6 European Journal of Crime, Criminal Law and Criminal
Justice 61 at 66–8; Hermann von Hebel and Daryl Robinson, ‘Crimes within the
Jurisdiction of the Court’, in Roy S. Lee, ed., The International Criminal Court: The
Making of the Rome Statute: Issues, Negotiations, and Results, The Hague: Kluwer Law
International, 1999, pp. 79–126 at pp. 89–90; William A. Schabas, ‘Article 6’, in Otto
Triffterer, ed., Commentary on the Rome Statute of the International Criminal Court:
Observers’ Notes, Article by Article, Baden-Baden: Nomos Verlagsgesellschaft, 1999,
pp. 107–16; Emanuela Fronza, ‘Genocide in the Rome Statute’, in Flavia Lattanzi and
William A. Schabas, eds., Essays on the Rome Statute of the International Criminal Court,
Rome: Editrice il Sirente, 2000, pp. 105–38; Christine Byron, ‘Genocide’, in Dominic
McGoldrick, Peter Rowe and Eric Donnelly, eds., The Permanent International Criminal
Court: Legal and Policy Issues, Oxford and Portland, O R : Hart Publishing, 2004,
pp. 143–77; Machteld Boot, Nullum Crimen Sine Lege and the Subject Matter Jurisdiction
of the International Criminal Court, Genocide, Crimes Against Humanity, War Crimes,
Antwerp: Intersentia, 2002, pp. 401–54.
94 an introduction to the international criminal court

tion 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, biolog-
ical 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 geno-
cide 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 phys-
ical and biological genocide, and bold judges might be tempted to adopt
such progressive construction. Recent decisions of the International
Criminal Tribunal for the former Yugoslavia124 and of the German
Constitutional Court125 suggest that the law may be evolving in this direc-
tion. Other judgments adopt a more restrictive interpretation.126 In any
event, evidence of ‘cultural genocide’ has already proven to be an impor-
tant indicator of the intent to perpetrate physical genocide.127
The definition of genocide contains no formal requirement that the
punishable acts be committed as part of a widespread or systematic

124
Krstić (I T-98-33-T), Judgment, 2 August 2001, para. 580; Krstić (I T-98-33-A),
Judgment, 19 April 2004. See particularly the Partially Dissenting Opinion of Judge
Shahabbuddeen, which was followed in Blagojević et al. (I T-02-60-T), Judgment, 17
January 2005.
125
Nikolai Jorgic, Bundesverfassungsgericht (Federal Constitutional Court), Fourth
Chamber, Second Senate, 12 December 2000, 2 BvR 1290/99, para. (III)(4)(a)(aa).
126
Br«anin (I T-99-36-T), Judgment, 1 September 2004.
127
Karadžić and Mladić (I T-95-5-R61, I T-95-18-R61), Consideration of the Indictment
within the Framework of Rule 61 of the Rules of Procedure and Evidence, 11 July 1996,
para. 94.
 jurisdiction 95

attack, or as part 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 Jelisić case a Trial Chamber of the
International Criminal Tribunal for the former Yugoslavia entertained
the hypothesis of the lone genocidal maniac.128 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.’129 The Darfur Commission, established by the United
Nations in 2004, concluded that genocide was not being committed in
Sudan essentially because it failed to find evidence of a State plan or
policy.130 Probably in reaction to the position taken at the Yugoslav
Tribunal, the Elements of Crimes adopted by the Assembly of States
Parties require that an act of genocide ‘took place in the context of a man-
ifest pattern of similar conduct directed against that group or was
conduct that could itself effect such destruction’.131
With the words ‘in whole or in part’, the definition indicates a quanti-
tative dimension. The quantity contemplated must be significant, and an
intent to kill only a few members of a group cannot be genocide. The pre-
vailing view is that, where only part of a group is destroyed, it must be a
‘substantial’ part.132 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 con-
clusion 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

128
Jelisić (I T-95-10-T), Judgment, 14 December 1999, para. 100.
129
Jelisić (I T-95-10-A), Judgment, 5 July 2001, para. 48. The Appeals Chamber’s obiter
dictum was followed in Sikirica et al. (I T-95-8-I), Judgment on Defence Motions to
Acquit, 3 September 2001, para. 62.
130
Report of the International Commission of Inquiry on Violations of International
Humanitarian Law and Human Rights Law in Darfur, U N Doc. S/2005/60, para. 518.
131
Elements of Crimes, Doc. I C C -A S P /1/3, pp. 113–15.
132
Jelesić (I T-95-10-T), Judgment, 14 December 1999, para. 82.
96 an introduction to the international criminal court

the leadership of the group,133 although in one case a Trial Chamber of

the Yugoslav Tribunal extended the approach to cover men of military
age.134 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 1995.135
The destruction must be directed at one of the four groups listed in the
definition: national, ethnical, racial or religious. The enumeration has
often been criticised because of its limited scope. In effect, proposals to
include political and social groups within the definition were rejected in
1948 and, again, during the drafting of the Rome Statute. But dissatisfac-
tion with the narrowness of the four terms was reflected in the first con-
viction for genocide by the International Criminal Tribunal for Rwanda.
It stated that the drafters of the Genocide Convention meant for the defi-
nition to apply to all ‘permanent and stable’ groups, a questionable inter-
pretation because it so clearly goes beyond the text.136 The ‘stable and
permanent’ gloss on the definition of genocide was not followed by other
Trial Chambers of the International Criminal Tribunal for Rwanda, and
finds no echo in the case law of the International Criminal Tribunal for
the former Yugoslavia.137
The four terms themselves are not easy to define. Moreover, the common
meaning of such concepts as ‘racial groups’ has changed considerably since
1948. Taken as a whole, the four terms correspond closely to what human
rights law refers to as ethnic or national minorities,138 expressions that
themselves have eluded precise definition. The real difficulty with attempt-
ing to find precise definition of the terms is its reliance on an objective
conception of the protected groups. Almost without exception, the inter-
national tribunals have opted for a subjective approach, by which the
groups are defined according to the attitudes of those who persecute them
rather than pursuant to some scientifically verifiable list of parameters. For

133
Sikirica et al. (I T-95-8-I), Judgment on Defence Motions to Acquit, 3 September 2001,
134
para. 80. Krstić (I T-98-33-T), Judgment, 2 August 2001, para. 595.
135
Ibid., para. 590.
136
Akayesu (I C T R-96-4-T), Judgment, 2 September 1998 (1998) 37 I L M 1399, para. 515.
But, in other cases before the Rwanda Tribunal, this approach has not been adopted:
Kayishema and Ruzindana (I C T R-95-1-T), Judgment, 21 May 1999, para. 94. See also
Rutaganda (I C T R-96-3-T), Judgment, 6 December 1999.
137
See, however, the Darfur Commission, which endorses the approach: Report of the
International Commission of Inquiry on Violations of International Humanitarian Law
and Human Rights Law in Darfur, U N Doc. S/2005/60, para. 498.
138
Krstić (I T-98-33-T), Judgment, 2 August 2001, para. 556.
 jurisdiction 97

example, the Darfur Commission concluded that the persecuted tribes of

western Sudan were subsumed within the scope of the crime of genocide to
the extent that victim and persecutor ‘perceive each other and themselves as
constituting distinct groups’.139 This essentially subjective view towards the
identification of groups contemplated by the definition of genocide has
gained increasing acceptance in the case law of the international tri-
bunals.140 The point here is that the victims were being persecuted not
because the Janjaweed militias saw them as a ‘permanent and stable group’,
but rather because they considered them to be a ‘national, ethnical, racial or
religious group’. Once the subjective approach, which relies essentially on
the perpetrator’s perception of the victim group, is adopted, there is no
longer a need to enlarge, by interpretation, the accepted definition of the
crime of genocide. The responsibility for genocide lies with racists, and
they attack groups not because they are ‘stable and permanent’ but because
they perceive them to be national, racial, ethnic or religious.
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. According to the Appeals
Chamber of the International Criminal Tribunal for Rwanda, the words
‘as such’ are ‘an important element of genocide’, and were included in the
1948 Convention in order to reconcile divergent views as to whether or
not motive should be an element of the crime:
The term ‘as such’ has the effet utile of drawing a clear distinction between
mass murder and crimes in which the perpetrator targets a specific group
because of its nationality, race, ethnicity or religion. In other words, the
term ‘as such’ clarifies the specific intent requirement. It does not prohibit
a conviction for genocide in a case in which the perpetrator was also driven
by other motivations that are legally irrelevant in this context.141

The definition of the mental element or mens rea of the crime of geno-
cide, found in the chapeau of the provision, is followed by five paragraphs

139
Ibid., para. 509.
140
Semanza (I C T R-97-20-T), Judgment and Sentence, 15 May 2003, para. 317; Kajelijeli
(I C T R-98-44A-T), Judgment and Sentence, 1 December 2003, para. 811.
141
Niyitegeka (I C T R-96-14-A), Judgment, para. 53 (references omitted).
98 an introduction to the international criminal court

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.142
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 homicide143
(although the Elements of Crimes say that the term ‘killing’ is ‘inter-
changeable’ with ‘causing death’, which seems to leave room for uninten-
tional 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 degrad-
ing treatment’.144 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 not accompanied by the specific genoci-
dal intent. In cases where the intent falls short of the definition, prosecu-
tion may still lie for crimes against humanity or war crimes.

Crimes against humanity

Although occasional references to the expression ‘crimes against human-
ity’ 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 ‘new crimes against humanity and civili-
sation’ in a declaration of three Allied powers pledging that those respon-
sible would be held personally accountable.145 But, in the post-war peace
negotiations, there were objections that this was a form of retroactive

142
Note, for example, that the Prosecutor of the International Criminal Tribunal for the
former Yugoslavia indicted Slobodan Milošević for crimes against humanity and not
genocide with respect to allegations of ‘ethnic cleansing’ in Kosovo during 1999:
Milošević et al. (I T-99-37-I), Indictment, 22 May 1999.
143
Akayesu (I C T R-96-4-T), Judgment, 2 September 1998, paras. 228–9.
144
Elements of Crimes, Art. 6(b), para. 1, n. 3.
145
United Nations War Crimes Commission, History of the United Nations War Crimes
Commission and the Development of the Laws of War, London: His Majesty’s Stationery
Office, 1948, p. 35.
 jurisdiction 99

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 little legal difficulty with international 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 inter-
national crimes. The 1907 Hague Convention set out general principles
concerning the treatment of civilians under occupation, but most of
these were already well-accepted components of customary international
law. Yet, when Allied lawyers met in 1943 and 1944 to prepare the post-
war 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 organisations, 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 the Allies were uncomfortable with the ramifications that this might
have with respect to the treatment of minorities within their own coun-
tries, 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 jurisdic-
tion, that is, war crimes and crimes against peace.146 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.147 Indeed, we refer to
the Nuremberg prosecutions as ‘war crimes trials’, and the restrictive

146
Report of Robert H. Jackson, United States Representative to the International Conference on
Military Trials, Washington D C : U S Government Printing Office, 1949; Egon Schwelb,
‘Crimes Against Humanity’, (1946) 23 British Yearbook of International Law 178; Roger S.
Clark, ‘Crimes Against Humanity at Nuremberg’, in G. Ginsburgs and V. N. Kudriavstsev,
eds., The Nuremberg Trial and International Law, Dordrecht and Boston: Martinus
Nijhoff, 1990, pp. 177–212.
147
Lyal S. Sunga, ‘The Crimes within the Jurisdiction of the International Criminal Court
(Part II, Articles 5–10)’, (1998) 6 European Journal of Crime, Criminal Law and Criminal
Justice 61 at 68.
100 an introduction to the international criminal court

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, geno-
cide, 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.148 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.149 In 1995,
in its celebrated Tadić 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 prac-
tice with respect to crimes against humanity’.150 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’.151
Article 7 of the Rome Statute codifies this evolution in the defini-
tion of crimes against humanity, although an argument that customary

148
Agreement for the Prosecution and Punishment of Major War Criminals of the European
Axis, and Establishing the Charter of the International Military Tribunal (I M T ), Annex,
(1951) 82 U N TS 279, Art. 6(c); International Military Tribunal for the Far East, T I A S
No. 1589, Annex, Charter of the International Military Tribunal for the Far East, Art.
5(c); Control Council Law No. 10, Punishment of Persons Guilty of War Crimes, Crimes
Against Peace and Against Humanity, 20 December 1945, Official Gazette of the Control
Council for Germany, No. 3, 31 January 1946, pp. 50–5, Art. II(1)(c); Statute of the
International Criminal Tribunal for the former Yugoslavia, U N Doc. S/R E S /827 (1993),
Annex, Art. 5; Statute of the International Criminal Tribunal for Rwanda, U N Doc.
S/R E S /955 (1994), Annex, Art. 4.
149
Statute of the International Criminal Tribunal for Rwanda, U N Doc. S/R E S /955 (1994),
Annex, Art. 3.
150
Tadić (I T-94-1-A R 72), Decision on the Defence Motion for Interlocutory Appeal on
Jurisdiction, 2 October 1995, (1997) 105 I L R 453; (1997) 35 I L M 32, para. 140.
151
Kunarac et al. (I T-96-23 and I T-96-23/1-A), Judgment, 12 June 2002, para. 83.
 jurisdiction 101

international law still requires the nexus is not inconceivable, based upon
the fact that at Rome ‘a significant number of delegations argued vigor-
ously that crimes against humanity could only be committed during an
armed conflict’.152 Indeed, several Arab States initially said they could
only agree with crimes against humanity in international armed conflict,
and not non-international armed conflict, although their position
appeared to evolve as the debates wore on. In an explanation of its vote at
the conclusion of the Rome Conference, China said that it was still
opposed to the inclusion of crimes against humanity without a link to
international armed conflict.153 As with the definition of genocide, there
is nothing specific in the text of the Rome Statute 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 ‘wide-
spread 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

152
Hermann von Hebel and Daryl Robinson, ‘Crimes within the Jurisdiction of the Court’,
in Roy S. Lee, ed., The International Criminal Court: The Making of the Rome Statute:
Issues, Negotiations, and Results, The Hague: Kluwer Law International, 1999, pp. 79–126
at p. 92; U N Doc. A/C O N F.183/C.1/S R .3, para. 176. See also, on Art. 7 of the Rome
Statute, Darryl Robinson, ‘Crimes Against Humanity: Reflections on State Sovereignty,
Legal Precision and the Dictates of the Public Conscience’, in Lattanzi and Schabas,
Essays on the Rome Statute, pp. 139–70; Machteld Boot, Rodney Dixon and Christopher
K. Hall, ‘Article 7’, in Triffterer, Commentary, pp. 117–72; M. Cherif Bassiouni, Crimes
Against Humanity in International Law, 2nd edn, The Hague: Kluwer Law International,
1999; Darryl Robinson, ‘Defining “Crimes Against Humanity” at the Rome Conference’,
(1999) 93 American Journal of International Law 43; Timothy L. H. McCormack, ‘Crimes
Against Humanity’, in Dominic McGoldrick, Peter Rowe and Eric Donnelly, eds., The
Permanent International Criminal Court: Legal and Policy Issues, Oxford and Portland,
O R : Hart Publishing, 2004, pp. 179–202; Philippe Currat, Les crimes contre l’humanité
dans le Statut de la Cour pénale internationale, Geneva: Schulthess Medias Juridiques,
2006; Machteld Boot, Nullum Crimen Sine Lege and the Subject Matter Jurisdiction of the
International Criminal Court, Genocide, Crimes Against Humanity, War Crimes, Antwerp:
153
Intersentia, 2002, pp. 455–536. U N Doc. A/C O N F.183/S R .9, para. 38.
102 an introduction to the international criminal court

of the International Criminal Tribunal for the former Yugoslavia only a

year earlier, in the Tadić case.154 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 commis-
sion 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.155
The attack must also be carried out ‘pursuant to or in furtherance of a
State or organizational policy to commit such attack’. This phrase
appears to suggest that crimes against humanity may in some circum-
stances be committed by non-State actors. Historically, it was generally
considered that crimes against humanity required implementation of a
State policy. This requirement was gradually attenuated, a legal develop-
ment that paralleled the expansion of war crimes into the area of non-
international armed conflict. In Tadić, the Yugoslav Tribunal said that, at
customary law, crimes against humanity could also be committed ‘on
behalf of entities exercising de facto control over a particular territory but
without international recognition or formal status of a “de jure” state, or
by a terrorist group or organization’.156 The reflection of these views in
Article 7 of the Rome Statute is an example of the influence of the case law
of the ad hoc tribunals upon the drafters.
However, Professor Cherif Bassiouni, who chaired the drafting com-
mittee at the Rome Conference, disagrees that Article 7 enlarges the
concept of crimes against humanity so as to cover non-state actors. In his
recent three-volume work, The Legislative History of the International
Criminal Court, he argues:
Contrary to what some advocates advance, Article 7 does not bring a new
development to crimes against humanity, namely, its applicability to non-
state actors. If that were the case, the mafia, for example, could be charged
with such crimes before the I C C , and that is clearly neither the letter nor
the spirit of Article 7. The question arose after 9/11 as to whether a group

154
Tadić (I T-94-1-T), Opinion and Judgment, 7 May 1997, para. 656. Also: Report of the
Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808 (1993),
U N Doc. S/25704 (1993), para. 48.
155
Elements of Crimes, Art. 7, Introduction, para. 3.
156
Tadić (I T-94-1-T), Opinion and Judgment, 7 May 1997, para. 654.
 jurisdiction 103

such as al-Qaeda, which operates on a worldwide basis and is capable of

inflicting significant harm in more than one state, falls within this category.
In this author’s opinion, such a group does not qualify for inclusion within
the meaning of crimes against humanity as defined in Article 7, and for
that matter, under any definition of that crime up to Article 6(c) of the
I M T, notwithstanding the international dangers that it poses . . . The text
[of Article 7(2)] clearly refers to state policy, and the words ‘organisational
policy’ do not refer to the policy of an organisation, but the policy of a
state. It does not refer to non-state actors.157

The most authoritative statement against Professor Bassiouni’s position

is that of the Appeals Chamber of the International Criminal Tribunal for
the former Yugoslavia, buried in a footnote in its judgment in Kunarac.
The Appeals Chamber was addressing the issue from the standpoint of
customary international law, because of its well-known approach to
interpreting the Rome Statute by which its provisions are deemed to be
consistent with custom.158 After noting that ‘[t]here has been some
debate in the jurisprudence of this Tribunal as to whether a policy or plan
constitutes an element of the definition of crimes against humanity’, the
Appeals Chamber said that practice ‘overwhelmingly supports the con-
tention that no such requirement exists under customary international
law’.159 The Appeals Chamber cited a number of authorities in support:
Article 6(c) of the Nuremberg Charter, the Nuremberg Judgment,
national cases from Australia, Israel and Canada, the Secretary-General’s
report on the draft Statute of the Tribunal and various materials of the
International Law Commission. Unfortunately, there is no detailed
explanation, and it is often not very clear how and why these references
buttress the Appeals Chamber’s position. Moreover, the Appeals
Chamber did not even mention the text of Article 7(2) of the Rome
Statute, and what influence it might have upon the determination of cus-
tomary international law. Echoing earlier pronouncements of the
International Law Commission, the Appeals Chamber set the low-end
threshold of crimes against humanity as being more than merely ‘isolated
or random acts’.160 The case law of the International Criminal Tribunal

157
M. Cherif Bassiouni, The Legislative History of the International Criminal Court:
Introduction, Analysis and Integrated Text, vol. I, Ardsley, N Y: Transnational Publishers,
2005, pp. 151–2. See also M. Cherif Bassiouni, Crimes Against Humanity, 2nd edn, The
Hague: Kluwer Law International, 1999, pp. 243–81.
158
Tadić (I T-94-1-A), Judgment, 15 July 1999, para. 287 (see also para. 296).
159
Kunarac et al. (I T-96-23/1-A), Judgment, 12 June 2002, para. 98, n. 114.
160
Ibid., para. 96.
104 an introduction to the international criminal court

for the former Yugoslavia makes it impossible to exclude serial killers and
the acts of organised crime syndicates from the ambit of crimes against
humanity. Thus, judges at the International Criminal Court 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 restric-
tive view, should they attempt to do so.161 The gravity threshold on
admissibility is another factor that may restrain judicial attempts to
expand crimes against humanity beyond recognition.
The perpetrator of crimes against humanity must have ‘knowledge of
the attack’. This mental element, which is in addition to the general
knowledge and intent to commit the underlying crime, seems to be less
demanding than the ‘specific intent’ required for genocide. Most writers
refer to it as the ‘contextual element’, something that connects the specific
act with the broader context of the particular crimes. According to Maria
Kelt and Herman von Hebel,
there was considerable debate [during the negotiations of the Elements of
Crimes] as to whether [the contextual elements] really were ‘material ele-
ments’ – and if so whether they were (fully) covered by the mental element
of article 30 – or whether they formed a separate type of element. Some
participants thought, for example, that there might be a category of ele-
ments that are neither material nor mental, but which should be consid-
ered ‘jurisdictional’ or ‘merely jurisdictional’. Ultimately, however, an
explicit decision as to whether these elements were ‘material elements’
became unnecessary, as for each contextual element some corresponding
mental element [however, lower than that provided for under Article 30]
was specified in most cases, which, as a result . . . rendered the other ques-
tion moot.162

An individual who participates in crimes against humanity but who is

unaware that they are part of a widespread or systematic attack on a civil-
ian population may be guilty of murder and perhaps even of war crimes
but cannot be convicted by the International Criminal Court for crimes
against humanity. However, according to the Elements of Crimes, this

161
See the remarks by Antonio Cassese, ‘Areas Where Article 7 Is Narrower Than Customary
International Law’, in Antonio Cassese, Paola Gaeta and John R. W. D. Jones, eds., The
Rome Statute of the International Criminal Court: A Commentary, vol. I, Oxford: Oxford
University Press, 2002, pp. 375–6.
162
Maria Kelt and Herman von Hebel, ‘What Are the Elements of Crimes?’, in Roy Lee, ed.,
The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence,
Ardsley, N Y: Transnational Publishers, pp. 13–18 at p. 15.
 jurisdiction 105

does not require ‘that the perpetrator had knowledge of all characteristics
of the attack or the precise details of the plan or policy of the State or
organization’.163
The definition of crimes against humanity makes no mention of the
motive for such crimes, unlike earlier models for the definition that imply
such a requirement. Some States had argued for the contrary view, insist-
ing that they were supported by customary international law, but they
gave way to the majority on this point.164 This issue, too, remained con-
troversial until a 1999 judgment of the Appeals Chamber of the Yugoslav
Tribunal declared that there was no particular motive requirement for
crimes against humanity in general (the act of ‘persecution’ has a motive
requirement built into its definition).165 This does not mean, of course,
that motive is never relevant to the prosecution of crimes against human-
ity. Where it can be shown that an accused had a motive to commit the
crime, this may be a compelling indicator of guilt, just as the absence of
any motive may raise a doubt about guilt. Motive is also germane to the
establishment of an appropriate sentence for the crime.166
The chapeau or introductory portion of paragraph 1 of Article 7 is fol-
lowed by an enumeration of eleven acts of crimes against humanity. At
Nuremberg, the list was considerably shorter. It has been enriched princi-
pally 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 interna-
tional law, namely, apartheid, torture and enforced disappearance. Some
terms that were recognised at the time of Nuremberg have also been devel-
oped and expanded. For example, to ‘deportation’ are 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 crimes against
humanity is found in the very substantial list of ‘gender crimes’. The

163
Elements of Crimes, para. 2.
164
Hermann von Hebel and Daryl Robinson, ‘Crimes within the Jurisdiction of the Court’,
in Roy S. Lee, ed., The International Criminal Court: The Making of the Rome Statute:
Issues, Negotiations, and Results, The Hague: Kluwer Law International, 1999, pp. 79–126
165
at pp. 93–4. Tadić (I T-94-1-A), Judgment, 15 July 1999.
166
For example, Rules of Procedure and Evidence, U N Doc. P C N I C C /2000/I N F /3/Add.1,
Rule 145(2)(v).
106 an introduction to the international criminal court

Nuremberg Charter did not even recognise rape as a form of crime

against humanity, at least explicitly, although this was corrected by judi-
cial 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’.167 ‘Sexual slavery’
seems to overlap with the stand-alone crime against humanity of
‘enslavement’. According to a Trial Chamber of the International
Criminal Tribunal for the former Yugoslavia, ‘[t]he setting out of the vio-
lations in separate subparagraphs of the I C C Statute is not to be inter-
preted as meaning, for example, that sexual slavery is not a form of
enslavement. This separation is to be explained by the fact that the sexual
violence violations were considered best to be grouped together.’168 The
Elements of Crimes attempt to define ‘sexual slavery’: ‘The perpetrator
exercised any or all of the powers attaching to the right of ownership over
one or more persons, such as by purchasing, selling, lending or bartering
such a person or persons, or by imposing on them a similar deprivation of
liberty.’ A footnote states: ‘It is understood that such deprivation of
liberty may, in some circumstances, include exacting forced labour or
otherwise reducing a person to a servile status as defined in the
Supplementary Convention on the Abolition of Slavery, the Slave Trade,
and Institutions and Practices Similar to Slavery of 1956. It is also under-
stood that the conduct described in this element includes trafficking in
persons, in particular women and children.’169
The term ‘forced pregnancy’ was the most problematic when the
Statute was being drafted, because some believed it might be construed as
creating an obligation upon States to provide women who had been

167
For detailed analysis of the gender crime provisions in crimes against humanity, see Kelly
Dawn Askin, ‘Crimes Within the Jurisdiction of the International Criminal Court’,
(1999) 10 Criminal Law Forum 33; Cate Steains, ‘Gender Issues’, in Lee, The International
Criminal Court, pp. 357–90; and Barbara C. Bedont, ‘Gender-Specific Provisions in the
Statute of the I C C ’, in Lattanzi and Schabas, Essays on the Rome Statute, pp. 183–210. See
also Nicole Eva Erb, ‘Gender-Based Crimes under the Draft Statute for the Permanent
International Criminal Court’, (1998) 29 Columbia Human Rights Law Review 401;
Patricia Viseur Sellers and Kaoru Okuizuma, ‘International Prosecution of Sexual
Assaults’, (1997) 7 Transnational Law and Contemporary Problems 45.
168
Kvočka et al. (I T-98-30/1-T), Judgment, 2 November 2001, para. 541, n. 1333.
169
Elements of Crimes, Doc. I C C -A S P /1/3, p. 108, e.g., Arts. 7(1)(g)-(2), 8(2)(b)(xxii)-2
and 8(2)(e)(vi)-2. This is discussed in Knut Dörmann, Elements of War Crimes under the
Rome Statute of the International Criminal Court, Sources and Commentary, Cambridge:
Cambridge University Press, 2002, pp. 328–9.
 jurisdiction 107

forcibly impregnated with access to abortion.170 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.’171 The second sentence was
added to reassure some States that the Rome Statute would not conflict
with anti-abortion laws.172 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 evi-
dence of suffering by the victim, as this could be assumed.173
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’.174 It defined the crime as ‘a physical invasion of a sexual nature,
committed on a person under circumstances which are coercive’.175 The
definition was broad enough to encompass forced penetration by the
tongue of the victim’s mouth, which most legal systems would not stig-
matise as a rape, although it might well be prosecuted as a form of 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

170
U N Doc. A/C O N F.183/C.1/S R .3, para. 32 and U N Doc. A/C O N F.183/C.1/S R .5, para.
21 (Saudi Arabia); U N Doc. A/C O N F.183/C.1/S R .5, para. 71 (Iran). The Holy See
attempted to introduce a reference to ‘human beings’ in the preamble that was widely
viewed as an attempt to raise the abortion issue, and was rejected for this reason: Tuiloma
Neroni Slade and Roger S. Clark, ‘Preamble and Final Clauses’, in Lee, The International
171
Criminal Court, pp. 421–50 at p. 426. Rome Statute, Art. 7(2)(f).
172
Steains, ‘Gender Issues’, p. 368. But, for a somewhat different view, that seems to allow a
contrary interpretation of the text, see Bedont, ‘Gender-Specific Provisions’, pp. 198–9.
173
Kunarac et al. (I T-96-23 and I T-96-23/1-A), Judgment, 12 June 2002, para. 150.
174
Akayesu (I C T R-96-4-T), Judgment, 2 September 1998, para. 325.
175
Ibid., para. 326. See also Delalić et al. (I T-96-21-T), Judgment, 16 November 1998, paras.
477–8.
108 an introduction to the international criminal court

the perpetrator; or (b) of the mouth of the victim by the penis of the per-
petrator’.176 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’.177
Although Article 7 expands the scope of crimes against humanity, in
some respects it may also limit it. For example, the Statute defines perse-
cution 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. However, the words ‘in connection with
any act referred to in this paragraph or any crime within the jurisdiction
of the Court’ narrows its scope considerably. This is a departure from pre-
vious definitions, although it probably reflects recent judicial interpreta-
tions which require acts of persecutions to be ‘of the same gravity or
severity as the other enumerated crimes’ in the provision on crimes
against humanity.178 A Trial Chamber of the Yugoslav Tribunal said that,
‘although the Statute of the I C C may be indicative of the opinio juris of
many States, Article 7(1)(h) is not consonant with customary interna-
tional law’, and rejected in particular the requirement that persecution be
connected with a crime within the jurisdiction of the Court or another
act of crime against humanity as too narrow.179 Yet, by comparison with

176
Furundžija (I T-95-17/1-T), Judgment, 10 December 1998, para. 185.
177
Elements of Crimes, Art. 7(1)(e), para. 1 and n. 15.
178
Kvočka et al. (I T-98-30/1-T), Judgment, 2 November 2001, para. 185; Kupreškić et al.
(I T-95-16-T), Judgment, 14 January 2000, paras. 618–19; Kordić et al. (I T-95-14/2-T),
Judgment, 26 February 2001, paras. 193–5; Kordić et al. (I T-95-14/2-A), Judgment, 17
December 2004, para. 102.
179
Kupreškić et al. (I T-95-16-T), Judgment, 14 January 2000, paras. 579–81. On this issue,
see Mohamed Elewa Badar, ‘From the Nuremberg Charter to the Rome Statute: Defining
the Elements of Crimes Against Humanity’, (2004) 5 San Diego International Law Journal
73 at 125–7.
 jurisdiction 109

earlier interpretations of crimes against humanity, the Appeals Chamber

of the Yugoslav Tribunal has described the provision as ‘expansive’.180
Defining ‘persecution’ perplexed the Rome drafters, with many judging
it to be ambiguous and vague. The result is a compromise. The Elements
of Crimes explain that, in the act of persecution, the perpetrator ‘severely
deprived, contrary to international law, one or more persons of funda-
mental rights’.181 A judgment of the International Criminal Tribunal for
the former Yugoslavia holds that the crime against humanity of persecu-
tion ‘derives its unique character from the requirement of a specific dis-
criminatory intent’.182 The case law has defined persecution as an act or
omission that discriminates in fact and that denies or infringes on a fun-
damental right laid down in international customary or treaty law.183
Where the Rome Statute leaves the door open for some evolution is in
the final paragraph of the list of crimes against humanity, dealing with
‘other inhumane acts’. In the case law of the ad hoc tribunals, concern has
been expressed that ‘this category lacks precision and is too general to
provide a safe yardstick for the work of the Tribunal and hence, that it is
contrary to the principle of the “specificity” of criminal law’.184
According to Professor Kai Ambos, the provision is ‘a classic example of
punishment by analogy in contradiction to the lex stricta requirement
under Article 22(2) of the I C C Statute’.185
The International Criminal Tribunal for the former Yugoslavia has sug-
gested that the legal parameters of ‘other inhumane acts’ be found in a set
of basic rights appertaining to human beings drawn from the norms of
international human rights law. It views ‘other inhumane acts’ as a residual
category, providing crimes against humanity with the flexibility to cover
serious violations of human rights that are not specifically enumerated in
the other paragraphs of the definition, on the condition that they be of
comparable gravity. The examples given by the Tribunal of inhumane acts
not specifically listed in the definition of crimes against humanity in the
Statute of the Yugoslav Tribunal are the forcible transfer of groups of civil-
ians, enforced prostitution and the enforced disappearance of persons.186
180
Blaškić (I T-95-14-A), Judgment, 29 July 2004, para. 148, n. 310.
181
Elements of Crimes, Art. 7(1)(h), para. 1.
182 183
Krnojelac (I T-97-25-T), Judgment, 15 March 2002, para. 436. Ibid.
184
Kupreškić et al. (I T-95-16-T), Judgment, 14 January 2000, para. 563. See also Stakić (I T-
97-24-T), Decision on Rule 98 bis Motion for Judgment of Acquittal, 31 October 2002,
para. 131.
185
Kai Ambos, ‘Remarks on the General Part of International Criminal Law’, (2006) 4
Journal of International Criminal Justice 660 at 670.
186
Kupreškić et al. (I T-95-16-T), Judgment, 14 January 2000, para. 566.
110 an introduction to the international criminal court

In the Akayesu decision, the Rwanda Tribunal used ‘other inhumane

acts’ to encompass such behaviour as forced nakedness of Tutsi
women.187 The Yugoslav Tribunal concluded that the compulsory
bussing of thousands of women, children and elderly persons from
Potocari, in the Srebrenica enclave, consisted of an ‘inhumane act’. Those
being bussed were not told where they were going, some were struck and
abused by Serb soldiers as they boarded the buses, the buses themselves
were overcrowded and unbearably hot, and stones were thrown at them
as they travelled. After disembarking, the victims had to march several
kilometres through a ‘no man’s land’.188
But, under the Rome Statute, the concept of ‘other inhumane acts’ may
actually be narrowed by the addition of the words ‘of a similar character
intentionally causing great suffering, or serious injury to body or to
mental or physical health’. It is open to question whether the acts of
sexual indignity condemned by the Rwanda Tribunal would now fit
within the restrictive language of the Rome Statute. The provision was
criticised by a Trial Chamber of the Yugoslav Tribunal for failing ‘to
provide an indication, even indirectly, of the legal standards which would
allow us to identify the prohibited inhumane acts’.189
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 judg-
ments 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

187
Akayesu (I C T R-96-4-T), Judgment, 2 September 1998.
188
Krstić (I T-98-33-T), Judgment, 2 August 2001, paras. 50–2 and 519.
189
Kupreškić et al. (I T-95-16-T), Judgment, 14 January 2000, para. 565.
 jurisdiction 111

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’.190
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 pro-
hibited purpose. Yet, Article 1 of the Convention Against Torture and
Other Cruel, Inhuman or 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 con-
fession, 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.191 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.192 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.193
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’.194

190
Krstić (I T-98-33-T), Judgment, 2 August 2001, para. 498.
191
Furundžija, Judgment, 17 July 2000, para. 111.
192
Kunarac et al. (I T-96-23 and I T-96-23/1-A), Judgment, 12 June 2002, para. 148.
193
Kvočka et al. (I T-98-30/1-T), Judgment, 2 November 2001, n. 296.
194
On the debate surrounding the term ‘gender’, see Steains, ‘Gender Issues’, pp. 371–5. But,
for a somewhat different view, that seems to allow a contrary interpretation of the text,
see Bedont, ‘Gender-Specific Provisions’, pp. 198–9.
112 an introduction to the international criminal court

Arrest warrants issued to date by the International Criminal Court and

made public include several counts of crimes against humanity.
Specifically, Joseph Kony is charged with the crimes against humanity of
murder (Art. 7(1)(a)), enslavement (Art. 7(1)(c)), sexual enslavement
(Art. 7(1)(g)), rape (Art. 7(1)(g)) and the inhumane acts of inflicting
serious bodily injury and suffering (Art. 7(1)(k)). Vincent Otti is charged
with the crimes against humanity of murder (Art. 7(1)(a)), sexual
enslavement (Art. 7(1)(g)) and the inhumane acts of inflicting serious
bodily injury and suffering (Art. 7(1)(k)). Okot Odhiambo is charged
with murder (Art. 7(1)(a)) and enslavement (Art. 7(1)(c)). Dominic
Ongwen is charged with murder (Art. 7(1)(a)), enslavement (Art.
7(1)(c)) and the inhumane acts of inflicting serious bodily injury and
suffering (Art. 7(1)(k)). And Raska Lukwiya is charged with enslavement
(Art. 7(1)(c)).

War crimes
The lengthiest provision defining offences within the jurisdiction of the
International Criminal Court is Article 8, entitled ‘War crimes’.195 This is
certainly the oldest of the four categories. War crimes have been pun-
ished as domestic offences probably since the beginning of criminal
law.196 Moreover, they were the first to be prosecuted pursuant to inter-
national law. The trials conducted at Leipzig in the early 1920s, as a con-
sequence of Articles 228–230 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.197 And, while

195
Hermann von Hebel and Daryl Robinson, ‘Crimes within the Jurisdiction of the Court’,
in Roy S. Lee, ed., The International Criminal Court: The Making of the Rome Statute:
Issues, Negotiations, and Results, The Hague: Kluwer Law International, 1999, pp. 79–126
at pp. 103–22; Gabriella Venturini, ‘War Crimes’, in Lattanzi and Schabas, Essays on the
Rome Statute, pp. 171–82; Michael Cottier, William J. Fenrick, Patricia Viseur Sellers and
Andreas Zimmermann, ‘Article 8’, in Triffterer, Commentary, pp. 173–288; Peter Rowe,
‘War Crimes’, in Dominic McGoldrick, Peter Rowe and Eric Donnelly, eds., The
Permanent International Criminal Court: Legal and Policy Issues, Oxford and Portland,
O R : Hart Publishing, 2004, pp. 203–32.
196
Leslie C. Green, ‘International Regulation of Armed Conflict’, in M. Cherif Bassiouni,
ed., International Criminal Law, 2nd edn, Ardsley, N Y: Transnational Publishers, 2003,
vol. I, pp. 355–91.
197
Convention Concerning the Laws and Customs of War on Land (Hague IV), 18 October
1907, 3 Martens Nouveau Recueil (3d) 461.
 jurisdiction 113

that instrument had not originally been conceived of as a source of indi-

vidual criminal responsibility, its terms had been the basis of the defini-
tions 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.198

Four years later, in the ‘grave breaches’ provisions of the four Geneva
Conventions of 1949, a second codification was advanced:
wilful killing, torture or inhuman treatment, including biological experi-
ments, wilfully 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 wilfully 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 mili-
tary necessity and carried out unlawfully and wantonly.199

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
198
Agreement for the Prosecution and Punishment of Major War Criminals of the European
Axis, and Establishing the Charter of the International Military Tribunal (I M T ), Annex,
(1951) 82 U N TS 279, Art. 6(c).
199
Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed
Forces in the Field, (1949) 75 U N TS 31, Art. 49; Convention (II) for the Amelioration of
the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea,
(1950) 75 U N TS 85, Art. 50; Convention (III) Relative to the Treatment of Prisoners of
War, (1950) 75 U N TS 135, Art. 129; Convention (IV) Relative to the Protection of
Civilian Persons in Time of War, (1950) 75 U N TS 287, Art. 147. The provision varies
slightly in the four Conventions.
114 an introduction to the international criminal court

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 interna-
tional 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 1993.200 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 interna-
tional 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’.
The text presented to the General Assembly by the International Law
Commission, in 1994, had nothing on war crimes committed in non-
international armed conflict.201 But movement was afoot, and, when it
adopted the Statute of the International Criminal Tribunal for Rwanda in
November 1994, the Security Council recognised the punishability of war
crimes in internal armed conflict.202 The Secretary-General noted that
the Security Council was taking a ‘more expansive approach to the choice
of the applicable law than the one underlying the statute of the Yugoslav
Tribunal’, in that it was including crimes regardless of whether they were
considered part of customary international law and whether customary
international law entailed individual criminal responsibility with respect
to war crimes in non-international armed conflict.203

200
Statute of the International Criminal Tribunal for the former Yugoslavia, U N Doc.
S/R E S /827 (1993), Annex.
201
Report of the International Law Commission on the Work of Its Forty-Sixth Session,
Draft Statute for an International Criminal Court, U N Doc. A/49/10.
202
Statute of the International Criminal Tribunal for Rwanda, U N Doc. S/R E S /955 (1994),
Annex, Art. 4.
203
Report of the Secretary-General Pursuant to Paragraph 5 of Security Council Resolution
955 (1994), U N Doc. S/1995/134, para. 12.
 jurisdiction 115

A year later, in its first major judgment, the Appeals Chamber of the
International Criminal Tribunal for the former Yugoslavia stunned inter-
national lawyers by issuing a broad and innovative reading of the two cat-
egories of war crimes in the Statute of the Tribunal, affirming that
international criminal responsibility included acts committed during
internal armed conflict.204 In Tadić, 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 judicial interpretation was open to criticism as a
form of retroactive legislation. The debate about whether to include war
crimes in non-international armed conflict continued throughout the
drafting of the Statute.205 Eventually, 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 responsibil-
ity for war crimes in non-international armed conflict. The dichotomy is
not entirely resolved, however, because not all war crimes punishable in
international armed conflict are also punishable in non-international
armed conflict. As Pre-Trial Chamber I has noted, the drafters of Article 8
intended that it provide broader coverage with respect to international
armed conflict.206
Article 8 of the Rome Statute is one of the most substantial provisions
in the Statute, and is all the more striking when compared with the rela-
tively laconic texts of the Nuremberg Charter and the Geneva
Conventions. To some extent it represents a progressive development
over these antecedents, because it expressly covers non-international
armed conflicts. Furthermore, several war crimes are defined in consider-
able detail, focusing attention on their forms and variations. Yet such
detailed definition may also serve to narrow the scope of war crimes in
some cases. In the future, judges will have greater difficulty undertaking
the kind of judicial law-making that the Yugoslav Tribunal performed in
the Tadić case, and this will make it harder for justice to keep up with the
imagination and inventiveness of war criminals. Indeed, the Tadić
Appeals Chamber, with its bold initiatives at judge-made law, may well

204
Tadić (I T-94-1-A R 72), Decision on Defence Motion for Interlocutory Appeal on
Jurisdiction, 2 October 1995.
205
E.g., Report of the Ad Hoc Committee on the Establishment of an International Criminal
Court; U N Doc. A/50/22, paras. 74–6; Report of the Preparatory Committee on the
Establishment of an International Criminal Court, vol. I, U N Doc. A/51/22, para. 78.
206
Lubanga (I C C -01/04–01/06), Décision sur la confirmation des charges, 29 January 2007,
para. 284.
116 an introduction to the international criminal court

have frightened States who then resolved that they would leave far less
room for such developments in any statute of a permanent international
criminal court. Of course, the definitions in the Rome Statute can always
be amended, but the process is cumbersome.
The drafters of the Rome Statute drew upon the existing sources of war
crimes law, and these are reflected in the structure of Article 8, although
the law would have been considerably more accessible and coherent had
they attempted to rewrite this complex body of norms in a more simple
form. As it now stands, Article 8 consists of four categories of war crimes,
two of them addressing international armed conflict and two of them
non-international armed conflict. Not only are the specific acts set out in
excruciating detail, but the actual categories impose a difficult exercise of
assessment of the type of armed conflict involved. Courts will be required
to distinguish between international and non-international conflicts,
and this is further complicated by the fact that within the subset of non-
international conflicts there are what initially appear to be two distinct
categories. The judgments of the Yugoslav Tribunal have already shown
just how difficult this task of qualification can be.
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,207 which
probably reflects the fact that it was not always prosecuted with great dili-
gence. 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.’208
As all criminal lawyers know, there is a dark side to detailed codifica-
tion. 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 Kupreškić,

207
See, e.g., the ‘Leiber Code’, Instructions for the Government of Armies of the United
States in the Field, General Orders No. 100, 24 April 1863, Arts. 44 and 47. See also
Theodor Meron, ‘Rape as a Crime under International Humanitarian Law’, (1993) 87
American Journal of International Law 424.
208
Convention (IV) Relative to the Protection of Civilian Persons in Time of War, (1950) 75
U N TS 287, Art. 27.
 jurisdiction 117

the Yugoslav Tribunal warned that ‘[a]n exhaustive categorization would

merely create opportunities for evasion of the letter of the prohibition’.209
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 prosecu-
tions. Much of this was cloaked in arguments about the need for preci-
sion 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’.210
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’.211 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.212
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 perpetrated when there is no

209
Kupreškić et al. (I T-95-16-T), Judgment, 14 January 2000, para. 563.
210
Kunarac et al. (I T-96-23 and I T-96-23/I-A), Judgment, 12 June 2002, para. 67.
211
Hermann von Hebel and Daryl Robinson, ‘Crimes within the Jurisdiction of the Court’,
in Roy S. Lee, ed., The International Criminal Court: The Making of the Rome Statute:
Issues, Negotiations, and Results, The Hague: Kluwer Law International, 1999, pp. 79–126
212
at p. 124. Ibid., pp. 107–8.
118 an introduction to the international criminal court

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’.213
The Elements of Crimes clarify that, while the Prosecutor must estab-
lish the 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 associ-
ated with” ’.214
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 com-
mitted 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.215

213
Tadić (I T-94-1-A R 72), Decision on the Defence Motion for Interlocutory Appeal on
Jurisdiction, 2 October 1995, para. 70. See also Tadić (I T-94-1-T), Opinion and
Judgment, 7 May 1997, (1997) 36 I L M 908; (1997) 112 I L R 1, para. 561; and Aleksovski
(I T-95-14/1-T), Judgment, 25 June 1999, para. 43.
214
Elements of Crimes, Art. 8, Introduction.
215
Kunarac et al. (I T-96-23 and I T-96-23/1-A), Judgment, 22 February 2001, para. 568. See
also Kvočka et al. (I T-98-30-T), Judgment, 2 November 2001, para. 123.
 jurisdiction 119

In Akayesu, the Appeals Chamber of the International Criminal

Tribunal for Rwanda held 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’.216
According to the Appeals Chamber, ‘international humanitarian law
would be lessened and called into question’ if certain persons were exon-
erated from individual criminal responsibility for war crimes under the
pretext that they did not belong to a specific category.217
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 the 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 ship-
wrecked 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 non-
combatants. 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 characterised by the Latin phrase aut dedere aut judicare, meaning
‘extradite or prosecute’.

216
Akayesu (I C T R-96-4-A), Judgment, 2 September 1998, paras. 640–3.
217
Akayesu (I C T R-96-4-A), Judgment, 1 June 2001, para. 443.
120 an introduction to the international criminal court

The ‘grave breaches’ of the 1949 Conventions are limited in scope.

According to the fourth or ‘civilian’ Convention, grave breaches consist of:
wilful killing, torture or inhuman treatment, including biological experi-
ments, wilfully 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 wilfully 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 mili-
tary necessity and carried out unlawfully and wantonly.218

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.219 The chapeau describes grave
breaches as acts committed ‘against persons or property protected under
the provisions of the relevant Geneva Convention’. There are no signifi-
cant changes in the wording between the provisions of the four
Conventions and the Rome Statute. In the Tadić decision, the Yugoslav
Tribunal held that the grave breaches regime applied only to interna-
tional armed conflict, even though this was not stated in the Tribunal’s
Statute.220 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

218
Convention (IV) Relative to the Protection of Civilian Persons in Time of War, (1950) 75
U N TS 287, Art. 147.
219
The international armed conflict is made explicit in the Elements of Crimes. The
Elements also specify that ‘the term “international armed conflict” includes military
occupation’ (at p. 19, n. 34).
220
Tadić (I T-94-1-A R 72), Decision on the Defence Motion for Interlocutory Appeal on
Jurisdiction, 2 October 1995, para. 80. See also Blaškić (I T-95-14-T), Judgment, 3 March
2000, para. 74. But see the dissenting opinion of Judge Abi-Saab in Tadić, ibid.; Delalić et
al. (I T-96-21-A), Judgment, 20 February 2001, para. 202; dissenting opinion of Judge
Rodrigues in Aleksovski (I T-95-14/1-T), Judgment, 25 June 1999, paras. 29–49; Kordić et
al. (I T-95-14/2-P T ), Decision on the Joint Defence Motion to Dismiss the Amended
Indictment for Lack of Jurisdiction Based on the Limited Jurisdictional Reach of Articles
2 and 3, 2 March 1999.
 jurisdiction 121

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.221
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 victimised.222 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.223 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 ‘wilful killing’, the term used in the
Conventions? And what of ‘appropriation of property’, which must be
carried out not only ‘unlawfully’ but also ‘wantonly’?224 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 préparatoires of the Conventions and constitute the principal
interpretative source thereof.
Although refusing to proceed with an investigation, on the ground that
the acts are not of sufficient gravity, the Prosecutor concluded that there
was a ‘reasonable basis’ (the term used in Articles 15, 18 and 53) that two
grave breaches had been committed by British troops in Iraq following
the 2003 invasion, namely, wilful killing (Art. 8(2)(a)(i)) and torture or

221
Blaškić (I T-95-14-T), Judgment, 3 March 2000, para. 76.
222
Tadić (I T-94-1-A), Judgment, 15 July 1999, paras. 164–6.
223
Elements of Crimes, Art. 8(2)(a)(i), para. 3, n. 33.
224
For the origins of this term, see Mohamed Elewa Bader, ‘Drawing the Boundaries of
Mens Rea in the Jurisprudence of the International Criminal Tribunal for the Former
Yugoslavia’, (2006) 6 International Criminal Law Review 313 at 334–5.
122 an introduction to the international criminal court

inhumane treatment (Art. 8(2)(a)(ii)). He said that information avail-

able to his Office indicated four to twelve victims of wilful killing, and a
‘limited number of victims of inhuman treatment totalling in all less than
twenty persons’.225
The second category of war crimes that is listed in Article 8 of the
Rome Statute is ‘[o]ther serious violations of the laws and customs
applicable in international armed conflict, within the established frame-
work 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 gen-
erally defined as ‘Hague law’, because these are principally drawn from
the Regulations annexed to the 1907 Hague Convention IV.226 The other
important source of law is Additional Protocol I to the Geneva
Conventions, which was adopted in 1977, and whose application is con-
fined to international armed conflicts.227 Additional Protocol I 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 para-
graph (a) of Article 8(2), but it does not include all of them.228 Nor does
Article 8(2)(b) include all serious violations of Additional Protocol I. In
Galić, Judge Schomburg of the Yugoslav Tribunal’s Appeals Chamber
argued that ‘spreading terror among the civilian population’, which is
prohibited by Article 51(2) of Additional Protocol I, was not a war crime
at customary international law, on the grounds that no such crime had
been included in Article 8(2)(b) of the Rome Statute.229
Unlike the four Geneva Conventions, which have benefited from near-
universal ratification, Additional Protocol 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’ and other
serious violations. Additional Protocol I applies to a somewhat broader
range of conflicts than the four Geneva Conventions, and the Prosecutor
225
‘Letter of Prosecutor dated 9 February 2006’ (Iraq), p. 8.
226
Convention Concerning the Laws and Customs of War on Land (Hague IV), 3 Martens
Nouveau Recueil (3d) 461.
227
Protocol Additional to the 1949 Geneva Conventions and Relating to the Protection of
Victims of International Armed Conflicts, (1979) 1125 U N TS 3.
228
For example, unjustifiable delay in repatriation of prisoners of war or civilians
(Additional Protocol I, Art. 85(4)(b)) or apartheid (Additional Protocol I, Art. 85(4)(c)).
229
Galić (I T-98-29-A), Separate and Partially Dissenting Opinion of Judge Schomburg, 30
November 2006, para. 20.
 jurisdiction 123

might well argue before the International Criminal Court that the spe-
cific provisions in Article 8 derived from Additional Protocol I can be
committed in ‘armed conflicts which peoples are fighting against colonial
domination and alien occupation and against racist regimes in the exer-
cise of their right of self-determination’.230
There is no requirement under Article 7(2)(b), unlike the situation for
‘grave breaches’ under Article 7(2)(a), that the victims be ‘protected
persons’. Indeed, the overall focus of Hague law is on combatants them-
selves 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.
The term ‘within the established framework of international law’ is a
bit mysterious. One of the main commentaries on the Statute confines
itself to the observation that these words are ‘unclear’,231 while the other
is entirely silent on the matter.232 At the time of ratification of the Rome
Statute, the United Kingdom formulated a declaration:
The United Kingdom understands the term ‘the established framework of
international law’, used in article 8(2)(b) and (e), to include customary
international law as established by State practice and opinio iuris. In that
context the United Kingdom confirms and draws to the attention of the
Court its views as expressed, inter alia, in its statements made on ratifica-
tion of relevant instruments of international law, including the Protocol
Additional to the Geneva Conventions of 12th August 1949, and relating to
the Protection of Victims of International Armed Conflicts (Protocol I) of
8th June 1977.

230
Additional Protocol I, Art. 1(4).
231
William J. Fenrick, ‘Article 8’, in Otto Triffterer, ed., Commentary on the Rome Statute of
the International Criminal Court, Observers’ Notes, Article by Article, Baden-Baden:
Nomos Verlagsgesellschaft, 1999, pp. 173–288 at p. 185.
232
Michael Bothe, ‘War Crimes’, in Antonio Cassese, Paola Gaeta and John R. W. D. Jones,
eds., The Rome Statute of the International Criminal Court: A Commentary, vol. I, Oxford:
Oxford University Press, 2002, pp. 379–426 at pp. 395–7.
124 an introduction to the international criminal court

The United Kingdom was particularly concerned about reaffirming

certain positions taken at the time of ratification of Additional Protocol I,
namely, its view that nuclear weapons are not prohibited, and its right to
take reprisals against States that violate norms of international humani-
tarian law. The declaration is also a reaction to the consequences of a
finding by the International Criminal Tribunal for the former Yugoslavia
on the subject of reprisals.233
In addition to those provisions reflecting the terms of the Hague
Regulations and Additional Protocol I, 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 concern-
ing the protection of humanitarian or peacekeeping missions234 and
prohibiting environmental damage.235 Probably the most controversial
provision was subparagraph (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.236 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 had
voted 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.237 But including transfer of a

233
Kupreškić et al. (IT-95-16-T), Judgment, 14 January 2000, para. 527. In reaction to the
decision, the United Kingdom military manual reads: ‘[T]he court’s reasoning [in
Kupreškić] is unconvincing and the assertion that there is a prohibition in customary law
flies in the face of most of the state practice that exists. The UK does not accept the posi-
tion as stated in this judgment.’ United Kingdom Ministry of Defence, The Manual of Law
of Armed Conflict, Oxford and New York: Oxford University Press, 2004, p. 421, n. 62.
234 235
Rome Statute, Art. 8(b)(iii). Ibid., Art. 8(b)(iv).
236
Hermann von Hebel and Daryl Robinson, ‘Crimes within the Jurisdiction of the Court’,
in Roy S. Lee, ed., The International Criminal Court: The Making of the Rome Statute:
Issues, Negotiations, and Results, The Hague: Kluwer Law International, 1999, pp. 79–126
at p. 112.
237
‘Israel has reluctantly cast a negative vote. It fails to comprehend why it has been consid-
ered necessary to insert into the list of the most heinous and grievous war crimes the
action of transferring [a] population into occupied territory. The exigencies of lack of
time and intense political and public pressure have obliged the Conference to by-pass
 jurisdiction 125

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 Tadić,
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.
It is a violation of the Statute to launch an intentional attack directed
against civilians, or against civilian objects, or against personnel, installa-
tions, material, units or vehicles involved in a humanitarian assistance or
peacekeeping mission in accordance with the Charter of the United
Nations.238 Responding to communications alleging war crimes commit-
ted by British subjects in Iraq, the Prosecutor focused much of his analysis
on subparagraph (iv) of Article 8(2)(b) which criminalises ‘[i]ntentionally
launching an attack in the knowledge that such attack will cause incidental
loss of life or injury to civilians or damage to civilian objects or widespread,
long-term and severe damage to the natural environment which would be
clearly excessive in relation to the concrete and direct overall military
advantage anticipated’. This addresses what is known colloquially as ‘col-
lateral damage’. The provision is derived from Article 51(5)(b) of
Additional Protocol I. The Prosecutor said that the material concerning
allegations of such illegal attacks was characterised by a lack of informa-
tion indicating clear excessiveness in relation to military advantage and a
lack of information indicating the involvement of nationals of States
Parties. The report notes that ‘[t]he available information suggests that
most of the military activities were carried out by non-States Parties’.239
The use of human shields also finds its first formal criminalisation in
international law. Article 8(2)(b)(xxiii) refers to ‘utilising the presence of
a civilian or other protected person to render certain points, areas or mil-
itary forces immune from military operations’. The provision was cited
by the Appeals Chamber of the International Criminal Tribunal for the
former Yugoslavia as evidence of the prohibition of this practice under
customary international law.240

very basic sovereign prerogatives to which we are entitled.’ ‘U N Diplomatic Conference

Concludes in Rome with Decision to Establish Permanent International Criminal Court’,
U N Press Release L/RO M /22, 17 July 1998, at Explanations of Vote. Also: U N Doc.
A/C O N F.183/S R .9, para. 34. When Israel signed the Statute, on 31 December 2000, it
made a declaration protesting ‘the insertion into the Statute of formulations tailored to
meet the political agenda of certain states’.
238
Rome Statute, Art. 8(2)(b)(i), (ii) and (iii).
239
‘Letter of Prosecutor dated 9 February 2006’ (Iraq), p. 6.
240
Blaškić (I T-95-14-A), Judgment, 29 July 2004, para. 653, n. 1366.
126 an introduction to the international criminal court

Several of the provisions of paragraph (b) deal with prohibited

weapons. These include poison or poisoned weapons, asphyxiating, poi-
sonous or other gases, and bullets that expand or flatten easily in the
human body.241 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 monopolise 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.242 Several delegations argued that the Rome Statute should be
consistent with the advisory opinion of the International Court of
Justice. More generally there was much support for either direct or indi-
rect language that would prohibit nuclear weapons. As a result, the
nuclear powers 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.243 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 poi-
soned arrows and hollow bullets are forbidden yet nuclear, biological and
chemical weapons, as well as anti-personnel land mines, are not.244

241
Roger S. Clark, ‘Methods of Warfare That Cause Unnecessary Suffering or Are Inherently
Indiscriminate: A Memorial Tribute to Howard Berman’, (1998) 28 California Western
International Law Journal 379.
242
Legality of the Threat or Use of Nuclear Weapons (Request by the United Nations General
Assembly for an Advisory Opinion), [1996] I C J Reports 226.
243
Rome Statute, Art. 8(b)(xx).
244
Hermann von Hebel and Daryl Robinson, ‘Crimes within the Jurisdiction of the Court’,
in Roy S. Lee, ed., The International Criminal Court: The Making of the Rome Statute:
Issues, Negotiations, and Results, The Hague: Kluwer Law International, 1999, pp. 79–126
at pp. 113–16. Egypt, upon signing the Statute, made the following declaration: ‘The pro-
visions of the Statute with regard to the war crimes referred to in Article 8 in general and
Article 8, paragraph 2(b) in particular shall apply irrespective of the means by which they
 jurisdiction 127

Replying to communications concerning the use of cluster muni-

tions in Iraq, the Prosecutor recalled that ‘their use per se does not con-
stitute a war crime under the Rome Statute’.245 He stressed that a war
crime could nevertheless be established in the case of the use of cluster
bombs to the extent they are employed in a manner satisfying the ele-
ments of other war crimes. He proposed to consider the use of cluster
munitions within the framework of other provisions of Article 8(2)(b),
which deal with indiscriminate attacks and disproportionate harm to
civilians. He noted that the United Kingdom Ministry of Defence
claimed that nearly 85 per cent of weapons released by its aircraft were
precision-guided, ‘a figure which would tend to corroborate effort to
minimize casualties’.246 It is an odd comment. Article 8(2)(b)(iv) talks
about an intentional attack committed with knowledge of clearly exces-
sive collateral damage. Use of targeted weapons can hardly be a defence
to such a charge.
As with crimes against humanity, the ‘laws and customs of war’ provi-
sion significantly develops the area of sexual offences. The text is essen-
tially new law.247 It prohibits rape, sexual slavery, enforced prostitution,
forced pregnancy, enforced sterilisation or any other form of sexual vio-
lence 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

were perpetrated or the type of weapon used, including nuclear weapons, which are
indiscriminate in nature and cause unnecessary damage, in contravention of interna-
tional humanitarian law.’ New Zealand said something similar, expressly citing the advi-
sory opinion of the International Court of Justice in the Nuclear Weapons case to the
effect that ‘the conclusion that humanitarian law did not apply to such weapons “would
be incompatible with the intrinsically humanitarian character of the legal principles in
question which permeates the entire law of armed conflict and applies to all forms of
warfare and to all kinds of weapons, those of the past, those of the present and those of
the future” ’. See also the statement by Sweden. France, on the other hand, issued a decla-
ration on the same subject at the time of ratification: ‘The provisions of Article 8 of the
Statute, in particular paragraph 2(b) thereof, relate solely to conventional weapons and
can neither regulate nor prohibit the possible use of nuclear weapons nor impair the
other rules of international law applicable to other weapons necessary to the exercise by
France of its inherent right of self-defence, unless nuclear weapons or the other weapons
referred to herein become subject in the future to a comprehensive ban and are specified
in an annex to the Statute by means of an amendment adopted in accordance with the
provisions of articles 121 and 123.’ The United Kingdom was only slightly more circum-
spect, referring to statements that it had made at the time of ratification of humanitarian
treaties that, in effect, reserve the possibility of using nuclear weapons.
245 246
‘Letter of Prosecutor dated 9 February 2006’ (Iraq), p. 5. Ibid., p. 7.
247
Rome Statute, Art. 8(b)(xxii).
128 an introduction to the international criminal court

to use them to participate actively in hostilities. This wording is drawn

from the 1989 Convention on the Rights of the Child248 as well as from
Additional Protocol I.249 The term ‘recruiting’ appeared in an earlier
draft, but was replaced with ‘conscripting or enlisting’ to suggest some-
thing 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.250 Interestingly, the provi-
sion 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.
Thomas Lubanga Dyilo, the first accused person to appear before the
Court, was charged pursuant to these provisions, as well as equivalent
crimes listed in the portions of Article 8 concerning non-international
armed conflict. In the arrest warrant, the charges were phrased in the alter-
native, making a determination of whether the conflict in the Democratic
Republic of Congo was international or non-international of little impor-
tance in the prosecution.251 However, months after the arrest when it
issued the document containing the charges, the Office of the Prosecutor
took the position that the conflict was purely non-international in nature,
and withdrew the charge based upon Article 8(2)(b).252 The Pre-Trial
Chamber disagreed, and reinstated the charges concerning enlistment,
conscription and active use of child soldiers in an international armed
conflict.253
This was not, however, the first international prosecution based on the
relevant provisions in the Rome Statute. The Special Court for Sierra
Leone, parts of whose Statute are derived from Article 8 of the Rome
Statute, including the child soldier offences, has already begun trials for

248
Convention on the Rights of the Child, G A Res. 44/25, Annex, Art. 38.
249
Protocol Additional to the 1949 Geneva Conventions of 12 August 1949, and Relating
to the Protection of Victims of International Armed Conflicts, (1979) 1125 U N TS 3,
Art. 77(2).
250
Hermann von Hebel and Daryl Robinson, ‘Crimes within the Jurisdiction of the Court’,
in Roy S. Lee, ed., The International Criminal Court: The Making of the Rome Statute:
Issues, Negotiations, and Results, The Hague: Kluwer Law International, 1999, pp. 79–126
251
at p. 118. Lubanga (I C C -01/04–01/06), Mandat d’arrêt, 10 February 2006.
252
Lubanga (I C C -01/04–01/06), Document Containing the Charges, Article 61(3)(a), 28
August 2006, para. 7.
253
Lubanga (I C C -01/04–01/06), Décision sur la confirmation des charges, 29 January 2007,
p. 132.
 jurisdiction 129

such crimes. When the Statute of the Special Court for Sierra Leone was
being drafted, in 2000 and 2001, the Secretary-General of the United
Nations opposed reproducing the child soldier enlistment provisions of
the Rome Statute. He said these had a ‘doubtful customary nature’,254 and
that it was preferable to criminalise the acts of ‘[a]bduction and forced
recruitment of children under the age of 15 years’.255 According to the
Secretary-General: ‘While the definition of the crime as “conscripting” or
“enlisting” connotes an administrative act of putting one’s name on a list
and formal entry into the armed forces, the elements of the crime under
the proposed Statute of the Special Court are: (a) abduction, which in the
case of the children of Sierra Leone was the original crime and is in itself a
crime under common article 3 of the Geneva Conventions; (b) forced
recruitment in the most general sense – administrative formalities, obvi-
ously, notwithstanding; and (c) transformation of the child into, and its
use as, among other degrading uses, a “child-combatant”.’256 The Security
Council disagreed, and insisted that Article 4(c) of the Statute of the
Special Court for Sierra Leone be modified ‘so as to conform it to the state-
ment of the law existing in 1996 and as currently accepted by the interna-
tional community’,257 in other words, to the text found in the Rome
Statute.
The Appeals Chamber of the Special Court for Sierra Leone dismissed
a defence challenge arguing that the child soldier provisions should not
apply to acts perpetrated prior to 17 July 1998, on the grounds that they
could not be considered to be part of customary law and that therefore
a prosecution would breach the prohibition of retroactive criminal
punishment (nullum crimen nulla poena sine lege).258 Judge Geoffrey
Robertson preferred the reasoning of the Secretary-General at the time
the Statute was drafted, and issued a dissenting opinion:
It might strike some as odd that the state of international law in 1996 in
respect to criminalisation of child soldiers was doubtful to the U N
Secretary-General but very clear to the President of the Security Council
only two months later. If it was not clear to the Secretary-General and his
legal advisors that international law had by 1996 criminalised the
enlistment of child soldiers, could it really have been any clearer to Chief

254
Report of the Secretary-General on the Establishment of a Special Court for Sierra Leone,
255 256
U N Doc. S/2000/915, para. 18. Ibid., p. 22. Ibid., para. 18.
257
Letter dated 22 December 2000 from the President of the Security Council addressed to
the Secretary-General, U N Doc. S/2000/1234, p. 2.
258
Norman (S C S L-04-14-A R 72(E)), Decision on Preliminary Motion Based on Lack of
Jurisdiction (Child Recruitment), 31 May 2004.
130 an introduction to the international criminal court

Hinga Norman or any other defendant at that time, embattled in Sierra

Leone?259

The terms ‘enlistment’ and ‘conscription’ are employed in the Rome

Statute, rather than ‘recruitment’, which is employed in international
human rights law.260 According to Pre-Trial Chamber I, ‘la “conscription”
et “l’enrôlement” sont deux formes du recrutement, la “conscription” con-
stituant un recrutement forcé tandis que “l’enrôlement” se réfère davan-
tage à un recrutement volontaire’.261 As for ‘active participation’, Pre-Trial
Chamber I said this required a link to the hostilities. Delivery of food to an
air force base, or use of children as domestics in married officers’ quarters,
would not be a punishable crime under this provision.262
The two succeeding categories of war crimes in Article 8, defined in
subparagraphs (2)(c) and 2(e), apply to non-international armed con-
flict, a far more controversial area of international law, at least in an his-
torical sense. As early as 1949, and even before, States were prepared to
recognise international legal obligations, including international crimi-
nal responsibility, arising between them. However, they were far more
hesitant when it came to internal conflict or civil war, which many con-
sidered to be nobody’s business but their own. In the Tadić 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.263
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
259
Norman (S C S L-04-14-A R 72(E)), Dissenting Opinion of Justice Robertson, 31 May
2004, para. 6. Among the authorities Judge Robertson invoked was the opinion stated in
the previous paragraph of this work, describing the child soldier provisions as ‘new law’
(at para. 32).
260
Convention on the Rights of the Child, U N Doc. A/R E S /44/25, Annex, Art. 38(3);
Optional Protocol to the Convention on the Rights of the Child on the Involvement of
Children in Armed Conflicts, U N Doc. A/R E S /54/263, Annex.
261
Lubanga (I C C -01/04–01/06), Décision sur la confirmation des charges, 29 January 2007,
para. 246. The Pre-Trial Chamber endorsed the detailed discussion of the provision in
Norman (S C S L-04-14-A R 72(E)), Dissenting Opinion of Justice Robertson, 31 May
2004.
262
Lubanga (I C C -01/04–01/06), Décision sur la confirmation des charges, 29 January 2007,
para. 262.
263
Tadić (I T-94-1-A R 72), Decision on the Defence Motion for Interlocutory Appeal on
Jurisdiction, 2 October 1995, paras. 100–1. See also Strugar et al. (I T-01-42-P T ),
Decision on Defence Preliminary Motion Challenging Jurisdiction, 7 June 2002, para. 13.
 jurisdiction 131

3 in 1977, by the adoption of Additional Protocol II, were only moder-

ately successful.264 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
Additional Protocol 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 interna-
tional character, but not ‘to situations of internal disturbances and ten-
sions, such as riots, isolated and sporadic acts of violence or other acts of
a similar nature’. But the Additional Protocol II crimes listed in para-
graph (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’. The
slight difference between these two thresholds has been a matter of con-
siderable debate, and the better view would seem to be that there are no
material distinctions between them.265 According to Theodor Meron:
The reference to protracted armed conflict was designed to give some satis-
faction to those delegations that insisted on the incorporation of the higher
threshold of applicability of Article 1(1) of Additional Protocol II. It may
be noted that this language tracks language contained in paragraph 70 of
the Tadić decision on interlocutory appeal on jurisdiction of the I C T Y (2
October 1995). Attempts to interpret protracted armed conflict as recog-
nizing an additional high threshold of application should be resisted.266

264
Protocol Additional II to the 1949 Geneva Conventions and Relating to the Protection of
Victims of Non-International Armed Conflicts, (1979) 1125 U N TS 3.
265
In fact, Art. 8(2)(e) of the Rome Statute appears to be slightly broader than Additional
Protocol II, in requiring that the conflict be ‘protracted’, whereas the Protocol requires
rebels to control territory. However, the two thresholds in the Statute concerning non-
international armed conflict, described in subparagraphs (2)(d) and (f), do not have any
material differences. I am grateful to Anthony Cullen, one of my PhD students, for explain-
ing this to me. Pre-Trial Chamber I appeared to take this approach in Lubanga (ICC-
01/04–01/06), Décision sur la confirmation des charges, 29 January 2007, paras. 229–37.
266
Theodor Meron, ‘Crimes under the Jurisdiction of the International Criminal Court’, in
Herman von Hebel, Johan G. Lammers and Jolien Schukking, eds., Reflections on the
International Criminal Court: Essays in Honour of Adriaan Bos, The Hague: T. M. C.
Asser,1999, pp. 47–56 at p. 54. Also: Michael Bothe, ‘War Crimes’, in Antonio Cassese,
132 an introduction to the international criminal court

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 Additional
Protocol 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 punish-
able acts consist of murder, mutilation, cruel treatment and torture, out-
rages 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 con-
tained in common Article 3 are the ‘quintessence’ of the humanitarian
norms contained in the Geneva Conventions as a whole. They ‘also con-
stitute 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” ’.267
The crimes listed in paragraph (e) are largely drawn from Additional
Protocol 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 Additional Protocol II
are included in Article 8 of the Statute.268 A detailed codification of sexual

Footnote 267 (cont.)

Paola Gaeta and John R. W. D. Jones, eds., The Rome Statute of the International Criminal
Court: A Commentary, vol. I, Oxford: Oxford University Press, 2002, pp. 379–426 at p. 423.
267
Delalić et al. (I T-96-21-A), Judgment, 20 February 2001, para. 140.
268
For a discussion on these omissions in the sessions of the Preparatory Committee, see
Christopher Keith Hall, ‘The Fifth Session of the U N Preparatory Committee on the
 jurisdiction 133

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. It has an
equivalent provision in Article 8(2)(b), making the norm seamless as far
as any distinction between international and non-international armed
conflict might be argued by a future accused. The crime has been invoked
in the first case to proceed before the Court, where the accused is charged
in the alternative under the two provisions.269 A number of offences
concern the conduct of belligerents amongst themselves that echo the
provisions applicable to international armed conflict.
In addition to the Lubanga prosecution for enlistment, conscription
and active use of child soldiers, the arrest warrants issued so far by the
Court contain several counts of war crimes alleged to have been commit-
ted in non-international armed conflict. These relate to the civil war
in northern Uganda. Joseph Kony was charged with murder (Art.
8(2)(c)(i)), cruel treatment of civilians (Art. 8(2)(c)(i)), intentionally
directing an attack against a civilian population (Art. 8(2)(e)(i)), pillag-
ing (Art. 8(2)(e)(v)), inducing rape (Art. 8(2)(e)(vi)), and the forced
enlisting of children (Art. 8(2)(e)(vii)). Vincent Otti was charged with
murder (Art. 8(2)(c)(i)), cruel treatment of civilians (Art. 8(2)(c)(i)),
intentionally directing an attack against a civilian population (Art.
8(2)(e)(i)), pillaging (Art. 8(2)(e)(v)) and the forced enlisting of children
(Art. 8(2)(e)(vii)). Okot Odhiambo was charged with murder (Art.
8(2)(c)(i)), intentionally directing an attack against a civilian population
(Art. 8(2)(e)(i)), pillaging (Art. 8(2)(e)(v)) and the forced enlisting of
children (Art. 8(2)(e)(vii)). Dominic Ongwen and Raska Lukwiya are
charged with cruel treatment of civilians (Art. 8(2)(c)(i)), intentionally
directing an attack against a civilian population (Art. 8(2)(e)(i)) and pil-
laging (Art. 8(2)(e)(v)).

Aggression
It was principally the non-aligned countries who insisted that aggression
remain within the jurisdiction of the Court. These States pursued a ‘com-
promise on the addition of aggression as a generic crime pending the

Establishment of an International Criminal Court’, (1998) 92 American Journal of

International Law 331 at 336; and Christopher Keith Hall, ‘The Third and Fourth Sessions
of the U N Preparatory Committee on the Establishment of an International Criminal
Court’, (1998) 92 American Journal of International Law 124.
269
The Lubanga prosecution for enlistment of child soldiers is discussed earlier in this
section, under international armed conflict.
134 an introduction to the international criminal court

definition of its elements by a preparatory committee or a review confer-

ence at a later stage’.270 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.271 This provoked much discontent among the delegates, and
forced the Bureau to reconsider the matter.272 Literally on the final day of
the conference, agreement was reached that authorises the Court to exer-
cise jurisdiction over aggression once the crime is defined and its scope
designated in a manner consistent with the purposes of the Statute and
the ideals of the United Nations. Article 5(1)(d) of the Statute lists ‘the
crime of aggression’ as one of four crimes within the jurisdiction of the
Court. But it must be read with paragraph (2) of that provision:
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.

Prosecutions for ‘crimes against peace’, a more ancient term used to

describe the concept of aggression, were undertaken at Nuremberg and
Tokyo.273 During the Rome Conference, both German and Japanese dele-
gations insisted that aggression be included, expressing bewilderment
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.274 In

270
Terraviva, 13 July 1998, No. 21, p. 2; U N Press Release L/RO M /16, 13 July 1998.
271
U N Doc. A/C O N F.183/C.1/L.59.
272
See, e.g., UN Doc. A/C O N F.183/C.1/SR.33, para. 17 (Movement of Non-Aligned
Countries), para. 29 (Syria), para. 63 (Ghana), para. 73 (Germany); UN Doc.
A/C O N F.183/C.1/SR.34, para. 9 (Trinidad and Tobago), para. 43 (Azerbaijan), para. 54
(Southern African Development Community), para. 61 (Iran), para. 68 (Cuba), para. 72
(Jordan), para. 94 (Sudan), para. 98 (Poland); UN Doc. A/C O N F.183/C.1/SR.35, para. 1
(Egypt), para. 10 (Greece), para. 12 (Nigeria), para. 18 (Tunisia), para. 29 (Afghanistan),
para. 30 (Algeria), para. 33 (Indonesia), para. 47 (Tanzania), para. 57 (Qatar), para. 58
(Philippines), para. 64 (Iraq), para. 70 (Mozambique), para. 83 (Madagascar); UN Doc.
A/C O N F.183/C.1/SR.36, para. 9 (Angola), para. 11 (Congo), para. 19 (Oman), para. 27
(Malta), para. 32 (Zimbabwe), para. 38 (Bolivia), para. 45 (Cameroon).
273
See Historical Review of Developments Relating to Aggression, U N Doc. P C N I C C /
2002/S G C A /L.1 and Add.1.
274
Report of the Ad Hoc Committee on the Establishment of an International Criminal
Court, U N Doc. A/50/22, paras. 63–71; Report of the Preparatory Committee on
the Establishment of an International Criminal Court, U N Doc. A/51/22, vol. I,
paras. 65–73.
 jurisdiction 135

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 defini-
tion was eventually adopted, by the General Assembly in the early
1970s.275 Nevertheless, the General Assembly resolution was not designed
as an instrument of criminal prosecution, although it provides a useful
starting point in the question for definition of ‘the crime of aggression’.276
Because it had been prosecuted successfully at Nuremberg and Tokyo,
there can be no doubt that the crime of aggression forms part of custom-
ary international law. In 2003, in his opinion to British Prime Minister
Tony Blair on the legal issues involved in invading Iraq, Attorney General
Goldsmith warned of possible prosecution for the crime of aggression,
which he recalled was recognised customary international law and which
therefore automatically formed part of the country’s domestic law.277 The
British House of Lords, in R. v. Jones, later confirmed that the crime of
aggression formed part of customary international law.278
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. Its work was
then continued by the Special Working Group on the Crime of
Aggression, which was set up under the authority of the Assembly of
States Parties, with a view to preparing proposals well ahead of the 2009
Review Conference. The Coordinator of the Working Group issued a
paper in 2002 setting out the parameters of the issue, and it has framed
the debate since then.279 The Working Group has held inter-sessional
meetings at Princeton University, in the United States, convened by
Liechtenstein, as well as regular meetings in conjunction with the annual
sessions of the Assembly of States Parties. There are a number of complex
issues, including the definition to be adopted, the role of the United
Nations and more particularly the Security Council, and the relevance of
other provisions of the Statute concerning issues such as complicity in
prosecutions for the crime of aggression.

275
G A Res. 3314.
276
Lyal S. Sunga, ‘The Crimes within the Jurisdiction of the International Criminal Court
(Part II, Articles 5–10)’, (1998) 6 European Journal of Crime, Criminal Law and Criminal
Justice 61 at 65.
277
Lord Goldsmith, Attorney General, ‘Iraq: Resolution 1441’, 7 March 2003, para. 34.
278
R. v. Jones et al. [2006] U K H L 16.
279
Discussion paper proposed by the Coordinator, U N Doc. P C N I C C /2002/WG C A /
RT.1/Rev.2.
136 an introduction to the international criminal court

With respect to the definition, there are two main schools of

thought.280 One favours a generic text, while the other advocates a spe-
cific approach, through the use of an illustrative list as is the formula-
tion in General Assembly Resolution 3314 (XXIX). Those proposing a
specific approach argue that a detailed list will be clearer, and respond to
imperatives of legal certainty in a manner consistent with the other def-
initions, set out in Articles 6–8 of the Statute. They contend that this is a
requirement of Article 22 of the Statute. The generic approach is said to
be more pragmatic, in that it acknowledges the impossibility of captur-
ing all instances to which the crime of aggression might be applied.
Some suggest that the answer may lie in a combination of the two, ana-
logous to the definition of crimes against humanity in Article 7 of the
Rome Statute. One proposal would refine the concept of ‘crime of
aggression’ by using the term ‘war of aggression’, but the prevailing
view seems to be that this is too restrictive. There is also a debate
about whether the result of an act of aggression should be reflected
in the definition, for example by requiring that it lead to military
occupation.281
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’.282
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: ‘The Security Council shall deter-
mine the existence of any threat to the peace, breach of the peace, or act of
aggression’. In the final session of the Rome Conference, the British rep-
resentative said that ‘the United Kingdom interpreted the reference to
aggression in article 5 and, in particular, the last sentence of paragraph 2
of that article, which mentioned the Charter of the United Nations, as a
reference to the requirement of prior determination by the Security
Council that an act of aggression had occurred’.283

280
Definition of Aggression in the Context of the Statute of the I C C , Annex II.A, Doc. I C C -
A S P /4/32.
281
See Informal Intersessional Meeting of the Special Working Group on the Crime of
Aggression, Doc. I C C -A S P /5/SWG C A /I N F.1, paras. 7–50.
282
Hermann von Hebel and Daryl Robinson, ‘Crimes within the Jurisdiction of the Court’,
in Roy S. Lee, ed., The International Criminal Court: The Making of the Rome Statute:
Issues, Negotiations, and Results, The Hague: Kluwer Law International, 1999, pp. 79–126
283
at p. 85. U N Doc. A/C O N F.183/S R .9, para. 51.
 jurisdiction 137

It has often been noted that, although the Security Council’s role in
this issue is uncontested, this does not preclude other bodies from
making such determinations. It would seem, for example, that the
International Court of Justice may make a determination that an act of
aggression has been committed. In his Separate Opinion in the case of
Congo v. Uganda, Judge Bruno Simma wrote:
It is true that the United Nations Security Council, despite adopting a
whole series of resolutions on the situation in the Great Lakes region (cf.
paragraph 150 of the Judgment) has never gone as far as expressly qualify-
ing the Ugandan invasion as an act of aggression, even though it must
appear as a textbook example of the first one of the definitions of ‘this most
serious and dangerous form of the illegal use of force’ laid down in General
Assembly resolution 3314 (XXIX). The Council will have had its own –
political – reasons for refraining from such a determination. But the Court,
as the principal judicial organ of the United Nations, does not have to
follow that course. Its very raison d’être is to arrive at decisions based on
law and nothing but the law, keeping the political context of the cases
before it in mind, of course, but not desisting from stating what is manifest
out of regard for such non-legal considerations. This is the division of
labour between the Court and the political organs of the United Nations
envisaged by the Charter!284

Leaving the Security Council as the arbiter of situations of aggression

implies 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 almost
certainly mean, for starters, that no permanent member of the Security
Council would ever be subject to prosecution for aggression.285
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 considera-
tions. The Security Council is not acting as a court.286
284
Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of the
Congo v. Uganda), 19 December 2005, Separate Opinion of Judge Simma, para. 3. See also
Separate Opinion of Judge Elaraby.
285
Lionel Yee, ‘The International Criminal Court and the Security Council: Articles 13(b) and
16’, in Lee, The International Criminal Court, pp. 143–52 at pp. 144–5. For a discussion of
the two views on aggression, see Daniel D. Ntanda Nsereko, ‘The International Criminal
Court: Jurisdictional and Related Issues’, (1999) 10 Criminal Law Forum 87 at 94–7.
286
Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States),
Merits, [1986] I C J Reports 14 at 290.
138 an introduction to the international criminal court

Several alternatives have been proposed as a means of addressing the

conditions of Article 5(2). One 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 deter-
mination 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.287 One
interesting suggestion contemplates different approaches depending on
the trigger mechanism that is used. If a State Party refers a situation of
aggression, under Article 13(a), it is suggested that this would not require
authorisation from any other body. If the Security Council refers a situa-
tion, under Article 13(b), then there should be no difficulty with Article
39 of the Charter of the United Nations, even if the Council were to
decline to make the determination of aggression itself and leave the task
to the judicial environment of the Court. That leaves only situations that
are triggered by the Prosecutor and that, apparently, continue to trouble
those who are trying to resolve the problem. Even if a body external to the
Court makes a determination of aggression, as a precondition for the
exercise of jurisdiction over the crime, the important issue as to whether
the existence of aggression can still be contested before the Court
remains. The majority seems to favour leaving this question open, so that
the defence may challenge the existence of aggression even if the opposite
is the conclusion of the Security Council or some other body.288
287
Discussion Paper Proposed by the Coordinator, U N Doc. P C N I C C /2002/WG C A /
RT.1/Rev.2 (see Annex III). See generally J. Hogan-Doran and B. T. Van Ginkel,
‘Aggression as a Crime under International Law and the Prosecution of Individuals by the
Proposed International Criminal Court’, (1996) 43 Netherlands International Law Review
321; A. Carroll Carpenter, ‘The International Criminal Court and the Crime of
Aggression’, (1995) 64 Nordic Journal of International Law 237; Matthias Schuster, ‘The
Rome Statute and the Crime of Aggression: A Gordian Knot in Search of a Sword’, (2003)
14 Criminal Law Forum 1; Sylvia A. de Gurmundi Fernandez, ‘The Working Group on
Aggression at the Preparatory Commission for the International Criminal Court’, (2002)
25 Fordham International Law Journal 589.
288
Informal Inter-sessional Meeting of the Special Working Group on the Crime of
Aggression, Doc. I C C -A S P /5/SWG C A /I N F.1, paras. 51–83; The Conditions for the
Exercise of Jurisdiction with Respect to the Crime of Aggression, Doc. I C C -A S P /4/32,
Annex II.C.
 jurisdiction 139

Finally, difficult issues arise with respect to the characterisation of par-

ticipation by individuals in the crime of aggression which remains most
profoundly a ‘crime of state’.289 The application of Article 25 of the Rome
Statute, which deals with the various dimensions of participation in crimes
within the jurisdiction of the Court, seems complex. Other concepts, such
as superior responsibility (Art. 28), seem totally irrelevant in cases of
aggression. There is virtual consensus on defining aggression as a ‘leader-
ship crime’, whose scope is confined to persons who ‘exercise control over
or direct the political or military action of a State’. This might have the con-
sequence of excluding accomplices, such as powerful allies of a small State
that would 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 aggres-
sion. 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.290 It would be a shame if the Rome Statute excluded similar
cases of incitement or abetting of aggression, which are ordinarily punish-
able with respect to the other crimes within the Court’s jurisdiction. But
confining prosecutions to leaders in a general sense, be they those of the
State committing the crime or its accomplices, is consistent with existing
policy of the Office of the Prosecutor as well as the preliminary case law of
the Pre-Trial Chambers on the gravity threshold of admissibility.
The issue of temporal jurisdiction of the Court has been discussed
earlier in this chapter. One intriguing issue that does not seem to have
been addressed in the discussions about the crime of aggression is the
date of acts of aggression that may be prosecuted. Assuming that the con-
ditions of Article 5(2) are met at the 2009 Review Conference, or at some
future review conference, it would seem a reasonable interpretation of
the Statute to conclude that the Court would be entitled to prosecute the
acts of aggression committed since 12 July 2002. This results from a literal
interpretation of Article 5, coupled with Article 11(1). Obviously the
Court would not be exercising jurisdiction over the crime of aggression
until after the definition and the other component of Article 5(2) had
been resolved. But, unless the amendment provides that the Court may
only exercise jurisdiction over acts of aggression committed from some

289
The Crime of Aggression and Article 25, Paragraph 3, of the Statute, Doc. I C C -A S P /
4/32, Annex II.B.
290
See Christopher Hitchens, The Trial of Henry Kissinger, New York: Verso Books, 2002.
140 an introduction to the international criminal court

specific date, then the applicable date for the beginning of its jurisdiction
over the crime remains defined by Article 11. In other words, nationals of
States Parties involved in acts of aggression subsequent to 1 July 2002
would be susceptible to prosecution.

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.291 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 convic-
tion. 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 perma-
nent removal from the courtroom and a fine of up to €2,000.292
Regulation 29 of the Regulations of the Court provides:
1. In the event of non-compliance by a participant with the provisions of
any regulation, or with an order of a Chamber made thereunder, the
Chamber may issue any order that is deemed necessary in the interests
of justice.
2. This provision is without prejudice to the inherent powers of the
Chamber.

It is not clear what these inherent powers may be. The subject of inherent
powers of the international criminal tribunals is one of considerable con-
troversy in the case law and the literature.293

291
Rome Statute, Art. 70; Rules of Procedure and Evidence, Rules 162–169 and 172.
292
Rome Statute, Art. 71; Rules of Procedure and Evidence, Rules 170–172.
293
E.g., Kanyabashi (IC T R-96-15-A), Dissenting Opinion of Judge Shahabuddeen, 3 June
1999, p. 17; Nsengiyumva (IC T R-96-12-A), Dissenting Opinion of Judge Shahabuddeen,
3 June 1999; Michael Bohlander, ‘International Criminal Tribunals and Their Power to
Punish Contempt and False Testimony’, (2001) 12 Criminal Law Forum 91.