ICC Statute Research Articles

Editorial

There is no doubt that unfolding international affairs from Libya to Syria, from Afghanistan to Nigeria, are an ongoing source of concern, sympathy and mourning for the fate of victims. Such troubled times also raise complex legal and political issues that need, however, to be addressed conscientiously and soberly by scholarly studies in the area of international criminal law and on administration of justice both at the national and international level. For example, the situation in Libya requires a thorough and wide-ranging discussion on national accountability mechanisms and their relationship with the complementarity principle embedded in the ICC Statute. Events in Syria, on the other hand, raises once again the sceptre of selectivity and double standards relating to UN Security Council referrals to the ICC, while the delays and ambiguity in the situation in the Darfur cases are far from satisfactory. Several arrest warrants in various proceedings before the ICC are still pending, and the lack of any decision by the Prosecutor on, for instance, the Palestinian request under Article 12(b) of the Statute, is perplexing.

Iraq and the case for Australian war crimes trials

This article presents the case for Australian war crimes trials, following Australian participation in the invasion of Iraq and the subsequent deaths of as many as a million Iraqi civilians. It focuses on jus in bello (war crimes) rather than jus ad bellum (just war). The article sets out the argument and rationale that Australian war crimes trials are needed. Having established the necessity, the article identifies two of the principal alleged atrocities for which Australian officials should be held criminally accountable. It details Australian military support for the use of cluster bombs against civilians during the 2003 invasion, and senior Australian military commanders’ responsibility for planning and carrying out multiple purported war crimes during the attack on Fallujah in late 2004. The article recognises that, in order for Australian officials to be prosecuted under the International Criminal Court (ICC), all domestic remedies must be first exhausted. It therefore specifically addresses which Australian laws can be used, with particular emphasis on anti-terrorist legislation passed in 2002 under the Howard Government and the introduction into Australia’s domestic federal criminal legislation offences equivalent to the ICC Statute offences of genocide, crimes against humanity and war crimes. These provide the most applicable legal tools for prosecuting senior Australian officials for war crimes in Iraq.

The Aggression Amendments: Points of Consensus and Dissension

This paper encapsulates remarks made at the Annual Meeting of the American Society of International Law on a panel devoted to considering the new amendments to the ICC Statute adding the crime of aggression to the Court's subject matter jurisdiction. It addresses the interpretive understandings adopted at the Review Conference in Kampala Uganda vis-a-vis the definition of the crime, the negotiations surrounding the crime's jurisdictional regime, and lingering confusion over the way in which the ICC Statute's amendment provisions should apply to the codification of the crime of aggression. The paper argues that the plain language reading of Article 121(5) should govern the question of when states parties are bound by the amendments such that the Court can prosecute the crime when committed by their nationals or on their territories.

The Korean Implementing Legislation on the ICC Statute

This note sets out the main content of the Korean ICC Act. The Republic of Korea enacted and promulgated its implementing legislation of the Rome Statute on 21 December 2007 as Law No. 8719. The main constitutional issues were the question of whether it was at all necessary to enact a piece of implementing legislation and the immunity of the Korean President under Article 84 of the Korean Constitution. The Korean ICC Act incorporates the crime of genocide, crimes against humanity, war crimes, as well as the offences against the administration of justice under the Rome Statute into Korean law. The Act also deals with surrender and legal assistance in criminal matters, but does not contain a provision on the enforcement of sentences.

Prosecuting Aggression: The Consent Problem and the Role of the Security Council

This paper focuses on the conditions which ought to exist before the International Criminal Court can exercise jurisdiction over the crime of aggression. In particular, it addresses (i) whether the Court should be competent to exercise jurisdiction where the alleged aggressor State has either not accepted the amendment on aggression, or is not a party to the ICC Statute and (ii) whether ICC jurisdiction on aggression should be made dependent on the prior approval of the United Nations Security Council. The first issue is referred to here as the “consent problem” and the second the “Security Council problem/issue”.

The Criminalization of Offences against Cultural Heritage in Times of Armed Conflict: The Quest for Consistency

This article undertakes a comparative analysis of the two main international legal instruments providing for offences against cultural property and cultural heritage in times of armed conflict in order to assess existing gaps and lacunas, and to make suggestions on how better to advance the protection of cultural property through international criminal law. The International Criminal Court Statute takes a very retrograde attitude to this kind of crime � which the author calls the civilian-use approach � whereas the Second Protocol to the 1954 Hague Convention on the Protection of Cultural Property in Times of Armed Conflict seems far more innovative, preferring a cultural-value oriented approach. The author concludes that the latter approach is more appropriate and that, at present, the most effective tool for pursuing war crimes against cultural property is Protocol II to the 1954 Hague Convention. It is thus crucial to promote ratification by a large number of states and to encourage states to adopt implementing legislation that may allow domestic judges to prosecute the most serious crimes against cultural heritage on the basis of jurisdictional criteria provided for in Protocol II to the 1954 Hague Convention.

The Aggression Amendments: Points of Consensus and Dissension

This paper encapsulates remarks made at the Annual Meeting of the American Society of International Law on a panel devoted to considering the new amendments to the ICC Statute adding the crime of aggression to the Court's subject matter jurisdiction. It addresses the interpretive understandings adopted at the Review Conference in Kampala Uganda vis-a-vis the definition of the crime, the negotiations surrounding the crime's jurisdictional regime, and lingering confusion over the way in which the ICC Statute's amendment provisions should apply to the codification of the crime of aggression. The paper argues that the plain language reading of Article 121(5) should govern the question of when states parties are bound by the amendments such that the Court can prosecute the crime when committed by their nationals or on their territories.

Some Observations on the Lack of a Specific Diminished Responsibility Defence under the ICC Statute

Investigating the nature of criminality, particularly in the context of ICC core crimes, seems fundamental in a quest to discover the truth and produce an accurate historical record; both of these aims are in the long term interests of justice, the inter-national as well as local communities. Whilst the ICC is based on strong punitive ideals, similar to those endorsed by ICTY and ICTR in particular, the ICC is in a unique position to depart from a merely pragmatic/administrative exploration of facts and history. In fact, in recent prosecutions rehabilitation aims have frequently been substituted with an “attempt to stigmatise the most serious violations of international humanitarian law.”1 The results orientated approach of ICTY/ICTR, which includes, inter alia, charge bargaining in alleged genocide cases, should be departed from in ICC proceedings in favour of more holistic and interdisciplinary justice methods which strive to not only achieve punitive goals but also promote rehabilitation of of-fenders and ultimately reconciliation.

Kenya's Credible Commitment to Keep its Date with the ICC

Louis Moren O'Campo, the ICC Prosecutor has named six Kenyans suspected of committing crimes against humanity. He seeks to have an ICC Pre-Trial Chamber confirm these planned indictments early in 2011. Subsequently, the Kenyan Parliament voted to have Kenya withdraw from the Rome Statute. This vote will not affect the planned indictments since a notification for a country's withdrawal from the Rome Statute would have to have been in place much earlier to stop the investigation and possible indictments. In any event, O'Campo will have no easy task to prove that crimes against humanity were committed in Kenya. Unlike with Kenyan Parliamentarians, the Kenyan public is overwhelmingly in favor of O’Campo proceeding with the prosecutions. At the Hague, these high-ranking Kenyans will have no control over the prosecutor’s case in the same way that Kenya by repeatedly frustrating the establishment of a local tribunal to try post election violence offenders. The moment for accountability for those most responsible for the violence in the highest echelons of the government is best guaranteed at the Hague. This short article argues that there is perhaps no better example exemplifying one of the most credible theories of compliance with international law than the Kenyan government’s commitment to cooperate with the ICC, (that is notwithstanding the aforesaid Parliamentary vote), since credible domestic prosecutions are a near impossibility. In short, weak domestic institutions are anchored or backed up by international institutions as an alternative. The only other possible explanation is that when Kenya ratified the Statute of the ICC, it did not believe that its own leading politicians would land before the ICC. Yet, the evolving scenario so far suggests that the intended prosecutions not only make up for the inability of Kenya to have its own credible ones, but will also likely help Kenya avoid future violence and to consolidate a durable peace. Clearly, there are outcomes that cannot easily be achieved in the absence of treaties and it seems Kenya’s ratification of the ICC statute, Parliament's subsequent enactment of implementing legislation and the incorporation of international law as a source of Kenyan law in the widely ratified 2010 Constitution, clearly foreswore Kenya to resort to the ICC in the event of the kind of post-election violence following the 2007 General Election.

Expanding Jurisdiction over War Crimes under Article 8 of the ICC Statute

The Review Conference on the International Criminal Court (ICC) held in Kampala in June 2010 resulted in the first amendment ever made to the Rome Statute. This historic amendment was, in substance, a rather modest change to the provisions on war crimes--expanding the Court’s jurisdiction over the use of prohibited weapons in international armed conflicts to their use in armed conflicts of a non- international character. The amendment was relatively uncontroversial because the language to be added to Article 8, and the accompanying elements of the crimes, already existed for international armed conflicts. This language has yet to be interpreted by the ICC, however. The breadth of the Court’s jurisdiction over the newly added crime will likely depend on how broadly the Court will interpret the prohibition on the use of ‘gases’ and the mens rea requirement for each of the crimes. Perhaps most importantly, the Court will have to clearly define where the jurisdictional line between internal law-enforcement activities and armed conflicts should be drawn. Overall, the amendment forms part of a broader movement to reduce or remove the distinctions between the protections available in international and non-international armed conflicts. The process by which the amendment was successfully adopted is also instructive for future efforts to modify the ICC Statute.

Dynamics of influence in international politics: The ICC, BIAs, and economic sanctions

In 2002, the USA asked all countries to sign agreements exempting US citizens from prosecution by the International Criminal Court (ICC) and threatened economic sanctions if they refused. Some countries yielded to this pressure even after ratifying the ICC Statute, while others chose to honor their original commitments. Why were some countries more responsive to US influence than others? This article provides an explanation of state vulnerability to attempts of influence through the lens of economic sanctions. Assessing the success of sanctions is difficult because of the selection bias in the instances of the use of such strategies observed by the researcher. Since all countries were asked to sign such agreements, one can observe exactly which signed, whether sanctions were enforced, and how quickly countries responded to such pressure. Arguments about sources of influence — shared interests, economic and security dependence, and domestic politics — are tested using an original dataset collected on country decisions to sign bilateral immunity agreements (BIAs). The authors find support for some existing explanations, including relative power and the relationship of dependency, while previously held beliefs about alliance and security relationships appear to be less influential on decisions to ratify BIAs. These findings have implications for existing research programs on economic sanctions, international organizations, and power politics.

PROSECUTING ACTS OF TERRORISM AS CRIMES AGAINST HUMANITY UNDER THE ICC TREATY

This article explores the possibility of prosecuting terrorism as crimes against humanity under the ICC treaty. Even-though terrorism is not explicitly mentioned as a crime that falls under the jurisdiction of the International Criminal Court, it can however be adjudicated at the ICC by interpreting it as included in Article 7 of the Rome Statute. Article 7 of the ICC Statute can be used as a legal basis for prosecuting terrorist acts if the acts fulfill the Article’s general requirements. The text of the Rome Statute does not need to be amended in order to encompass acts of terrorism.

Foreword

The Review Conference of the Rome Statute, which took place in Kampala (Uganda) between 31 May and 11 June 2010, certainly has been the highlight of the year 2010 for all those who take an interest in international criminal law. The Conference was prepared through numerous sessions of a Working Group on the Review Conference as well as a Special Working Group on the Crime of Aggression. The Working Group of the Review Conference discussed a substantial number of proposals from various national delegations, including a prohibition on the use of nuclear weapons and the introduction of terrorism and drug trafficking as international crimes. Eventually, only three proposals that were expected to have broad support were presented before the Assembly of States Parties. Of these, two were adopted by consensus. The most impressive and momentous breakthrough at Kampala was the adoption of a definition of the crime of aggression (Article 8bis of the ICC Statute) and an accompanying agreement on the circumstances under which the Court is to exercise its jurisdiction over this crime (Articles 15bis and 15ter ICC Statute). Although application of the greater part of the new provisions requires yet another affirmative vote of the Assembly of States Parties in 2017, the groundwork has been laid for what many observers had previously regarded as a highly improbable achievement towards the protection of peace through international criminal law. In this issue of the Journal, Claus Kreß, who was substantially involved in preparing and negotiating the breakthrough of Kampala, together with his co-author Leonie von Holtzendorff, gives a comprehensive insider’s account of the way toward the compromise and of the contents of the new articles of the Statute.

The Palestinian Declaration and the Jurisdiction of the International Criminal Court

The Declaration made by the Palestinian Authority on 21 January 2009 whereby Palestine agrees to the exercise of jurisdiction by the International Criminal Court for crimes committed in Palestinian territory since 1 July 2002, raises several interesting issues of international law. However, according to the author, the Court must not engage with all such issues, which are indeed extremely broad in scope; in particular, the Court should refrain from pronouncing in abstracto on the issue of whether or not Palestine is a state under international law. On the contrary, the Court should resort to a functional interpretation of the ICC Statute and limit itself to ascertaining whether the conditions required for the Court to exercise jurisdiction are met in the present case. The author argues that these conditions are indeed met.

The Prosecution of Gender-based Crimes at the ICC: Challenges and Opportunities

AbstractThe ICC statute incorporates a mandate to implement gender-sensitive measures in its structures and procedures, but trials in progress at present demonstrate that the ICC faces considerable challenges in tackling gender-based crimes consistently. The current Article discusses the fact that gender-based crimes are still under-investigated, under-prosecuted and remain the least condemned crime. In the face of considerable difficulties, not least the absence of guidance on the implementation of its statute in this regard and its limited resources, the ICC must make a firm commitment to the prosecution of gender-based crimes. The Article concludes with an analysis of three specific areas: (i) the necessity for the establishment of institutional arrangements for decision-making about prosecutions and investigations; (ii) the necessity for Member States to demonstrate commitment that such crimes will not be tolerated and (iii) the necessity for gender-based crimes to be expressly identified as international crimes.

Business Leaders and the Modes of Individual Criminal Responsibility under International Law

The article tries to provide an overview of possible modes of individual criminal responsibility for business leaders with regard to typical business activities. Particular attention will be paid to aiding and abetting or otherwise assisting in a crime as this is arguably the most important mode of criminal responsibility business leaders may be faced with in future. Contested issues like the subjective requirements of accomplice liability under Article 25(3)(c) ICC Statute (including evidentiary strategies for proving the mental element) and the determination of objective limits for criminal responsibility will be discussed. Contributing to a crime by a group of persons acting with a common purpose according to Article 25(3)(d) ICC Statute provides another important mode of criminal responsibility of which business leaders have to be aware. As that provision is — arguably — simultaneously referring to the rare yet not impossible ‘hard core’ scenario of a business leader being a party to a common purpose joint criminal enterprise, this form will also briefly be discussed. Finally, the discussion on superior responsibility will result in a warning against (further) loosening the effective control test.

In Defence of Functional Interpretation of Article 12(3) of the Rome Statute: A Response to Yael Ronen

In an article published in the Journal, Yaël Ronen considered the 21 January 2009 declaration by the Palestinian National Authority (PNA) recognizing the International Criminal Court’s (ICC) jurisdiction over the events which took place in Gaza in 2008–2009, to persuasively argue that the ICC Prosecutor would be ill-advised to assume jurisdiction over the alleged crimes committed by Israel in Gaza by virtue of the PNA’s lack of statehood. In this brief response, the author advocates a more functional approach to Article 12(3) of the ICC Statute than that taken by Dr Ronen, contending that at the least it allows ‘quasi-states’ with international legal personality to seek the ICC’s delegation-based jurisdiction over criminal matters within a territory over which they have recognized authority. At the same time, however, the ability of quasi-states such as the PNA, to delegate authority to an international organization may be fatally circumscribed by instruments that facilitated their creation. The Oslo Accords, which created the PNA, denied it jurisdiction over Israelis and seriously restricted its ability to conduct foreign relations. Acceptance of jurisdiction by delegation must respect these inherent limitations, both conceptually and as a practical matter. Thus the author reaches a similar, although not identical, conclusion to that reached by Dr Ronen, albeit based on a very different reading of Article 12(3) of the ICC Statute.

The Rights of Victims v. the Rights of the Accused

For too long victims have been neglected in international criminal law; with the adoption of the International Criminal Court (ICC) Statute they have, however, been granted a set of procedural rights that entitles them to some form of participation in international criminal proceedings. Arguably there is nothing prejudicial per se to the rights of the accused in allowing victims to participate in international criminal proceedings. Unfortunately, however, the ambiguities of the ICC Statute, the lack of clarity as to the procedural model, and the absence of clear cut provisions in the ICC Rules of Procedure and Evidence (RPE) have created a legal framework which is flawed with regard to the principle of legal certainty and, at least in this respect, clearly amounts to a violation of the rights of the accused. Against this background, the judges are solely responsible for finding the appropriate way to enable some measure of victim participation consistent with the rights of the accused. According to the Statute, any balancing between these two competing interests must be premised on the primacy of the rights of the accused. The practice of ICC Chambers, however, suggests that the judges are hesitant explicitly to recognize the primacy of such rights. This reluctance may lead in some instances (e.g. the broad definition of victims; permission for the presentation of evidence by victims; the acceptance of the double status as victim and as witness; and so on) to weaken the protection of the rights of the accused due to a mistaken interpretation of the right of victims to obtain justice.

Foreword

The recognition in the Statute of the International Criminal Court (ICC) and that of other internationalized criminal tribunals, of victims, not just as witnesses or mere observers, but as participants in the proceedings was without doubt a momentous advance in the field of international criminal law. It marked a shift, not just of a view towards the victims, but in the nature of the proceedings as had been practiced thus far before international criminal tribunals. The regime adopted by the ICC, and latterly copied in part by other tribunals in relation to victim’s participation, is the promise of justice for, not just with, the victims. Prior to the signing of the Rome Statute, victims had either been ignored altogether by international criminal tribunals or their role restricted to the status of witnesses. In that capacity, victims were dependent on the prosecution’s strategies and on its decision to make them a part of its case. The practical effect of the ICC Statute's victims’ provisions, and other similar regimes, is effectively to liberate victims from the tutelage of the parties to the proceedings and might augur the end of what has sometimes been perceived as their instrumentalization of victims. After the ICC, victims are to be actors in a process in which they can play an important part, not just a passive evidential supporting role as had been assigned to them.

Canada's Crimes against Humanity and War Crimes Act on Trial: An Analysis of the Munyaneza Case

Canada was the first state to adopt implementing legislation following its ratification of the ICC Statute. Adopted in 2000, the Crimes against Humanity and War Crimes Act was tested for the first time in the Munyaneza case. In May 2009, Mr Munyaneza was convicted on all counts of genocide, crimes against humanity and war crimes and, in October, was sentenced to life imprisonment. The first case under the Act provides an opportunity to reflect on certain issues that will have an impact on Canada’s ability to effectively contribute to the enterprise of international criminal justice. This article focuses on two such issues that were relevant to the Munyaneza case, namely the definitions of offences, which rely heavily on customary international law and on the ICC Statute, and the sentencing scheme provided by the Act.