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The Rome Statute of the International Criminal Court - A Commentary edited by Cassese, Antonio; Gaeta, Paola; Jones, John RWD (25th July 2002)

Volume II, s.9 Application and Impact of the Rome Statute, 48 ICC Statute and Third States

Gennady M. Danilenko

From: The Rome Statute of the International Criminal Court

Edited By: Professor Antonio Cassese, Professor Paola Gaeta, Mr John R.W.D. Jones

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: null; date: 20 August 2019

Subject(s):
Crimes against humanity — Genocide — War crimes — Nullum crimen sine lege — International courts and tribunals, procedure — Jurisdiction — Immunity from jurisdiction, ratione materiae

(p. 1871) 48  ICC Statute and Third States

I. Possible Effects of the Rome Statute on Third States

As an international treaty, the Rome Statute binds the Contracting States only. The sovereign equality of States excludes any automatic effect of treaties on third States which remain for them res inter alios acta. According to the general rule of international law, codified in Article 34 of the Vienna Convention on the Law of Treaties,1 ‘a treaty does not create either obligations or rights for a third state without its consent.’ The general rule pacta tertiis nec nocent nec prosunt is supported, as the International Law Commission has observed, by ‘almost universal agreement’.2 However, the pacta tertiis principle does not mean that treaties may not have certain indirect effects on non-Party States. Practice suggests that multilateral treaty arrangements often create legal and political realities that could in one way or another affect political and legal interests of third States and impose certain (p. 1872) constraints on the behaviour of non-Parties. These constraints may result not from imposition of legal obligations upon third States, but from the fact that a large portion of the international community adopts, in conformity with international law, a decision to deal with contemporary problems of community concern by creating appropriate institutions and procedures.

The Rome Statute is a special treaty because it is a constituent instrument of a new international organization. It envisions the establishment of a powerful permanent institution that will exercise jurisdiction over nationals of numerous countries for the most serious crimes of international concern. The general rule that only parties are bound by the treaty also applies to the constituent instruments of international organizations. However, the creation of international organizations always affects even non-Member States. These States may find it difficult to ignore the ICC.

Under the Rome Statute, the ICC will have jurisdiction with respect to the crime of genocide, crimes against humanity, war crimes, and the still-undefined crime of aggression. In certain instances the ICC will be able to assert its jurisdiction even with respect to nationals of third States. Although only nationals of third States, and not the third States themselves, will be defendants before the ICC, it is obvious that the activities of the new institution will implicate vital legal interests of non-Member States. The creation of the ICC, which is authorized to exercise jurisdiction over numerous individuals around the world, means that it will affect an essential element of State sovereignty, namely criminal jurisdiction of all States over their nationals. Once established, the ICC will also affect all States’ governmental structures and decision-making processes.

The Rome Statute may have additional effects on third States. The Statute includes elaborate definitions of the most serious crimes of concern to the international community as a whole. To the extent that these definitions restate pre-existing international law, they may be applicable to all international actors without exception. Substantive criminal law innovations introduced by the Rome Statute may also generate new customary law. If there is a general and uniform State practice supporting new principles and rules laid down by the Rome Statute accompanied by the relevant opinio juris, they may pass into the corpus of generally binding customary law. As a permanent institution, the ICC will also contribute to further clarification and even elaboration of the elements of these crimes. These developments will also have at least an indirect effect on third States.

The establishment of a permanent international criminal court will have a far-reaching effect on State cooperation in criminal matters and on domestic enforcement of international criminal law. From a purely legal perspective, this effect will not result from the Rome Statute itself. Rather, the changes are likely to occur as a (p. 1873) result of the activities of the ICC as an international institution. It appears that no State will be able to ignore the impact of these developments.

II. The Rome Statute as a Constitutive Instrument of an International Institution

Because the Rome Statute envisions the creation of a new global institution, it has acquired the status of a constitutive instrument of an international organization. The Contracting Parties have expressly conferred international legal personality on the ICC (Article 4). Under the law of treaties, the legal personality of the ICC operates only vis-à-vis Member States. Third States are not legally bound by it because for them Article 4 of the Statute is res inter alios acta.

However, the creation of a universal public body cannot be totally ignored by third States. First, the express provision of the Rome Statute conferring on the ICC legal personality in international law means that non-Member States would not have any doubts about the ICC’s competence to perform international acts. Secondly, and more importantly, the Rome Statute establishes an objective legal personality of the ICC that could be asserted even with respect to non-Members. In the 1949 Reparation for Injuries advisory opinion, the International Court of Justice found that ‘fifty states, representing the vast majority of the members of the international community, had the power, in conformity with international law, to bring into being an entity possessing objective international personality, and not merely personality recognized by them alone.’3

The Court’s pronouncement makes it clear that in cases of universal international organizations non-Member States cannot claim that for them they had no legal existence. In the Reparation for Injuries case the International Court of Justice was not asked to indicate precisely how many States are required to endow international organizations with objective personality. Nevertheless, the Court did say that ‘the vast majority of the international community’ had the power to create an entity possessing objective international personality. The Rome Statute was approved by 120 States. The ICC will come into being now that sixty countries have ratified the statute. Although at this stage sixty States do not represent ‘the vast majority of the members of the international community’, third States can hardly treat the ICC as non-existent. When the Rome Statute comes into force and the ICC comes into being, the ICC will be opposable to all States.

(p. 1874) It may be argued that third States should respect the position of a large number of States that created a new international entity. Legal grounds for such an indirect effect of constitutive instruments of international organizations on all States result from different political and legal considerations. The Special Rapporteur of the International Law Commission on the topic of treaty law, Sir G. Fitzmaurice, described the legal grounds for an indirect effect of such treaties in the following way: ‘The “effect” is simply that the third state is called upon to take up a certain attitude towards the treaty and its contents and consequences—an attitude of recognition, respect, non-interference, tolerance, sufferance, as the case may be. The principle of non-intervention could be invoked here. But the duty is really a broader one of respect for valid international acts.’4

Non-Member States may argue that under current international law they have a perfect legal right to refuse formal recognition of new international institutions they dislike. However, Sir G. Fitzmaurice’s suggestions concerning ‘respect’, ‘non-interference’, and ‘tolerance’ must be taken into account by third States. A more complicated issue is the policy of non-recognition of specific powers granted to the ICC, for example the power to carry out criminal investigations, try and convict nationals of all States, including nationals of non-Member States. Refusal to recognize the competence of the ICC in this area amounts to denial of the effected transfer of powers from Member States to the ICC. Under the Rome Statute, State Parties transfer to the ICC their national jurisdiction over grave crimes of international concern. There is no doubt that all States have a sovereign right to determine how to exercise their jurisdiction over crimes committed on their own territory or their recognized jurisdiction over crimes of universal concern. As it will become apparent from the following section, non-Member States have no legal ground to object to the legitimate transfer of existing national powers of Member States to an international judiciary, in particular their power to exercise jurisdiction over grave international crimes.

III. The Jurisdictional Reach of the ICC

The jurisdictional provisions are central to the Rome Statute. They were also the most hotly debated issues in the International Law Commission, in the Preparatory Committees, and during the Rome Conference.

Article 12 of the Rome Statute defines actual preconditions to the exercise of jurisdiction. According to Article 12, the ICC can exercise its jurisdiction only if the state of the territory where the crime was committed or the state of nationality of the accused are parties to the Rome Statute or have accepted the jurisdiction of the (p. 1875) ICC ad hoc with respect to the crime in question. It is important to note that under Article 12 the consent of any of the above States is enough. There is no mandatory consent of the state of nationality of the accused. This means that persons accused of committing the relevant crimes may be subject to prosecution even if the state of their nationality is not a party to the Rome Statute. In addition, Article 12 provides that no consent of the territorial state or the accused’s state of nationality is required in all cases when a situation in which a crime appears to have been committed is referred to the ICC by the Security Council acting under Chapter VII of the UN Charter. Under this provision, the ICC will have jurisdiction even if a crime is committed in non-State Parties by nationals of non-State Parties.

During the negotiations leading to the Rome Statute, the United States supported the referral by the Security Council because, as a permanent member, it would always be able to shield its nationals from the ICC’s prosecution. At the same time, the United States argued that in other situations the consent of the state of the accused’s nationality should be an essential precondition for the ICC’s jurisdiction. In Rome, the United States proposed an amendment requiring the consent of the territorial state and the state of nationality of the accused before the ICC could exercise jurisdiction.5 This proposal was rejected by the Rome Conference. Because the Rome Conference took the view that the position of the accused’s country of nationality is irrelevant, nationals of third States can be tried by the ICC without third States’ ratification of the Rome Statute if the ICC otherwise has jurisdiction.

The jurisdictional reach of the ICC under the Rome Statute encountered strong opposition in the United States. US officials often claim that the jurisdictional scheme of the ICC conflicts with ‘the most fundamental principles of treaty law’ according to which States cannot be bound by a treaty without their consent.6

Four interrelated but analytically distinct questions arise in connection with the ICC’s jurisdictional reach. The first is the nature of the ICC’s jurisdiction under the Rome Statute. The second relates to the power of participating States to exercise universal or treaty-based extraterritorial jurisdiction. The third raises the issue of the legitimacy of the transfer of territorial, universal, or treaty-based (p. 1876) extraterritorial jurisdiction to an international institution. The final issue is the principle of legality or nullum crimen sine lege.

A. The Nature of the ICC’s Jurisdiction

Under Article 12 of the Rome Statute, the ICC can exercise jurisdiction over any alleged conduct only if there is a nexus between such conduct and the state where the crime was committed or the state of the accused person’s nationality, and only if one of these States is a party to the Rome Statute. This means that the Rome Statute does not give the ICC universal jurisdiction. Under the universality principle, the ICC would have been able to try any person suspected of committing grave international crimes, such as genocide or war crimes, wherever the offence takes place and whoever the perpetrator.

This interpretation is supported by the travaux préparatoires. During the Rome Conference, Germany argued that under current international law, all States have universal jurisdiction over crimes defined by the Rome Statute and that the ICC should be in the same position.7 However, the German proposal was rejected. If this approach had been accepted, the ICC would have had jurisdiction over any suspect regardless of whether the territorial state, state of nationality, or any other interested state was a party to the Rome Statute. Any State Party which obtained custody of the putative offender would have been able to transfer the accused to the ICC and the ICC would then have been able to exercise jurisdiction without the consent of other interested states. Regrettably, under the Rome Statute, the ICC will not have jurisdiction over crimes committed by nationals of third States on their own territory. Thus, even when the Rome Statute enters into force, future grave violations of, for example, humanitarian law by national military leaders in situations like Kosovo or Chechnya will not be prosecuted by the ICC if Yugoslavia or Russia did not join the ICC. In contrast, because any individual State has the right to try the same persons according to the principle of universal jurisdiction, the accused, at least in principle, run a much greater risk of being prosecuted for the same crimes by domestic courts in individual members of the international community.

(p. 1877) Under Article 12 of the Rome Statute, the ICC has been granted true universal jurisdiction covering the whole world only when a situation in which a crime appears to have been committed is referred to the ICC by the Security Council acting under Chapter VII of the UN Charter. Only in such a situation would any custodial state have the right and maybe even the obligation to transfer the accused to the ICC. No consent of the territorial state or the accused’s state of nationality would be required.

At the same time, even if the ICC has not been granted universal jurisdiction, the adoption of the Rome Statute will facilitate prosecution of perpetrators of the most serious international crimes by all States. Like numerous other multilateral treaties dealing with crimes of international concern, the Rome Statute provides a treaty basis for the joint exercise of extraterritorial jurisdiction with respect to crimes defined by the Statute. The Rome Statute thus endorses the idea of a treaty-based extraterritorial jurisdiction over crimes of genocide, crimes against humanity, and war crimes.

The opponents of the ICC Statute argue that the ICC’s major jurisdictional problem is its power to try the accused in cases when only the territorial state ratifies the Rome Statute. However, it has long been recognized that any State has an unquestionable right to exercise criminal jurisdiction with respect to all persons within its territory, including non-nationals. The territorial principle has expanded over the years to justify jurisdiction not only over offences that actually take place within a State’s territory, but also where any essential constituent element of a crime or effect of the offence occurs in the territorial state. It is also recognized that in some situations States have the right to exercise jurisdiction over acts on non-nationals committed in foreign countries. While usually there must be a direct and substantial connection to justify a State treating as criminal the conduct of non-nationals taking place in foreign countries, in cases of universal or quasi-universal jurisdiction over grave international crimes, such a connection is not required.

B. Universal and Treaty-Based Extraterritorial Jurisdiction

Article 12 of the Rome Statute expressly bases the ICC’s jurisdiction on the traditional territoriality and nationality principles. At the same time, it envisions international cooperation in extraterritorial exercise of these well-established bases of jurisdiction. By focusing on this cooperation effort, critics of the Rome Statute often claim that it created a form of ‘universal jurisdiction’.8 Even if this (p. 1878) assertion were true, it cannot undermine the legitimacy of the ICC. General international law clearly recognizes the principle of universality. To the extent that the jurisdictional reach of the ICC may be based on the idea that every State has an interest in the prosecution of the most serious international crimes defined by the Rome Statute, namely the crime of genocide, war crimes, and crimes against humanity, the Rome Statute simply reflects contemporary trends and tendencies in international law.

Under the universality principle, any State may assert a claim to arrest, prosecute, and try any person suspected of committing grave international crimes, such as genocide or war crimes, wherever the offence takes place and whoever the victim. Clear examples of universal crimes under modern general international law are genocide and torture. It is beyond any dispute that any State has the right to prosecute perpetrators of genocide because genocide is a universal crime under both the 1948 Genocide Convention9 and general international law. The International Court of Justice stated in the 1996 Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide, that ‘the rights and obligations enshrined in the [Genocide] Convention are rights and obligations erga omnes.’10 The Court also noted that ‘the obligation of each state thus to prevent and to punish the crime of genocide is not territorially limited by the Convention.’11 The International Law Commission has confirmed that universal jurisdiction with respect to the crime of genocide exists as ‘a matter of customary law for those states that are not parties to the [Genocide] Convention’.12 With respect to torture, the Yugoslav Tribunal stated in the Furundžija case that the prohibition of torture ‘has evolved into a peremptory norm or jus cogens’.13 The Tribunal then stated that ‘one of the consequences of the jus cogens character bestowed by the international community upon the prohibition of torture is that every state is entitled to investigate, prosecute and punish or extradite individuals accused of torture, who are present in a territory under its jurisdiction.’14

Although the total number of actual prosecutions based on the universality principle is fairly limited, practice indicates that this principle of international law has been invoked by courts of various States with respect to different crimes.

(p. 1879) Examples are the famous Eichmann case,15 Demjanjuk case,16 Regina v. Finta,17 and the well-publicized Pinochet case.18

Because general international law recognizes universal jurisdiction over the majority of offences defined by the Rome Statute, third States are hardly in a position to argue that the ICC’s jurisdictional arrangement is something extraordinary.

Irrespective of existing universal jurisdiction, there is another perfectly valid basis for the Rome Statute’s jurisdictional reach. International law recognizes that State Parties to an international treaty may exercise extraterritorial treaty-based jurisdiction over crimes of an international character defined by that treaty. Jurisdiction over treaty crimes is based on the consent of participating States. For example, parties to the Geneva Conventions19 have a treaty right to prosecute all persons before their own courts, regardless of their nationality, alleged to have committed or to have ordered to be committed a grave breach of the Conventions. The same principle has been adopted by numerous other multilateral conventions, including the 1970 Hague Convention for the Suppression of Unlawful Seizure of Aircraft,20 the 1971 Convention on Psychotropic Substances (Article 22),21 the 1979 International Convention Against the Taking of Hostages (p. 1880) (Article 8),22 the 1984 Convention Against Torture (Article 6),23 and the 1997 International Convention for the Suppression of Terrorist Bombings (Article 8).24

It is not easy to draw a clear distinction between crimes under general international law and crimes of international concern defined by treaties (‘treaty crimes’). For example, the crime of genocide may be regarded as a crime under both general law and ‘treaty crime’ as defined by the 1948 Genocide Convention.25 While in the first case any State which obtains custody of persons suspected of responsibility may punish the accused for the breach of general international law, in the second case only State Parties to a particular treaty enjoy a treaty right to punish individuals in accordance with their national law. In cases where jurisdiction over nationals of third States is permitted not by general international law but by specific treaties, the relevant jurisdictional arrangement binds only State Parties.

It is important to note that both strands of jurisdiction mentioned above make no distinction between nationals and non-nationals of prosecuting States. None of the existing multilateral conventions providing for extraterritorial treaty-based jurisdiction require the state of nationality of the accused to be a party to the relevant convention or to consent to prosecution. State Parties exercise criminal jurisdiction with respect to specified offences regardless of the accused’s nationality and do not take into account the position of the accused’s state of nationality. The general right of all States to create such treaty arrangements has never been challenged. In cases of specific prosecutions, third States do not protest against the actual exercise of jurisdiction over treaty crimes under the extraterritorial treaty-based principle.

It may therefore be argued that to the extent that the Rome Statute relies on the generally recognized right of all States to assert extraterritorial jurisdiction to prosecute individuals for a particular category of crime wherever occurring and irrespective of the accused’s nationality by concluding a specific treaty, it can serve as a legitimate new treaty arrangement establishing this type of jurisdiction. The extraterritorial jurisdiction created by a widely ratified multilateral treaty can be asserted by State Parties with respect to any individual, including nationals of third States.

Because the Rome Statute will serve as a quasi-extradition treaty, an important issue is the right of custodial states to surrender individuals subject to their criminal jurisdiction to another jurisdiction in order to stand trial. Again, international (p. 1881) law allows extradition in respect of both crimes under general international law and treaty crimes. Numerous multilateral treaties defining treaty crimes allow State Parties having custody of the offender either to try the case themselves or to extradite the offender to another interested State. In these situations, ‘an interested State’ is not necessarily the state of the offender’s nationality. The requesting state may be the territorial state ot any other state having a valid title to exercise criminal jurisdiction. Treaty arrangements establishing the ‘extradite or prosecute’ system have been accepted as legitimate by all members of the international community. Under the existing system, the state of the accused’s nationality has very few legal grounds for protest if its national is transferred by one treaty participant to another. Legal grounds for complaint exist only in cases where there is a well-founded fear of the violation of fundamental rights of an accused in the receiving state. This may involve, for example, the transfer of the accused to a State that has no independent judiciary or does not guarantee basic procedural rights. However, these grounds are obviously non-existent in the case of the ICC, a competent, impartial, and independent tribunal created by the international community. The Rome Statute includes all the generally accepted procedural guarantees for the accused recognized in international human rights instruments. In view of this, it is difficult to claim that by creating the ICC, the participating States violated legal rights or interests of third States. The Rome Statute grants State Parties the same jurisdictional and extradition powers that they already enjoy under other multilateral conventions.

C. The Power to Create Joint International Tribunals

Under the Rome Statute, the accused will be tried not by ‘an interested State’ but by an international tribunal created by ‘interested States’. In principle, it could be argued that such an arrangement contravenes the established principles of international criminal jurisdiction which usually envision trials only in national courts. Indeed, an argument has been made that State Parties to the Rome Statute have no legitimate right to transfer to a joint tribunal their sovereign powers to extradite or prosecute. For example, US officials expressed doubts as to whether States ‘could join together to create a criminal court and purport to extend its jurisdiction over everyone everywhere in the world.’26

This line of argument overlooks well-known precedents supporting the view that States may create joint international tribunals and operate them under the principle of ‘ceded jurisdiction’. The Nuremberg Tribunal is the most important precedent supporting the legitimacy of the principle of ‘ceded jurisdiction’. Prominent writers have noted that the Nuremberg Tribunal was the joint exercise by its (p. 1882) establishing States of a sovereign right which each of them was entitled to exercise separately on its own responsibility in accordance with existing international law.27 The Nuremberg Tribunal itself endorsed the principle of ‘ceded jurisdiction’ by stating that: ‘The signatory powers created this tribunal, defined the law it was to administer, and made regulations for the proper conduct of the trial. In doing so, they have done together what any one of them might have done singly; for it is not to be doubted that any nation has the right thus to set up special courts to administer law.’28

Official UN documents fully endorse this view. Commenting on the Nuremberg precedent, the UN Secretary-General stated in 1949 that ‘the Court affirmed that the signatory powers in creating the tribunal had made use of a right belonging to any nation.’29 In a resolution proposed by the United States and adopted unanimously on 11 December 1946, the UN General Assembly affirmed ‘the principles of international law recognized by the Charter of the Nuremberg Tribunal and the judgment of the Tribunal’.30

Although in subsequent years no joint criminal tribunal was created, both the widely ratified 1948 Genocide Convention31 and the 1973 Apartheid Convention32 expressly contemplate conferral of criminal jurisdiction on ‘an international penal tribunal’ to be created. There is no doubt that all State Parties to these conventions agreed that they have a sovereign right to combine their jurisdictions and to cede this combined jurisdiction to a future international criminal court.

The Rome Statute is also based on the assumption that if State Parties to the Rome Statute may prosecute persons accused of grave international crimes unilaterally, they may also prosecute them jointly. As a result, the ICC will have a legitimate treaty right to exercise jurisdiction with respect to all persons accused of crimes under the Rome Statute regardless of their nationality.

D. Nullum crimen sine lege

The principle of nullum crimen sine lege is a fundamental principle of criminal law recognized in Article 22 of the Rome Statute. Nationals of third States accused of committing a crime under the Rome Statute may claim that the relevant substantive provisions of the Statute did not apply to them because their States failed to (p. 1883) ratify the Statute and, as a result, that treaty was not part of the law of their countries. They could thus argue that the ICC’s jurisdictional reach contravenes nullum crimen sine lege.

This argument does not take into account the existing principles and rules of international criminal law. The Nuremberg Charter characterized as crimes against humanity certain types of conduct ‘whether or not in violation of the domestic law where perpetrated’.33 In its Judgment the Nuremberg Tribunal held that ‘international law imposes duties and liabilities upon individuals’. The Tribunal also noted that ‘individuals can be punished for violations of international law’ and that ‘individuals have international duties which transcend the national obligations of obedience imposed by the individual state’.34 This implies that international law has been granted relative autonomy in the criminal characterization of the types of behaviour as international crimes. As a result, individuals could incur direct criminal responsibility under international law irrespective of the existence of any corresponding national law. The International Law Commission recognized the general autonomy of international law over national law with respect to the criminalization of certain acts in Principle II of the 1950 Nuremberg Principles35 which stated: ‘The fact that internal law does not impose a penalty for an act which constitutes a crime under international law does not relieve the person who committed the act from responsibility under international law.’ The Commission reiterated this principle in the 1954 Draft Code of Offences against the Peace and Security of Mankind36 and the 1996 Draft Code of Crimes against the Peace and Security of Mankind.37

However, the supremacy of international criminal law over national law is accepted only in respect to crimes under general international law. Treaty definitions of crimes cannot directly govern acts of individuals because these crimes have to be incorporated into the domestic law of participating States. If a State Party fails to implement the relevant treaty provision in its domestic law, the mere adoption of a treaty definition of a crime at the international level is insufficient to make the treaty rule applicable to the conduct of private individuals. It is obvious that the failure of a State Party to comply with its treaty obligations should not prejudice the rights of an accused individual. As a result, if a national of a State Party that failed to enact the relevant domestic legislation commits a crime on its territory, an accused cannot be held liable for the treaty crime.

(p. 1884) While the application of the principle nullum crimen sine lege to crimes under general law and treaty law varies in cases of crimes committed on the territory of State Parties that fail to enact the relevant domestic legislation, there is no difference if treaty crimes are committed on the territory of States that have made treaty provisions part of their domestic law. This applies to both nationals and non-nationals of the territorial state. Nationals of State Parties that have failed to implement the relevant treaty provisions or nationals of non-Party States accused of committing treaty crimes on the territory of the complying State cannot argue that their prosecution violates the principle of nullum crimen sine lege. The International Law Commission considered the validity of the nullum crimen sine lege argument in connection with Article 21 of its 1994 Draft Statute for an International Criminal Court. Under Article 21 of the 1994 Draft Statute, the proposed Court was able to exercise jurisdiction with respect to universal and treaty crimes if the jurisdiction of the Court with respect to the crime was accepted by ‘the state which has custody of the suspect with respect to the crime (‘the custodial state’)’ and by ‘the state on the territory of which the act or omission in question occurred’.38 In its comment on the applicability of nullum crimen sine lege to treaty-based crimes the Commission stated:

[T]he nullum crimen sine lege principle does not presuppose an exclusively territorial system of the application of treaty provisions. If the treaty was properly applicable to the conduct of the accused in accordance with its terms and having regard to the link between the accused and the state or states whose acceptance is required for the purposes of article 21, the accused should not be able to deny the applicability of the treaty merely because some third state was not at the time a party to the treaty or because it was not part of the law of that third state. For example, if a person commits a crime on the territory of state X, a party on whose territory the treaty is in force, the fact that the state of the accused’s nationality is not a party to the treaty would be irrelevant.39

This suggests that any claim based on the principle nullum crimen sine lege could succeed only in a situation when a national of a third State commits a treaty crime under the Rome Statute on the territory of that third State and the crime in question has no effect on the territories of States Parties to the Statute. In such a situation, the national of the third State could claim that his or her conduct cannot be regarded as governed by the Rome Statute because the territorial state has not ratified it and the crimes defined by that treaty cannot be considered as part of the law of that State. However, the claim based on nullum crimen sine lege would fail in all cases where a national of a third State is accused of committing a crime under general international law, such as genocide. In such circumstances, a national of a third State could be convicted by the ICC even if the same person cannot be tried in her or his national court. This approach is in full accord with the existing (p. 1885) human rights treaties which usually provide that the principle nullum crimen sine lege is not infringed when the act in question is a crime under general international law.40

IV. Issues of Immunity

Traditional customary law immunities used to serve as an insurmountable bar to the exercise of criminal jurisdiction over Heads of States and some other State officials. Because of their status, serving Heads of States always enjoyed immunity ratione personae. Although immunity ratione personae was not available to serving heads of governments who are not also Heads of States, foreign ministers, military commanders, those in charge of security forces or their subordinates were protected by immunity ratione materiae.

Treaty arrangements providing for jurisdiction over crimes of international concern do not remove personal immunities recognized by traditional customary law. These immunities must be removed by express agreement or waiver. The Rome Statute includes such a waiver in Article 27. Article 27 will have a profound impact on all State officials. Because the Rome Statute denies personal immunity, public officials, including Heads of States, accused of international crimes, will have to think twice about travelling abroad, especially to territorial states. Not surprisingly, this has raised serious concern in many States, especially in the United States.41

Issues of immunity may arise not only during the trial but also during the surrender process. Under Articles 58 and 59 of the Statute, the ICC may transmit a request for the arrest and surrender of a person accused of an international crime to any State Party on the territory of which that person may be found. The custodial state is expected to comply with the ICC’s order. Under this provision, a foreign State official, such as foreign minister, may be arrested and surrendered to the ICC if he or she visits any country that ratified the Rome Statute.

In cases of surrender, the Rome Statute appears to display a greater degree of recognition of possible claims of immunity under international law. Article 98 of the Rome Statute recognizes that compliance with the ICC’s request for surrender (p. 1886) should not violate the custodial state’s obligations under international law. Article 98(1) mentions ‘diplomatic immunity of a person … of a third state’. Article 98(2) refers to the obligations of host States under the status-of-forces agreements.

An important question for third States is the impact of these provisions on their Heads of States and other public officials. One can argue that although personal immunity of Heads of States has already been removed in cases of certain well-established international crimes, there is no general rule denying personal immunity of Heads of States or functional immunity of governmental officials with respect to all crimes defined by the Rome Statute. As a result, it could be argued that the provision of the Rome Statute denying, for example, immunity of Heads of States accused of all crimes included in the Rome Statute cannot bind third States. Only State Parties can surrender to the ICC their Heads of States or governmental agents who, in the exercise of their official functions, may have committed the relevant crimes. Third States may continue to rely on the existing immunities in cases involving the surrender of suspects to the ICC.

State Parties to the Rome Statute will certainly argue that although under general international law Heads of States are entitled to immunity in relation to ordinary criminal acts performed in the course of exercising public functions, they do not enjoy immunity for most serious international crimes. To the extent that the Rome Statute codifies general international criminal law, third States would probably not be able to claim immunity for State officials. State officials who may not claim immunity ratione personae but may try to rely on immunity ratione materiae will have to prove that existing customary international law protects them from prosecution for their official acts. This may be difficult because international law appears to be moving towards a more restrictive view of immunity ratione materiae. The Nuremberg Tribunal held that ‘he who violates the laws of war cannot obtain immunity while acting in pursuance of the authority of the state if the state in authorizing action moves outside its competence under international law.’42 Recently, the International Criminal Tribunal for the former Yugoslavia held that under existing ‘customary international law’ even Heads of State or government are personally responsible for acts of torture.43

Domestic courts have adopted the same conceptual approach. The leading case is Pinochet, rendered by the British House of Lords. The House of Lords held that under international law torture cannot be part of the functions of public officials, including Heads of State.44 According to this approach, immunity rationae (p. 1887) materiae requires assessment of the official capacity not only from the point of view of domestic law but also from the point of view of international law. From that perspective, it may be argued that the very criminalization of grave violations of international law of global concern automatically removes them from the list of accepted public functions and therefore excludes immunity ratione materiae. Furthermore, in many cases the official or governmental character of the acts which is necessary to found a claim of immunity rationae materiae is in fact an essential element which makes certain acts, such as torture, an international crime. Obviously, as one commentator put it, ‘international law cannot grant immunity from prosecution in relation to acts which the same international law condemns as criminal and as an attack on the interests of the international community as a whole.’45 Additional arguments against immunity may be found in cases when certain criminal acts violate fundamental community norms of jus cogens. Jus cogens norms enjoy the highest status in the international legal order. They automatically prevail and invalidate all other rules of international law, including rules concerning Head of State immunity.

It will be interesting to see how these considerations will affect future developments. Parties to the Rome Statute can argue that under the Rome Statute they are entitled to exercise jurisdiction over all offenders, including public officials. They can also argue that in all cases under the ICC’s jurisdiction, immunity could be denied to officials of any country, irrespective of whether his or her country has ratified the Rome Statute. Whether such a claim prevails will depend on the subsequent practice and reaction of third States.

It is not entirely clear to what extent the existing status-of-forces agreements provide protection against the ICC’s jurisdiction. The existing status-of-forces agreements do not provide absolute immunity from prosecution of foreign military personnel by the host State protection with respect to all crimes.46 The sending State’s military personnel enjoy only partial immunity. Complete immunity for military personnel would be guaranteed only if status-of-forces agreements would guarantee exclusive jurisdiction and absolute immunity for the sending State. However, even such an arrangement may not provide an absolute guarantee. Theoretically, one cannot exclude the possibility of an argument relying on the ordre public of the international community. Domestic courts of host States Parties to the Rome Treaty could argue that they must accord primacy to (p. 1888) Community norms arising from obligations of jus cogens, such as prohibition of genocide or torture, over specific treaty obligations under the status-of-forces agreements.

V. Domestic Criminal Procedures in Third States and Cooperation in the Administration of Criminal Justice

Under the Rome Statute the ICC will complement rather than replace national courts. The ICC will be able to assert its jurisdiction only when a national criminal system is unwilling or unable to genuinely investigate or prosecute the perpetrators of the most serious crimes of international concern. Although the ICC will not interfere with domestic procedures when a State which has jurisdiction over the case is willing or able to prosecute the accused, it has the power to determine for itself whether this is the case. If the domestic criminal justice system of any State, including states of the nationality of the accused that may be non-Party States, fails to function effectively, the accused individuals may be brought before the ICC.

The very existence and operation of the ICC may contribute to a more effective functioning of national justice systems with respect to international crimes. This is an extremely important political and legal development. International practice indicates that domestic prosecutors and courts are often poor vehicles for the prosecution of their nationals with respect to international crimes. A good example is the infamous My Lai incident from the Vietnam war, in which US soldiers massacred hundreds of Vietnamese civilians, including women and children. Of the more than 30 soldiers involved, only US Army Lieutenant William L. Calley was convicted for the premeditated murder of 22 infants, children, women, and old men, and of assault with the intent to murder a child of about 2 years of age.47 However, Calley was imprisoned for only a short time before having his sentence commuted. If all persons involved in the My Lai incident had been tried by an impartial international tribunal, they would probably have been convicted and received a harsher punishment. In any future incidents like My Lai, the ICC will have the power to examine domestic decisions made by any non-participating State not to prosecute the offences within its jurisdiction. From this perspective, the ICC will function as a higher international court of review for national authorities and courts.

Additional pressure may arise from more specific provisions of the Rome Statute. For example, the Statute provides that before a case is taken up by the ICC, the (p. 1889) Prosecutor will notify all State Parties as well as all States that would normally have jurisdiction, including third States, such as the state of nationality of the accused. These States then have another chance to initiate their own investigations to which the Prosecutor must defer. As a result, even an initial action by the ICC may compel more rigorous domestic investigation and eventual prosecution of international crimes in all countries of the world.

The Rome Statute will also affect the existing international extradition system. Article 90 of the ICC Statute deals with situations when a State Party receives a request from the ICC for the surrender of a person accused of a crime under the Statute. If the requested State Party also receives a request from a third State for the extradition of the same person for the same conduct, the State Party must give priority to the request for surrender from the ICC, if it is not under an international obligation to extradite the person to the requesting State.

From a procedural perspective, an action taken by the ICC is likely to have certain effects via the existing principle aut dedere aut judicare. One could argue that if the ICC’s Prosecutor has established that there is a prima facie case against the accused, no State having custody over the accused may simply ignore this finding. Even if there is no legal obligation to transfer the accused person for trial at the international level, there may be an indirect pressure to prosecute in domestic courts. A special situation arises in cases triggered by a referral from the Security Council acting under Chapter VII of the UN Charter. In general, only State Parties to the Rome Statute must cooperate with the ICC. Third States may refuse to cooperate and recognize the ICC’s rulings. However, third States must cooperate with the ICC if the proceedings are triggered by a referral from the Security Council. Refusal to cooperate in this case may constitute a violation of the third State’s obligations under the UN Charter.

VI. The ICC Procedure and Third States

Article 36 of the Vienna Convention on the Law of Treaties48 allows State Parties to grant certain rights to third States. In accordance with this generally recognized principle, State Parties to the Rome Statute created several procedural rights in favour of all third States. Under Article 12 of the Rome Statute, non-Party States may always accept the ICC’s jurisdiction ad hoc. Article 12 provides that the ICC can exercise its jurisdiction in cases when a non-Party State of the territory where the crime was committed or the state of nationality of the accused has accepted the jurisdiction of the ICC with respect to the crime in question. The ad hoc consent to the ICC’s jurisdiction involves a number of obligations, including the broad (p. 1890) duty to provide assistance to the ICC in its investigation and prosecution of the relevant crime. Under Article 15, a non-Party State may trigger investigation through the Prosecutor who has the power to act proprio motu on the basis of information on crimes within the ICC’s jurisdiction submitted by any State. In addition, non-Party States may always try to trigger investigations or to defer investigations or prosecutions through the UN Security Council.

Important procedural consequences arise for third States from the ICC’s claim to jurisdiction with respect to all persons accused of crimes under the Rome Statute regardless of their nationality. Although non-Party States will not be legally bound by the relevant provisions per se, in order to protect their nationals they may find themselves in a position where they have to rely on the Statute‘s clauses concerning jurisdiction and admissibility. Thus, if a non-Party’s citizen is arrested in a participating country and transferred to the ICC for alleged war crimes under investigation in that State, and the third State would wish to challenge the ICC’s jurisdiction, it would have no other choice but to rely, for example, on Article 17(1)(a) of the Rome Statute and argue that the case is inadmissible because it ‘is being investigated or prosecuted by a state which has jurisdiction over it’. In such a situation, a third party policy of non-cooperation with the ICC could only be counterproductive.

VII. The Rome Statute and General International Criminal Law

During the preparation of the Rome Statute, one of the most serious concerns was the absence of well-defined international criminal law. The chaotic state of international criminal law created apprehensions that the whole project would violate the principle of legality. Indeed, numerous international conventions on criminal matters contain very vague definitions of crimes. Some of them contain definitions that fail to actually criminalize particular behaviour. Some crimes, in particular crimes against humanity, although defined by the Nuremberg Charter and Statutes of the recent ad hoc criminal tribunals, are generally binding only as customary international law.

The drafters of the Rome Statute decided that, under the modern notions of legality, general principles of criminal law and especially substantive definitions of crimes had to be included in the ICC’s Statute. As a result, the Rome Statute includes both general principles of criminal law and definitions of substantive criminal law to be applied by the ICC. These provisions will serve as an important normative framework for future international criminal regulation.

Many drafters of the Rome Statute held the view that their task was not to create new criminal laws, but only restate crimes already prohibited by international (p. 1891) customary law. However, it is well known that any formulation in writing of general customary rules is a complicated process. It is difficult to maintain the thin line between pure codification of pre-existing law and progressive development of the law. As a result, although the Rome Statute’s provisions on crimes tend to restate general substantive criminal law, some elements are clear innovations. As a matter of treaty law, these innovations will bind only State Parties. At the same time, to the extent that the adopted general principles of criminal law and definitions of crimes constitute restatement of the already existing body of substantive criminal law, they may bind all States, including third States, irrespective of their participation in the Rome Statute via customary international law. It is well recognized that in cases where treaties restate general law, the relevant general rules continue to bind all States irrespective of the legal status of specific treaties. In fact, treaties may serve as evidence of generally binding law even prior to their entry into force. It is therefore not surprising that both international49 and domestic50 tribunals have already started to invoke various provisions of the Rome Statute when ascertaining generally binding international law.

In its present form, the ICC will have jurisdiction with respect to international crimes of genocide, war crimes, crimes against humanity, and the crime of aggression. These well-established crimes are defined by the present Statute.

A. Genocide

Genocide has long been recognized as a crime in international law. In this respect, the Rome Statute follows verbatim Article II of the Genocide Convention.51 The Genocide Convention has not only been widely accepted as treaty law, but is also regarded as reflecting customary international law. More than four decades ago, in its advisory opinion concerning Reservations to the Genocide Convention, the International Court of Justice stated that ‘the principles underlying the Convention are principles which are recognized by civilized nations as binding on states, even without any conventional obligation.’52 In its commentary to the 1994 Draft Statute for an International Criminal Court, the International Law Commission stated that ‘it cannot be doubted that genocide, as defined in the Convention on the Prevention and Punishment of the Crime of Genocide, is a crime under general international law.’53 Not surprisingly, the International Law (p. 1892) Commission had no doubt that the future criminal court should have ‘inherent’ jurisdiction over the crime of genocide precisely because ‘the prohibition of genocide is of such fundamental significance, and the occasions for legitimate doubt or dispute over whether a given situation amounts to genocide are so limited.’54

In general, there is little disagreement over the basic definition of the crime of genocide. Although the Rome Statute adopted the definition included in Article II of the Genocide Convention, there may still be arguments about some elements, in particular the requirement of special or specific intent to destroy a national, ethnical, racial, or religious group.

B. Crimes Against Humanity

Article 7 of the Rome Statute contains an elaborate definition of crimes against humanity. Although there is no doubt that crimes against humanity are crimes under international law, there is no generally accepted definition of such crimes. The International Law Commission noted the existence of ‘unresolved issues about the definition of the crime [against humanity]’.55 During the Rome Conference it was not easy to achieve consensus on a specific list of offences against humanity over which the ICC should have jurisdiction even though the proposed definition limits such crimes to a widespread or systematic attack directed against any civilian population, with knowledge of the attack. Nevertheless, the participants in the Rome Conference appear to have acknowledged that at least the majority of specific offences included in the Rome Statute were also crimes under general international law. Such an approach finds firm support in several precedents, including the Nuremberg Charter56 and the Statutes of the International Tribunals for the former Yugoslavia57 and Rwanda.58 During the negotiations leading to the Rome Statute, a controversial issue was the connection of crimes against humanity to armed conflict. Both the Nuremberg Charter and the Statute of the International Tribunal for the former Yugoslavia required the nexus to armed conflict. In contrast, Article 7 of the Rome Statute makes no reference to this requirement. The Statute asserts the view that crimes against humanity could take place in either wartime or peacetime. This view of the law finds support in recent judicial practice.59

(p. 1893) C. War Crimes

Article 8 of the Rome Statute deals with war crimes. In general, Article 8 restates (sometimes with certain limitations) the existing laws and customs applicable in armed conflict codified in the Geneva Conventions60 and the 1977 Additional Protocol I.61 Practice of the International Court of Justice62 indicates that Common Article 3 and some other provisions of the Geneva Conventions are to be considered as customary international law. In its Nuclear Weapons advisory opinion, the International Court of Justice emphasized that fundamental rules of humanitarian law ‘are to be observed by all states whether or not they have ratified the conventions that contain them, because they constitute intransgressible principles of international customary law’.63 Crimes committed in non-international armed conflicts are also included in Article 8 of the Rome Statute. These provisions are based on Common Article 3 of the Geneva Conventions and the 1977 Additional Protocol II.64 Neither of these documents provides for the international criminal responsibility of a person who commits the acts listed as prohibited. However, subsequent developments in the law indicate that criminal sanctions are now attached to the above prohibitions. The Appeals Chamber of the Yugoslavia Tribunal acknowledged criminalization of Common Article 3 and its customary law status in the ruling in the Tadić case.65

The majority of States participating in the drafting of the Rome Statute agreed that the substantive criminal law of the Rome Statute essentially restates the existing law. In this respect, it is important to note that all permanent Security Council members had acknowledged that many of these provisions reflect customary international law on earlier occasions, in particular during the negotiations leading to the Statute of the International Tribunal for the former Yugoslavia. The UN Security Council resolution66 authorizing the establishment of the Yugoslav Tribunal requested the UN Secretary-General to produce a report on the Statute of the Tribunal. The Secretary-General submitted to the Security Council a draft (p. 1894) statute67 which contained many substantive law provisions similar to those found in the Rome Statute. The Secretary-General stated in his report that under the principle nullum crimen sine lege the future tribunal ‘should apply rules of international humanitarian law which are beyond any doubt part of customary law’.68 According to the Secretary-General, ‘the part of conventional international humanitarian law which has beyond doubt become part of international customary law is the law applicable in armed conflict as embodied in: the Geneva Conventions of 12 August 1949 for the Protection of War Victims; the Hague Convention (IV) Respecting the Laws and Customs of War on Land and the Regulations annexed thereto of 18 October 1907; the Convention on the Prevention and Punishment of the Crime of Genocide of 9 December 1948; and the Charter of the International Military Tribunal of 8 August 1945.’69 Subsequently, the Security Council unanimously approved a resolution which established the Yugoslav Tribunal and approved the Secretary-General’s draft statute without any change.70 In accepting the Secretary-General’s report, the Security Council recognized that it was not creating new criminal law. Rather it was restating the already existing law. The affirmative vote of all Security Council members in this case, including all five permanent members, could only mean that they agreed with the Secretary-General’s proposals and findings. Official statements made by several state representatives during the debates in the Security Council also seem to indicate that they were willing to accept a broader view of general customary law. In his report the Secretary-General listed only documents concerning international conflicts as those he regarded as clearly customary law. However, three permanent members of the Security Council declared that they regarded even non-grave breaches of the Geneva Conventions and breaches of additional protocols to be within the Yugoslav Tribunal’s jurisdiction.71

Be that as it may, as far as the Rome Statute is concerned, it not only restates the existing body of law in the field of international criminal law, which is often unclear and unsatisfactory, but also contains many elements of progressive development. This is not the place to analyse all the elements of progressive development. A few examples will suffice for our purposes. An important provision that constitutes progressive development of substantive law is Article 7 of the Rome Statute. It contains a much broader definition of crimes against humanity than those set out in the Nuremberg Charter or in the Statutes of the Yugoslav and (p. 1895) Rwanda Tribunals. Among other things, it includes systematic torture, forced pregnancy, gender persecution, forced disappearance, and forcible transfer of population. Many States opposed these provisions and it is not clear to what extent they constitute customary international law.

Article 8 of the Rome Statute, dealing with war crimes, also contains several innovations. The innovations include, for example, the criminalization of various acts against UN peacekeepers and humanitarian organizations, military attacks against ‘buildings dedicated to … education’ and conscripting or enlisting children under the age of 15 years into the national armed forces or using them to participate actively in the hostilities. A rather controversial step is inclusion in Article 8(b)(viii) of the words ‘directly or indirectly’ which expanded the definition of the already existing war crime prohibiting the transfer by the occupying power of its civilian population to an occupied territory.72 To the extent that these and other definitions of crimes under the Rome Statute constitute progressive development of substantive criminal law, they bind only State Parties. States that persistently objected to these and other provisions, such as Article 8(2)(b)(viii) or certain interpretations of Article 6(b) of the Rome Statute, probably qualify for the status of persistent objector.

Other innovations may follow from general provisions of the Rome Statute dealing with elements of individual criminal responsibility applicable to all crimes within the jurisdiction of the ICC. For example, under Article 25(3)(b) of the Rome Statute, a person is criminally responsible and liable for punishment for a crime if that person ‘solicits or induces the commission of such a crime’. Although, as noted earlier, the definition of the crime of genocide was taken verbatim from Article II of the 1948 Genocide Convention, under the general provisions of the Rome Statute there are now additional acts, such as inducing, which may constitute a basis for criminal responsibility for genocide.

Whatever the status of these provisions included in the Rome Statute at this stage, one cannot exclude the possibility that in due time they may gradually pass into the body of generally binding law. It is well recognized that new rules embodied in a treaty may come to be regarded as general standards of behaviour even by States that are not parties to the treaty. The passage of treaty norms into the body of general law depends on the subsequent practice of States. If the subsequent practice supports innovations in the field of substantive criminal law, the Rome Statute will make an important contribution to the emergence of new customary law, even though Article 10 states that the relevant definitions of crimes cannot limit or prejudice in any way ‘developing rules of international law for purposes other than this Statute’.

(p. 1896) In addition to the above considerations, it is also useful to keep in mind that as a permanent judicial institution, the ICC will facilitate the uniform and consistent application of international criminal law. By rendering judgments in concrete cases and developing a consistent jurisprudence, the ICC may clarify and even develop international criminal law. Although the Rome Statute does not grant the ICC formal authority to develop substantive or procedural law, such an authority is implicitly recognized by Article 21(1). According to Article 21(1), the ICC may ‘apply principles and rules of law as interpreted in its previous decisions’. New developments in criminal law will also result from other provisions of Article 21. The ICC will apply not only the Rome Statute and Elements of Crimes to be adopted by State Parties but also ‘the established principles of the international law of armed conflict’ and ‘general principles of law derived by the Court from national laws of legal systems of the world’. These broad provisions on applicable sources of law provide ample opportunities for judicial creativity.

VIII. Proposals for Reform and Policy Considerations

Critics of the ICC often focus on its jurisdictional reach under Article 12 of the Rome Statute. However, it is difficult to imagine that States supporting the present ICC would accept any proposal aimed at amending the basic elements of Article 12. Two considerations will continue to play a major role here. First, requiring mandatory consent from an often overprotective State of an accused’s state of nationality would severely limit the ICC’s jurisdiction and undermine its efficacy. Such a proposal would permit the accused’s state of nationality to exercise a veto over the ICC’s jurisdiction. Second, such a restrictive formula may be regarded as inconsistent with the established jurisdictional principles of international criminal law.

These considerations would also apply to any proposed interpretative statement by the State Parties aimed at changing the basic jurisdictional scheme of the Rome Statute and to a declarative statement aimed at suspending third-party jurisdiction where the state of nationality of the accused is willing to assume responsibility for the criminal conduct as official acts. There are obvious technical problems with these approaches. A far-reaching binding interpretative statement may amount to an amendment prohibited by the Rome Statute until the first Review Conference. An interpretative statement may also amount to a reservation prohibited by Article 120 of the Rome Statute.

The decision-makers would be much better advised to keep in mind that by remaining outside the Rome Statute non-Party States will not be able to enjoy many privileges granted only to State Parties. Only State Parties will elect judges of the ICC. Third States will not be able to participate in the selection of the (p. 1897) Prosecutor. Elements of Crimes, which will assist the ICC in the interpretation and application of the relevant substantive law clauses defining genocide, crimes against humanity, and war crimes, and the Rules of Procedure and Evidence will be adopted by the members of the Assembly of States Parties. One of the remarkable (and highly controversial) features of the Rome Statute is that only State Parties may shield their nationals from prosecution by the ICC in respect of war crimes by ‘opting out’ of the ICC’s jurisdiction over war crimes for seven years. Third States may not take part in the amendment process which could lead to the addition of new crimes to the jurisdiction of the ICC or revision of the existing crimes. If new definitions of crimes, such as the crime of aggression, or new crimes, such as drug trafficking and international terrorism, are placed under the jurisdiction of the ICC at a later date, all States of the international community will be affected. While State Parties are able to reject the amendments and thus protect their nationals from prosecution for the new or amended crimes, non-Parties will not have this opportunity. As a result, with the ICC becoming a reality, the costs of not joining the new international institution may outweigh the costs of joining.

Select Bibliography

  • G. Hafner et al., ‘A Response to the American View as Presented by Ruth Wedgwood’, 10 EJIL (1999) 108;
  • D. J. Scheffer, ‘The United States and the International Criminal Court’, 93 AJIL (1999) 12;
  • R. Wedgwood, ‘The International Criminal Court: An American View’, 10 EJIL (1999) 93;
  • G. M. Danilenko, ‘The Statute of the International Criminal Court and Third States’, 21 Michigan JIL (2000) 445.(p. 1898)

Footnotes:

1  The Vienna Convention on the Law of Treaties, 1155 UNTS 331.

2  YILC (1966) Vol. II, at 226.

3  Reparation for Injuries Suffered in the Service of the United Nations (1949), ICJ Reports (1949) 174, at 185.

4  YILC (1960) Vol. II, at 87.

5  UN Doc. A/CONF.183/C.1/L.70 (1998). See also UN Doc. A/CONF.183/C.1/L.90 (1998).

6  See Hearing on the Creation of an International Criminal Court before the Sub-committee on International Operations of the Committee on Foreign Relations, US Senate, 105th Congress, at 13 (statement of D. J. Scheffer, Ambassador-at-Large for War Crimes Issues). See also D. J. Scheffer, ‘The United States and the International Criminal Court’, 93 AJIL (1999) 12, at 18. US opponents of the Rome Statute also argue that ‘it is simply and logically untenable to expose the largest deployed military force in the world, stationed across the globe to maintain international peace and security and to defend U.S. allies and friends, to the jurisdiction of a criminal court the U.S. Government has not yet joined and whose authority over U.S. citizens the United States does not recognize’ (Scheffer, ibid., at 18).

7  Proposal of Germany, UN Doc. A/AC.249/1998/DP.2 (1998). The German document stated: ‘Under current international law, all states may exercise universal criminal jurisdiction concerning acts of genocide, crime against humanity and war crimes, regardless of the nationality of the offender, the nationality of the victims and the place where the crime was committed. This means that, in a given case of genocide, crime against humanity or war crimes, each and every state can exercise its own national criminal jurisdiction, regardless of whether the custodial state, the territorial state or any other state has consented to the exercise of such jurisdiction beforehand…. [T]here is no reason why the ICC—established on the basis of a treaty concluded by the largest possible number of states—should not be in the very same position to exercise universal jurisdiction for genocide, crimes against humanity and war crimes in the same manner as the contracting parties themselves.’

8  Cf. Hearing on the Creation of an International Criminal Court before the Subcommittee on International Operations of the Committee on Foreign Relations, supra note 6, at 1 (statement of Senator R. Grams (‘[t]his court claims universal jurisdiction’)), 7 (statement of Senator J. Helms (referring to the Rome Statute’s ‘universal jurisdiction provision’)), and 9 (statement of Senator J. Ashcroft (‘The Court’s claim to universal jurisdiction smacks of arrogance’)).

9  Convention on the Prevention and Punishment of the Crime of Genocide, 78 UNTS 277.

10  Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide, ICJ Reports (1996) 595, at 616. Cf. Case Concerning the Barcelona Traction, Light and Power Company Limited, ICJ Reports (1970) 3, at 32.

11  Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide, supra note 10, at 616.

12  See Draft Code of Crimes against the Peace and Security of Mankind, Commentary of the ILC on Art. 8, para. 8. Report of the International Law Commission on the work of its forty-eighth session, UN Doc. A/51/10 (1996).

13  Prosecutor v. Furundžija, IT-95-17/1-T 10, para. 153 (1998), reprinted in 38 ILM (1999) 317.

14  Ibid., para. 156.

15  Attorney General of Israel v. Eichmann (District Court of Jerusalem, 1961), 36 ILR 18, at 26 (1968). The Supreme Court of Israel affirmed the judgment of the District Court of Jerusalem. It held that the State of Israel was ‘entitled, pursuant to the principle of universal jurisdiction and in the capacity of a guardian of international law and an agent for its enforcement, to try the appellant.’ Attorney General of Israel v. Eichmann (Supreme Court of Israel, 1962), 36 ILR 277, at 304.

16  Demjanjuk v. Petrovsky, 776 F.2d 571 (6th Cir. 1985), cert. denied 475 US 1016 (1986) (a US Court of Appeals referred to the ‘universality principle’ over ‘crimes universally recognized and condemned by the community of nations.’ The Court noted that the universality principle is based on the assumption that some crimes are so condemned that the perpetrators are the enemies of all people.’ It added that ‘when proceeding on that jurisdictional premise, neither the nationality of the accused or the victim(s), nor the location of the crime is significant. The underlying assumption is that the crimes are offences against the law of nations or against humanity and that the prosecuting nation is acting for all nations.’ Ibid., at 582–583.

17  Regina v. Finta (Supreme Court of Canada, 1994), 104 ILR 285 (1997). In this case the Canadian Supreme Court affirmed jurisdiction over crimes committed in Hungary in 1944 because ‘the principle of universality permitted a state to exercise jurisdiction over criminal acts committed by non-nationals against non-nationals wherever they took place if the offence constituted an attack on the international legal order.’ Ibid., at 287.

18  United Kingdom House of Lords, Regina v. Battle and the Commissioner of Police for the Metropolis and Others Ex Parte Pinochet; Regina v. Evans and Other and the Commissioner of Police for the Metropolis and Others Ex Parte Pinochet, reprinted in 38 ILM (1999) 581.

19  Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field of 12 August 1949, Art. 49 (75 UNTS 31); Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea of 12 August 1949, Art. 50 (75 UNTS 85); Geneva Convention Relative to the Treatment of Prisoners of War of 12 August 1949, Art. 129 (75 UNTS 135); Geneva Convention Relative to the Protection of Civilian Persons in Time of War of 12 August 1949, Art. 146 (75 UNTS 287).

20  860 UNTS 105.

21  1019 UNTS 174.

22  1316 UNTS 205.

23  Convention against Torture and Other Cruel, Inhumane or Degrading Treatment or Punishment, 1465 UNTS 85.

24  UN Doc. GA Res. 52/164 (1997).

25  Supra note 9.

26  See Hearing on the Creation of an International Criminal Court before the Sub-committee on International Operations of the Committee on Foreign Relations, supra note 6, at 13 (statement of D. J. Scheffer).

27  See e.g., Oppenheim, 2 International Law, ed. H. Lauterpacht (7th edn., 1952) 580–581.

28  Judgment, I The Trial of the Major War Criminals before the International Military Tribunal (1947) 171, at 218.

29  The Charter and Judgment of the Nuremberg Tribunal, UN Doc. A/CN./4/5 (1949).

30  UN Doc. GA Res. 95 (1946).

31  Supra note 9, Art. VI.

32  International Convention for the Suppression and Punishment of the Crime of Apartheid, 1015 UNTS 243.

33  Agreement for the Prosecution and Punishment of Major War Criminals of the European Axis, Art. 6(c), 82 UNTS 279 (hereinafter the Nuremberg Charter).

34  Judgment, supra note 28, at 223.

35  Principles of International Law Recognized in the Charter of the Nuremberg Tribunal and in the Judgment of the Tribunal, YILC (1950) Vol. II, at 374.

36  YILC (1954) Vol. II, at l49.

37  See Report of the International Law Commission on the work of its forty-eighth session, supra note 12.

38  YILC (1994) Vol. II, at 41.

39  Ibid., at 55–56.

40  Cf. International Covenant on Civil and Political Rights, Art. 15, 999 UNTS 171.

41  See Hearing on the Creation of an International Criminal Court before the Subcommittee on International Operations of the Committee on Foreign Relations, supra note 6, at 30 (statement of J. Bolton) (‘Our main concern from the U.S. perspective is not that the prosecutor will indict the occasional U.S. soldier who violates our own values and laws and his or her military training and doctrine by allegedly committing a war crime. Our main concern should be for the President, the cabinet officers on the National Security Council, and other senior leaders responsible for our defense and foreign policy’).

42  Judgment, supra note 28, at 223.

43  Prosecutor v. Furundžija, supra note 13, para. 140.

44  Regina v. Barth and the Commissioner of Police for the Metropolis and Others Ex Parte Pinochet (Pinochet No. 1), supra note 18. In Pinochet (No. 3), the House of Lords took a different approach, holding that while the acts of torture in question did have an official character, the Torture Convention of 1984 removed any immunity by implication.

45  A. Bianchi, ‘Immunity versus Human Rights: The Pinochet Case’, 10 EJIL (1999) 237, at 260–261.

46  The status of forces of the United States and other members of NATO is governed by the 1951 Agreement between the Parties to the North Atlantic Treaty Regarding the Status of their Forces, 199 UNTS 67. This Agreement has long provided the basic legal framework defining immunities of the military personnel stationed abroad. It has served as a model for numerous multilateral and bilateral agreements concluded by the sending States with host States.

47  See United States v. Calley, 46 CMR 1131 (1973), affirmed 48 CMR 19 (1973); Calley v. Callaway, 519 F.2d 184 (5th Cir. 1975).

48  Supra note 1.

49  See Prosecutor v. Furundžija, supra note 13, paras. 216, 227, 231, and 244.

50  Regina v. Bartle and the Commissioner of Police for the Metropolis and Others Ex Parte Pinochet, supra note 18.

51  Supra note 9.

52  Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, ICJ Reports (1951) 15, at 23. In 1996, the International Court of Justice once again affirmed that ‘the rights and obligations enshrined in the [Genocide] Convention are rights and obligations erga omnesCase Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide, supra note 10, at 616.

53  YILC (1994) Vol. II, at 36.

54  Ibid., at. 37.

55  YILC (1994) Vol. II, at 40.

56  The Nuremberg Charter, supra note 29, Art. 6.

57  The Statute of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, Art. 7(2), UN Doc. S/RES/827 (1993).

58  The Statute of the International Criminal Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in Rwanda, Art. 3, UN Doc. S/RES/955 (1994).

59  In Prosecutor v. Tadić, IT-94-1-AR72, para. 141, reprinted in 35 ILM32 (1996), the Yugoslav Tribunal held that ‘[i]t is by now a settled rule of customary international law that crimes against humanity do not require a connection to international armed conflict. Indeed, … customary international law may not require a connection between crimes against humanity and any conflict at all.’

60  See supra note 19.

61  Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, 1125 UNTS 3.

62  Cf. Case Concerning Military and Paramilitary Activities In and Against Nicaragua, ICJ Reports (1986) 4, at 105.

63  Legality of the Threat or Use of Nuclear Weapons, ICJ Reports (1996) 226, at 257.

64  Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts, 1125 UNTS 609.

65  Prosecutor v. Tadić, supra note 60, para. 134 (‘[C]ustomary international law imposes criminal liability for serious violations of common Article 3, as supplemented by other general principles and rules on the protection of victims of internal armed conflict, and for breaching certain fundamental principles and rules regarding means and methods of combat in civil strife’).

66  UN Doc. S/RES/808 (1993).

67  Report of the Secretary-General Pursuant to Paragraph 2 of the Security Council Resolution 808 (1993), UN Doc. S/25704 (1993).

68  Ibid., para. 34.

69  Ibid., para. 35.

70  UN Doc. S/RES/827 (1993).

71  See UN Doc. S/PV. 3217, at 11 (1993) (statement of the representative of France); ibid., at 15 (statement of the representative of the United States); ibid., at 19 (statement of the representative of the United Kingdom).

72  Cf. Geneva Convention Relative to the Protection of Civilian Persons in Time of War, supra note 19, Art. 49(6).