Melbourne Journal of International Law
|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Melbourne Journal of International Law |
|
SYNERGIES BETWEEN CORE AND TRANSNATIONAL CRIMES:
AN ANALYSIS FROM THE PERSPECTIVE OF THE ROME STATUTE
Synergies Between Core and Transnational Crimes
Rafael Braga da Silva[1]*
This article examines the validity of the normative and theoretical distinction between core and transnational crimes as well as their phenomenological relationship inter se. It criticises the definitional orthodoxy of international crimes as embodied in the jurisdictional provisions of the Rome Statute of the International Criminal Court in light of the theoretical and criminological underpinnings of ‘core crimes’ as an autonomous category of crimes. It then argues, based on International Criminal Court (‘ICC’) case law, that the fictional categories of core crimes produce a myopic view over real life events that does not take into consideration broader events and transnational crimes that enable core crimes. The article then highlights the (modest) potential of addressing transnational criminality within the ICC legal and institutional framework by focusing on two possible avenues: evidence-sharing and charging conduct amounting to transnational crimes under accessorial liability to core crimes. Ultimately, the article aims to discuss what the potential role of the ICC is in combatting transnational crimes as well as the advantages and shortcomings of any such role.
Contents
The International Criminal Court (‘ICC’) is the pinnacle of the international criminal justice project. It represents a move from ad hoc courts to one of a permanent character, with the Rome Statute of the International Criminal Court (‘Rome Statute’)[1] providing a clear set of core international crimes under the ICC’s jurisdiction. These crimes threaten ‘the peace, security and well-being of the world’[2] and are the ‘most serious crimes of concern to the international community as a whole’.[3] During the preparatory work leading up to the Rome Statute, states considered adding several other crimes to its limited list. For example, drug trafficking — which renewed the diplomatic efforts on establishing a permanent international criminal court[4] — was discussed at the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court but ended up being put aside for further consideration.[5] The Rome Statute favours the notion of limited substantive jurisdiction aimed at investigating, prosecuting and adjudging genocide, crimes against humanity, war crimes and the crime of aggression, in accordance with art 5 of the Statute. Within the ICC’s jurisdiction, these are ‘core crimes’. However, what constitutes an ‘international crime’ is still pervaded by ambiguities and unsolved questions, showing a certain artificiality of the definition when it comes to determining which crimes an international criminal tribunal should adjudicate.[6] While it is understandable that jurisdictional choices were made in creating the ICC, leaving transnational crimes outside the substantive jurisdiction of the Court does not erase their existence. In fact, in some instances, transnational crimes are being committed in the same context as or by the same perpetrators of core crimes,[7] either providing the means — or the environment — for the commission of the latter. The jurisdictional choices made in the drafting of the Rome Statute only address part of the criminality by focusing on core crimes, leaving domestic jurisdictions to investigate and prosecute transnational crimes.
When we label international crimes as ‘core’ crimes, we elevate those crimes in a way that gives them some additional status in relation to other crimes.[8] Transnational (‘non-core’) crimes are then pushed to the periphery of international law and out of the international criminal law regime.[9] They are marginalised.[10] This duality is even more intriguing considering that developing states were the main ones to support the inclusion of some transnational crimes into the ICC’s jurisdiction, while developed states resisted this proposal and defended having only a small number of crimes in the category of international crimes.[11] Diplomats and professionals therefore took a political step in the negotiations of the Rome Statute relating to the material jurisdiction of the ICC, furthering the gap between core crimes and transnational crimes.
The core research question underpinning this article is: how different are core crimes from transnational crimes? While two different bodies of law were created around the legal definitions of core and transnational crimes, namely international criminal law and transnational criminal law, the theories used to support this differentiation do not justify the distinction but rather approximate it. Because transnational crimes can only be prosecuted in domestic jurisdictions, further investigation of the traditional grounds of differentiation between core and transnational crimes is warranted (Part II). Based on this discussion, this article argues that core and transnational crimes have synergies between them that mutually reinforce their commission (Part III). From the standpoint of the ICC, this article argues that organs of the Court have not properly identified the relationship between core and transnational crimes, and seeks to recognise available tools to comprehensively address not only the commission of core crimes but also the commission of transnational crimes (Part IV). This article will examine the abstract definitions of core and transnational crimes, analyse the reality of their commission and argue that the ICC can deal with the relationship between them, subject to jurisdictional limitations. Given that the ICC does not have jurisdiction over transnational crimes, this article will assess the role of the ICC in the relationship between core and transnational crimes and how it can bridge that gap, while acknowledging that it would be politically unrealistic to include transnational crimes in the jurisdiction of the Court through an amendment to the Rome Statute. Ultimately, this article aims to contribute to the debate on how core and transnational crimes are interrelated and whether — or how — the ICC has a role in adjudicating both types of crime given the jurisdictional parameters of the Rome Statute.
Crimes are social constructs. When legislators criminalise something, they choose one particular action among a multitude of others and establish a legal consequence for whenever that action occurs in society.[12] Labelling an action as a crime highlights ‘the offender’s criminality, wrongdoing or harm, ie the nature and magnitude of the law-breaking’;[13] it distinguishes that action from other wrongdoings. Calling something ‘criminal’ has a symbolic importance and guides the actions of all those involved in a criminal justice system, from defendants to judges,[14] ensuring that they treat these crimes consistently.[15] The principle of fair labelling acts to ensure that the designation — or label — of an offence accurately represents the criminality that the system wants to prevent and punish if such proscription is violated.[16] In the application of this principle, there are two functions: to describe criminal conduct by stressing its seriousness and gravity, and to distinguish different types of criminal conduct from each other.[17] Therefore, the principle transmits the essence of each criminal justice system[18] and heavily relies on the moral conceptions of the constituents of each system.[19]
In the Rome Statute criminal justice system, crimes are divided into four main categories: genocide, crimes against humanity, war crimes and the crime of aggression.[20] These categories are known as ‘core crimes’ and should represent the characteristics used to criminalise wrongdoing at an international level. They should provide grounds to distinguish between acts that ‘could be classified under the same offence group, although they differ in their degree of wrongdoing’.[21] These categories should also convey both the distinguishing characteristics of conduct in the Rome Statute and the reason why such conduct deserves international criminalisation.[22] Further, they should reflect why such acts are different from domestic crimes ‘in some fundamental and legally significant way’.[23] Labelling certain wrongdoing as a core crime should, therefore, provide ‘an explanation of what distinguishes international crimes from domestic crimes’.[24]
The label of ‘core crimes’ to describe the (now four) crimes under the Rome Statute was first used during the diplomatic discussions to establish the ICC.[25] Although no definition or explanation was given by those present as to what was considered a core crime, the label was used to justify why the ICC should have jurisdiction over genocide, war crimes, crimes against humanity and crimes of aggression. Explanations varied, from the position that the ICC should ‘focus on the core of serious crimes that threatened international peace and security’,[26] to the position that the ICC had ‘inherent jurisdiction’ over crimes regarded as customary international law,[27] and to the position that the ICC should focus on core crimes because states also had universal jurisdiction over them.[28] Treaty crimes, as opposed to core crimes, would be ‘best left to the national courts’.[29] In the context of the travaux préparatoires of the ICC, those treaty crimes were the crime of terrorism, crimes against United Nations personnel and trafficking in drugs. Negotiators concluded that these crimes did not deserve the label of core crimes because, despite being ‘of international concern’,[30] they would ‘delay the establishment of the Court’ due to the lack of consensus[31] or would overburden it with a heavy case load.[32] Those political or practical considerations hide certain unofficial accounts of why treaty crimes were excluded from the jurisdiction of the ICC,[33] which in turn show the biases of the international community against the Global South.[34] Therefore, it is suspected that the main reason for resistance to the inclusion of treaty crimes in the jurisdiction of the ICC ‘is that powerful states prefer the present arrangement under the treaties’ rather than any legal justification.[35]
Scholars have searched for a theory explaining why certain conduct is considered criminal under the Rome Statute as a way to provide a coherent framework.[36] They have hoped to explain, for example, why the Court cannot prosecute transnational crimes. ‘Core crimes’, the exact contents of which are marked by a history of contest and debate,[37] are often defined by commentators in two manners. The first focuses on them through the lens of international law. In this sense, Robert Cryer separates domestic from international crimes using the locus of criminalisation, meaning that prohibitions that come from the international sphere amount to international crimes, while conduct outside this sphere, such as transnational crime, deserves domestic criminalisation and enforcement.[38] Further, Antonio Cassese justifies the existence of international crimes through the prohibition of certain conduct in customary international law, which would allow its criminalisation via international criminal law.[39] Kevin Jon Heller notes that ‘nearly all scholars’ believe that international crimes encompass conduct that is universally criminal under international law, as opposed to transnational crimes, which depend on domestic enforcement and legislative systems.[40] However, these commentators set forth no distinguishing features of international crimes, leading Roger O’Keefe to define this legal category cynically as ‘[y]ou know one when you see it’.[41]
The second manner of defining international crimes is to differentiate them from transnational crimes using substantive characteristics. Transnational crime is defined as ‘conduct that has actual or potential trans-boundary effects of national and international concern’.[42] Other scholars point out that the difference between core and transnational crimes is the existence of contextual elements that separate ordinary crimes — transnational ones included — from core crimes, which have a societal and historical background explaining or justifying their commission.[43] On the other hand, Cassese also distinguishes between the two categories of crimes based on the perpetrators, stating that transnational crimes are committed against states for private gains, while core crimes are committed with the involvement of state agents.[44] Those grounds of distinction seem to put core and transnational crimes into different realms with little communication between them. However, the decision to include certain conduct as core crimes was more a function of political, professional and academic support in the diplomatic conferences than an exercise of legal theory.[45] The selection of conduct within the jurisdiction of the ICC appears to be related more to how certain states and professionals wanted to shape the international criminal justice system, choosing where to ‘draw the line’ in the jurisdiction between core and transnational crimes, rather than to a sound legal theory about the distinctive characteristics of core crimes.[46]
International crimes are thus distinguished from transnational ones based on three characteristics: the legal goods that each category protects (Part II(A)),[47] the requirement of contextual elements for prosecuting international crimes (Part II(B))[48] and the participation of state officials in the commission of international crimes (Part II(C)).[49] However, these criteria are debatable. The characteristics used to differentiate core crimes as a special category that deserves international prosecution are not exclusive to core crimes. Furthermore, the definition of conduct that should be labelled ‘extraordinary’ crime is fluid.[50] This section will demonstrate that the grounds presented to distinguish between core and transnational crimes are not justified.
The first traditional ground for distinguishing core from transnational crimes is the protection of different ‘legal goods’.[51] In general, legal goods are those goods protected by law or considered by a substantive normative theory as deserving protection.[52] On this view, the intervention of criminal law is meant to be limited to only ‘the protection of fundamental legal goods’.[53] What constitutes a ‘fundamental’ legal good is based on the harm principle in criminal law,[54] which sets forth the idea that criminalisation of conduct prevents harm to a social interest,[55] thereby protecting legal goods.[56] This theory justifies why certain conduct is considered wrongdoing and should be punished accordingly.[57] Conduct is a core crime where it offends a legal good or causes the risk or danger of harming it.[58] Those two theoretical bases, legal goods and the harm principle, are part of what is known as the liberal project of criminal law, which is ‘constrained by respect for the autonomy, dignity, or agency of the human beings subject to the system’.[59]
However, what constitutes a legal good is open to interpretation. It is up to policymakers, lawyers and judges to determine this by interpreting the core crimes. This is a problem for any criminal justice system.[60] Early renditions of the theory of legal goods concluded that criminal law should only encompass actions that were already unlawful according to non-criminal law norms, such as civil or administrative proscriptions.[61] More substantive approaches consider that the legal goods protected by criminal law should reflect essential societal values that demand the intervention of criminal law.[62] Therefore, anyone who wishes to determine which legal goods are protected in a specific criminal legal system will have to determine how the legal system holistically protects them, analysing if other fields of law (ie administrative or civil) give enough protection for the legal good. If not, then criminal proscription, as an ultima ratio, is warranted.[63]
Positivist schools of law identify legal goods based on ‘deeply rooted ethical convictions of society’.[64] Normative schools — mostly represented by Claus Roxin — argue that a society’s foundational legal documents identify the legal goods protected by each criminal proscription. These documents limit the state’s actions and guide its objectives.[65] The protection of legal goods is thus closely related to the theory of justice chosen by that society in its constitutional principles.[66]
Some international legal scholars have applied the normative theory of legal goods to distinguish transnational crimes from international ones. In terms of core crimes, M Cherif Bassiouni argues that for an action to be classified as an international crime, it needs to be sufficiently serious to constitute a threat to the international community and so egregious that it ‘shock[s] the conscience of humanity’.[67] Bassiouni thus derives international legal goods from norms he considers as deserving protection, such as the protection of international peace and security, human interests and social and cultural interests, arguing that only these values deserve international criminal legal protection.[68] On the other hand, Cassese believes that restricting international legal goods to jus cogens is probably too high a threshold. Instead, he argues that international criminal rules are ‘intended to protect values considered important by the whole international community ... laid down in a string of international instruments’.[69]
However, both authors conclude that the international society has ‘common interests, common values and common institutions’[70] that are showcased in norms of international law, supporting a neo-Grotian view of the society of states[71] in which the international community is seen as a coherent community joined by common interests.[72] Their ideas resemble Roxin’s normative approach to legal goods because they presuppose that legal goods come from a pre-existing legal order.[73] The consequence of following Bassiouni and Cassese’s logic is to create an international body that is destined to prosecute those responsible for the most serious international violations. This logic informed the discussions on the drafting of the Rome Statute, which saw transnational crimes, such as trafficking of drugs, terrorism and other treaty crimes, excluded from the material jurisdiction of the ICC because, among other reasons, they did not amount to the most serious international violations.[74] Instead, transnational crime is conduct of ‘international concern’ that threatens ‘shared national interests or cosmopolitan values’[75] within ‘global prohibition regimes’.[76] Transnational crimes are, therefore, related to domestic interests and dependent on each state’s willingness to agree on a suppression convention.[77] Suppression conventions originate from an agreement between self-interested states that coordinate their efforts to create uniform systems of domestic criminalisation and cooperate in prosecuting perpetrators of wrongful conduct. Examples of such conduct include corruption; trafficking of drugs, weapons, cultural property and humans; and ancillary services related to this conduct, such as money laundering.[78]
The way in which states enforce the laws built to tackle transnational crimes is a reflex of a ‘Vattelian society of states’.[79] This understanding of the international society sets forth the idea of sovereign and self-interested states coordinating themselves by individual interests.[80] Therefore, the legal goods protected by transnational crimes arise from states’ agreement to protect certain interests.[81] Rather than looking at the international society, transnational criminal law relies on a positivistic identification of legal goods, depending both on the states’ conviction that some conduct must be prosecuted and on their willingness to cooperate towards that prosecution.[82] This conduct challenges states to prevent illegal cross-border economic transactions and harm to human rights, such as individual liberty, bodily integrity and dignity. For instance, take the crime of trafficking in persons as described in the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention against Transnational Organized Crime.[83] The crime of trafficking in persons ‘criminalizes the process of acquiring a person for their exploitation’[84] and protects individual freedom and dignity. Some scholars qualify trafficking in persons as a ‘modern form of slavery’,[85] which also encompasses the crimes of enslavement and slavery relating to the treatment given to persons under the ownership of the perpetrators.[86] Although separate offences, the three are interconnected crimes that facilitate one another.
In terms of the protection of legal goods, there is no clear distinction between the crime against humanity of enslavement, prohibited under art 7(1)(c) of the Rome Statute,[87] and the transnational crime of trafficking in persons. Article 7(2)(c) states that the exercise of any or all of the powers ‘attaching to the right of ownership over a person’ includes the exercise of such power ‘in the course of trafficking in persons’,[88] which is reaffirmed by the Elements of Crimes.[89] Although the addition of trafficking in persons as part of the definition of enslavement deviates from the 1926 Slavery Convention,[90] both crimes protect the same legal goods: freedom and dignity. Despite being criminalised under different labels, there is a growing overlap between these crimes.[91]
The crime of terrorism also shows the lack of clarity in the labelling of conduct as core crimes. This crime was one of the first to be considered by the international community as deserving a permanent international criminal tribunal for its prosecution.[92] The international community’s drive to criminalise terrorism at the international level arose from several killings of politicians and heads of state;[93] negotiators argued that terrorism deserved special treatment and international criminalisation because these acts were ‘crimes against civilization’.[94] States also argued that the crime of terrorism affected different legal goods from ordinary offences, such as international relations, peace and security, amounting to an offence ‘calculated to cause international difficulties’,[95] one which shakes ‘the very foundations of the international community’.[96]
To criminalise terrorism, states agreed on the 1937 Convention for the Prevention and Punishment of Terrorism (‘1937 Convention’),[97] which was only ratified by one state and never entered into force.[98] Although the crime of terrorism was conceived as proscribing conduct that harmed values of the international community as a whole and therefore amounted to an international crime, states’ failure to enter the 1937 Convention into force relegated terrorism to the realm of suppression conventions. Due to the lack of consensus in the international community on a definition of terrorism and the underlying offences of the crime,[99] states instead agreed on matters of international cooperation and the obligation to domestically criminalise and prosecute the offences established by other treaties that dealt with terrorism.[100]
Notwithstanding its protection of the same legal goods as other core crimes, the crime of terrorism was not included in the Rome Statute. Although described as a proscription directed to the protection of legal goods in a neo-Grotian view of international society, terrorism was not internationally criminalised due to political quarrels regarding the definition of terrorism and its underlying offences.[101] States thus preferred to maintain the already existing regulations on the criminalisation of terrorism, classifying it as a transnational crime and using suppression conventions as mechanisms of law enforcement. Although terrorism had all the characteristics of an international crime, states disregarded the existence of a theory of legal goods to criminalise conduct at an international level, instead distorting it with political considerations.
As the different treatment of the crimes of trafficking in persons and terrorism shows, international criminalisation does not follow a theory of protection of legal goods that can justify why certain crimes deserve to be adjudicated before international criminal courts. This is a result of an incoherent international criminalisation with no agreement on protected legal goods,[102] which instead relies on political alignments and circumstantial consensus. Therefore, the selection of conduct as core crimes relies not on the systemic and coherent protection of legal goods but on the political support of states and professionals working on the project of international criminal justice.[103]
A second ground that is often offered as an explanation for the difference between core and transnational crimes is the existence of contextual elements in core crimes.[104] As the supporters of this position argue, core crimes require contextual elements to explain ‘the historical and societal background’[105] behind their commission, exposing a ‘broad context of macro criminality’[106] and the large scale of the commission of such conduct.[107] Ordinary crimes connected to the broader scheme provided by contextual elements are thus elevated to the category of core crimes, putting them under the jurisdiction of the ICC.[108]
There are three explanations of what contextual elements are and what role they have in the Rome Statute. First, contextual elements are constitutive parts of core crimes because they portray the qualitative and quantitative damage those crimes cause.[109] A second explanation is that the existence of contextual elements justifies the jurisdiction over certain conduct by an international court rather than a domestic court.[110] Thirdly, contextual elements have an evidentiary purpose, demonstrating in further detail the conditions of the commission of core crimes.[111] These three theories are not necessarily mutually exclusive and can be relied on together. However, contextual elements are not a uniform requirement in all categories of core crimes in the Rome Statute. It is debatable whether some core crimes have contextual elements at all, such as in the case of the crime of genocide, in which a single act, rather than a collection of acts, could cause the destruction of a protected group.[112] The same question can be asked about the crime of aggression, where no indication of contextual elements can be derived from the Rome Statute.[113]
On the other hand, for crimes against humanity and war crimes, contextual elements are required. Crimes against humanity only exist in the context of a widespread or systematic attack against a civilian population in pursuit or furtherance of a state or organisational policy.[114] Similarly, the Rome Statute states that the Office of the Prosecutor (‘OTP’) can only prosecute war crimes if they are committed during an armed conflict and as part of a plan, policy or large-scale commission,[115] resembling a prioritisation directive. Therefore, not all core crimes have contextual elements in common.[116] But they share an organised and/or quantitative dimension of the repetitive commission of underlying actions labelled as core crimes.[117] This collective dimension of core crimes links isolated actions to a broader attack on a group.
Those who adhere to the view that this collective dimension is what separates core from transnational crimes claim that transnational crimes fail to meet the threshold of scale and systematic occurrence of core crimes.[118] According to this explanation, transnational crimes are ‘ordinary domestic crimes’ because they lack the collective dimension and the particular societal background that suggests macro-criminality.[119] However, this is not necessarily true. Transnational organised crimes can have the same characteristics as core crimes. They can be numerically and organisationally more complex than core crimes[120] and can be deeply embedded within history and society.[121] They can even threaten the existence of states themselves.[122] Transnational crimes often affect the formal and informal economies of states and regions, especially when they involve natural resources. For example, illegal gold and diamond mining in Central African states fuels conflicts and crimes that destabilise the region,[123] and the illegal minerals are used to finance the armed groups involved in many of the core crimes brought before the ICC.[124]
The globalisation of transnational organised crime also provides the quantitative and qualitative elements seen in the contextual elements for core crimes. Persons involved in transnational organised crime create networks connected by sophisticated supply chains.[125] This involves employing a large number of persons who are either directly or indirectly involved in committing transnational crimes. Those sophisticated networks protect the perpetrators on the ground because their crimes are committed in several steps and dissociated through smaller organisations that are not permanently connected.[126] Transnational criminal enterprises thus make it harder for investigators and prosecutors to follow those steps and gather the necessary information to catch and prosecute perpetrators.
Therefore, it is not feasible to attempt to distinguish core from transnational crimes based on contextual elements. Contextual elements are nothing more than the societal background of core crimes, adding a quantitative element to their commission. However, the fact that contextual elements are specifically mentioned in some of the core crimes does not mean these are the only crimes that have them. For instance, the transnational crime of terrorism is directly linked to political and societal contexts, which are usually taken into consideration when law enforcement authorities are investigating or prosecuting these crimes. Moreover, those ‘contextual elements’ are what distinguish the crime of terrorism from other ‘ordinary’ crimes such as organised armed robberies. Nevertheless, despite having similar characteristics to core crimes, the crime of terrorism was not included in the Rome Statute for political reasons.[127] Hence, contextual elements are not an unquestionable legal basis for explaining the difference between core and transnational crimes.[128]
Another ground used to differentiate between core and transnational crimes is the perpetrators. Those who defend this approach claim that core crimes require the participation of state leaders and officials ‘on behalf, or as part of a state’.[129] On the other hand, transnational crimes are perpetrated without state involvement, which in return would not require an international prosecution.[130] Hence, the reason why these core crimes must be prosecuted and adjudged by an international criminal tribunal is to prevent government officials involved in them from using their political power to obstruct the work of domestic criminal courts.[131]
State officials’ involvement in core crimes is often studied under ‘state criminality’.[132] The concept of state criminality encompasses the ‘illegitimate exercise of state violence amounting to a flagrant assault on the most fundamental human rights, accompanied in principle by impunity’.[133] These crimes are committed through the abuse of sovereignty by those in power.[134] Perpetrators can be involved in state criminality in two ways: in an official or informal capacity as agents of the state under express or implied orders, or as a result of the failure by the state to exercise due diligence over the actions of its agents.[135]
The concept of state criminality is thus translated into a policy requirement of core crimes whose goal is to demonstrate the relationship between state officials and the apparatus.[136] The perpetrators have the ‘necessary personnel and organizational resources’ to commit large-scale crimes because of their offices.[137] On the other hand, following the same logic of state criminality, transnational crimes are committed against states.[138] They are considered private crimes because they involve ‘the supply and demand for illegal goods and services’,[139] thus offending domestic interests and the regulatory establishment of states.[140] Transnational crimes are committed by private individuals or transnational criminal organisations that are hierarchically organised and under a cooperative division of tasks, as described by the United Nations Convention against Transnational Organized Crime,[141] with the sporadic involvement of state agents acting in exchange for private gains.[142]
Although the concept of transnational crime does not explicitly encompass the involvement of state officials, transnational criminal organisations in practice thrive if they are connected to public authorities somehow related to their business sectors.[143] These illegal enterprises can exist and be maintained by state officials tolerating their participation, often via corruption. Therefore, transnational crimes sometimes have a ‘continuum of state involvement and complicity in organized crime’[144] in a collaborative relationship in which states, through their officials, act like perpetrators of crimes being committed against the state itself.[145] Moreover, there can also be direct involvement of state officials where they actively engage in the commission of transnational crimes such as money laundering, corruption or drug trafficking.[146] Transnational crimes are then directly linked to state policy, which acts in coordination with organised criminal groups for financial gain or to foster conflict and strife in another state. For instance, take the examples of Daniel Ortega’s government being funded by drug trafficking money[147] and of the Taliban’s transnational terrorism sponsored by Pakistan.[148] The commission — or at least the sponsoring — of transnational crimes by state officials shows heavy state involvement in their perpetration. This would render useless a distinction between core and transnational crimes, as it would also justify why those types of crimes should be under the ICC’s jurisdiction.
Furthermore, the link between core crimes and state officials is tenuous. Except for the crime of aggression, which can only be committed by someone that controls or directs the political or military action of a state,[149] all core crimes can be committed by non-state actors as long as contextual elements are met.[150] In fact, as Judge Silvia Fernández de Gurmendi (acting as president of the ICC) stated, ‘[m]ost of the cases currently before the ICC involve non state actors. So far, all convictions involve non-State actors’.[151] Non-state actors can be prosecuted for genocide and war crimes, provided that their conduct meets the required statutory elements. Genocide requires a manifest pattern of similar conduct directed against a protected group or conduct that itself causes the destruction of the group.[152] As for war crimes, the Rome Statute prioritises the adjudication of crimes committed as a part of a plan or policy, or committed on a large scale by non-state actors involved in a non-international armed conflict.[153] Crimes against humanity are more nuanced in terms of non-state actors’ involvement. The Rome Statute posits that these crimes require not only a widespread and systematic attack against a civilian population[154] but also that the attack be committed ‘pursuant to or in furtherance of a State or organizational policy’.[155] Notwithstanding the provision setting forth the idea of two separate entities (states or organisations), there is a vivid debate about which entities this provision covers. Scholars understand that crimes against humanity occur because states fail to protect their nationals.[156] Hence, only a policy by states or state-like entities could meet their contextual requirements. However, the ‘state or organizational policy’ requirement has more recently been interpreted to encompass non-state actors such as terrorist, rebel, corporate and transnational criminal organisations.[157]
ICC jurisprudence seems to favour the latter interpretation. In Situation in the Republic of Kenya, Pre-Trial Chamber II stated that whether a group qualifies as an ‘organization’ must be determined on a case by case basis while taking into account, inter alia, hierarchy or responsible command, the means to carry out a widespread or systematic attack and control over the territory.[158] Trial Chamber II ruled in the Prosecutor v Katanga (‘Katanga’) case that an organisation must have ‘sufficient resources, means and capacity to bring about the course of conduct or the operation involving the multiple commission of acts referred to in article 7(2)(a) of the Statute’.[159]
Despite criticism of these two decisions,[160] both challenge the idea that only state officials are capable of committing core crimes. Instead, both state and non-state actors can commit core crimes, as long as their conduct meets other contextual elements. Although the theory of state criminality may be relevant to understanding the evolution of international criminal law, it does not provide an explanation for the range of possible perpetrators of core crimes in the Rome Statute.
The concept of ‘collective criminality’ provides a better differentiation between core and transnational crimes. This theory deals with macro- and micro-crimes.[161] Macro-crimes focus on the broader institutional or organisational involvement that enables them, whereas micro-crimes focus on individual perpetrators.[162] The relationship between the two — leading to individual criminal responsibility — is difficult to establish due to the interconnections between numerous acts within a whole body of macro-crime.[163] Both macro- and micro-crimes are ‘collective crimes’[164] or a ‘modality of organized crime’[165] because they are committed through ‘collective entities in which ... individual authors ... are embedded’.[166] Committing both types of crimes requires an ‘intellectual perpetrator at leadership level and [a] plurality of physical perpetrators at execution level’.[167]
Moreover, both generate mass victimisation and violations of collective interests, albeit in different ways.[168] Differentiating core from transnational crimes based on the characteristics of their perpetrators is accordingly not plausible. Although international criminal law is centred around state criminality, the reality is that the discipline is geared towards punishing individuals,[169] non-state actors being equally capable of committing core crimes.[170] Similarly, state officials have engaged in the commission of transnational crimes to finance their activities and causes.[171] Therefore, the nature of perpetrators — whether state officials or private actors — does not provide a clear ground for distinguishing between core and transnational crimes.
Rather than being two separate legal categories isolated by a wide set of differences between their legal goods, contextual elements or perpetrators, core and transnational crimes actually share many similar characteristics. Moreover, core and transnational crimes can reinforce each other, building synergies between them.[172] A synergistic relationship occurs when two parts of a system each benefit from the other’s existence but each part’s existence does not depend on this relationship.[173] Such a synergistic relationship is not a new feature in society. For example, in the International Military Tribunal for the Far East, judges recognised that opium and narcotics trafficking by the Japanese China Affairs Board had the objective of weakening the Chinese defence and providing substantial revenue to finance the Japanese military.[174] Therefore, the commission of transnational crimes can assist the commission of core crimes[175] and, in turn, the latter creates a rich environment for the former.[176] This section will examine the first part of this synergistic relationship, investigating two sets of interactions between core and transnational crimes that have been identified in the literature and are present in cases brought before the ICC. The first is related to how transnational crimes serve as a means for the commission of core crimes, providing goods and services to perpetrators of the latter (Part III(A)). The second occurs when core and transnational crimes are committed by the same perpetrators, usually to finance the operations of the entities to which they are related (Part III(B)). The fluidity of events often defies the existence of two separate sets of crimes, given that they can share the same perpetrators and profit from the same services and means directed toward their commission.
The mainstream scholarship still proposes a clear separation between the two categories of crimes, and the Rome Statute posits only a narrow notion of core crimes. With states failing to demonstrate political support for amendments that would place transnational crimes under the ICC’s jurisdiction, institutional recognition of this close relationship between core and transnational crimes exists on a small scale. In its Strategic Plan 2016–2018, the OTP stated that ‘ICC crimes do not usually occur in isolation from other types of criminality ... [and] the impact of these latter crimes may fuel the conditions for the commission of crimes within the jurisdiction of the ICC’.[177] The interactions between transnational and core crimes ‘often fuel the continuation of a conflict’[178] and are a ‘serious challenge to closing the impunity gap’.[179] Furthermore, the ICC has also partially recognised the interactions between core and transnational crimes, as will be shown in this section.
The first type of interaction is functional, whereby transnational crimes are used as a tool to facilitate the commission of core crimes.[180] In this synergistic relationship, transnational crimes provide goods and services for perpetrators of core crimes, while core crimes provide the circumstances and sense of impunity in which the commission of crimes can thrive. This can be seen in the provision of weaponry through illegal arms trade in the Situations in the Democratic Republic of the Congo (‘DRC’) and Uganda,[181] and money laundering of criminal proceeds in the Situation in Darfur.[182]
The first example of this interaction is the situation on the border between the DRC and Sudan. This area is historically known for the facilitation of the small arms trade flowing from Sudan to the DRC.[183] Although arms initially came to the Sudanese government from the United States and United Kingdom markets,[184] they were repurposed and sold by members of the DRC armed forces to rebel groups such as the Ugandan Lord’s Resistance Army (‘LRA’) and the Democratic Forces for the Liberation of Rwanda.[185]
In 2004, the DRC referred the situation in its territory to the ICC.[186] The OTP initiated its first investigation into the alleged war crimes and crimes against humanity committed in the Ituri region in eastern DRC and the North Kivu and South Kivu provinces.[187] Those investigations led to the first convictions in the history of the ICC — those of Thomas Lubanga Dyilo and Germain Katanga — as well as the later conviction of Bosco Ntaganda.[188] However, the ICC only mentioned the illegal arms trade occurring in that region a few times. The charges brought against Lubanga, who was President of the Union of Congolese Patriots and Commander of its military wing, the Patriotic Forces for the Liberation of Congo (‘FPLC’), only included the crimes of enlisting and conscripting children under the age of 15 into the FPLC and using them to participate actively in hostilities.[189] Trial Chamber I mentioned several instances of uniforms and arms provided by the Rwandan state to the FPLC,[190] which were later given to recruited child soldiers to protect Lubanga.[191] According to the OTP, the arms trade with Uganda and Rwanda was influential for the occurrence of the armed conflict in the region and consequently for the commission of the war crime for which Lubanga was convicted.[192] However, the contribution of the illegal arms trade to the conflict was mentioned neither in the Trial Chamber nor the Appeals Chamber’s assessments.[193] Considering the jurisdictional limits of the ICC, it is understandable that the ICC remained silent about how those weapons came into the possession of the FPLC.
Later, in Katanga, the ICC acknowledged the existence of illegal arms trade in the region. Katanga was charged with war crimes and crimes against humanity that occurred in a village in Ituri on 24 February 2003.[194] In its verdict, Trial Chamber II noted that on the day of the attack, the attackers had ‘a large number of firearms, in particular, automatic weapons’,[195] acknowledging the supply of weapons and ammunition for the battle of Bogoro.[196] Katanga was attributed as having provided such weapons, which ‘secured the success of the operation’[197] and ‘which not only allowed the population to be taken by surprise and Bogoro to be captured, but also [were used] to wound and kill its inhabitants’.[198] Notwithstanding this acknowledgment, the OTP did not open further cases where the links between the core crimes and the illegal arms trade in the region could have been explored.
The case of Prosecutor v Ntaganda continued analysing the interaction between transnational and core crimes. In the decision regarding the issuance of the second arrest warrant against Ntaganda in 2012, there was an initial recognition of the role of the illegal arms trade in the conflict. In his application, the Prosecutor submitted that the defendant ‘commanded all FPLC sectors and brigades, and all military operations’, having ‘procured and distributed weapons and ammunition’.[199] Ruling in favour of the application, Pre-Trial Chamber II issued an arrest warrant against Ntaganda, finding that there were reasonable grounds to believe he had made an essential contribution to the common plan by organising the provision of weapons and ammunition for the attacks.[200] Such a dynamic was also recognised in the confirmation of charges against Ntaganda. Pre-Trial Chamber II recognised that he ‘arranged for weapons to be transported by aircraft from Bunia to Aru and distributed them to the troops’,[201] ‘securing weapons from, inter alia, Rwanda’.[202] The charges of core crimes were confirmed against Ntaganda, and the provision of weapons was fitted into the element of ‘essential contribution’ needed to fulfil the mode of liability of indirect co-perpetration under art 25(3)(a) of the Rome Statute.[203] While Ntaganda was considered guilty of war crimes and crimes against humanity,[204] Trial Chamber VI did not recognise the provision of weapons and ammunitions for the attacks as an essential contribution for indirect co-perpetratorship.[205]
The ICC also recognised that the provision of weapons where a perpetrator contributes to the commission of core crimes could amount to a significant contribution under art 25(3)(d) of the Rome Statute.[206] In the case of Prosecutor v Mbarushimana (‘Mbarushimana’), which was also part of the Situation in the DRC, Pre-Trial Chamber I hypothetically stated that an arms trader who knows he or she is providing weapons for the commission of a war crime could meet all requirements to incur that mode of liability.[207] Furthermore, in the Situation in Darfur, Pre-Trial Chamber I ruled that the delivery of arms and ammunition to the Janjaweed amounted to intentionally contributing to the commission of core crimes, finding reasonable grounds to believe that Ahmad Harun was criminally responsible under art 25(3)(d) of the Rome Statute.[208]
Describing the complex set of transactions that lead to illegal arms trade or other transnational crimes could be one way of remedying the inherent limitations of the ICC’s jurisdictional insulation from the synergistic relationship between core and transnational crimes. Progressively, the ICC is analysing the synergies between core and transnational crimes, ascertaining the latter as modes of liability to core crimes.[209] The Court could use as an example the case of Charles Taylor in the Special Court for Sierra Leone (‘SCSL’). The SCSL extensively reviewed the evidence on the sources and supply routes of arms and ammunition, leading to the conviction of Taylor for assisting the commission of war crimes.[210] In those regions where the ICC is exercising its jurisdiction, the existence of the illegal arms trade is one of the causes of core crimes — threatening peace and security[211] — and an obstacle to closing an existing impunity gap of core crimes. Given this synergistic relationship, it is simplistic to treat a transnational crime as a mode of liability to a core crime because this treatment implies a myopic perspective towards the many connections between these two types of crimes. One possible solution for circumventing such analysis is the OTP sharing the available evidence of illegal arms trade — usually gathered while investigating core crimes — with domestic law enforcement authorities.
Another example of the synergistic relationship between core and transnational crimes is the commission of transnational financial crimes to conceal illicit resources and finance perpetrators of mass atrocities in a seemingly legitimate manner.[212] The Prosecutor of the ICC stated that some ‘business practices continue to fuel atrocities’ and that ‘investigation of the financial aspects of the alleged atrocities will be crucial to prevent future crimes and for the prosecution of crimes already committed’.[213] For instance, take the Situation in Darfur,[214] and the case brought against Omar Hassan Ahmad Al Bashir, who was charged as an indirect co-perpetrator under art 25(3)(a) of the Rome Statute for crimes against humanity, war crimes[215] and, later, genocide.[216]
During the investigation of the OTP, several arms and economic embargoes were in force against the government in Sudan and non-governmental entities in Darfur,[217] making it difficult for these groups to have access to arms and resources. Neither warrant against Al Bashir mentions how the government was financing the commission of core crimes in Darfur and where Al Bashir and others laundered their money.[218] This is understandable because financial crimes — and more specifically, money laundering — are not under the ICC’s jurisdiction. However, the OTP recognised the need to investigate such crimes — but behind closed doors. In a diplomatic cable leaked by WikiLeaks, former prosecutor Luis Moreno-Ocampo told diplomats that Al Bashir had as much as USD9 billion in London banks, including Lloyds Bank.[219] In an investigation carried out by the OTP, Moreno-Ocampo stated that the money had originated from oil deals and was ‘siphoned off and kept off the books’ to pay militias and supporters, according to one lawyer close to the investigators.[220] Keeping the financial part of the crimes out of any official document appeared to be a political move by the former Prosecutor to gather support for the ICC proceedings regarding the Situation in Darfur, especially when taking into consideration the political and financial support that investigations need.[221] In the same batch of leaked cables, Moreno-Ocampo suggested that it would be good to ‘reassure China that its access to oil would not be jeopardized’.[222] An opportunity to comprehensively tackle the financial aspect of core crimes was missed because the OTP could have cooperated with domestic authorities to continue the investigation and prosecution of the money laundering. However, the money trail was picked up by other stakeholders. The US Department of Justice investigated BNP Paribas SA (‘BNP’), a French bank that processed approximately USD6.4 billion through the US financial system from July 2006 to June 2007 on behalf of the Sudanese government.[223] Using its Swiss-based subsidiary, BNP laundered money coming from Darfur, evading US economic sanctions imposed in response to the human rights abuses committed during the same period.[224] Despite a BNP manager describing the political environment in Sudan as ‘dominated by the Darfur crisis’, which was a ‘humanitarian catastrophe’, the financial institution deliberately continued to provide its banking services to launder money coming from the Sudanese government, favouring Al Bashir’s regime.[225] Years later in 2014, BNP entered into a guilty plea and agreed to pay a USD8.9 billion fine for its money laundering activities, including those related to Sudan.[226]
In the examples described above, it is possible to see how the commission of transnational crimes provided goods (eg arms trade) or services (eg money laundering) to perpetrators of core crimes. There is a tendency to analyse — albeit briefly — the provision of arms as a mode of liability to core crimes. This manner of adjudicating the multiple connections between core and transnational crimes is a quick fix to the regime of the Rome Statute, which only allows the ICC to analyse one aspect of the synergies described. Although the OTP recognises the value of financial investigations and asset recoveries to the investigation and prosecution of core crimes,[227] the analysis and reference to evidence gathered throughout the investigation phase is not immediately visible. Instead, the manner in which the ICC deals with financial investigations is twofold: publicly, it emphasises the need for financial investigations when dealing with core crimes;[228] secretly, it uses them as a pressure mechanism vis-à-vis the states involved in the situation to achieve cooperation or diplomatic support for the investigation and prosecution of core crimes, as seen in the leaked cables related to Al Bashir’s investigation.
The second type of interaction occurs when there is a ‘complete merger of both categories in the person of the perpetrator’.[229] States or entities implicated in the commission of core crimes directly engage in the commission of transnational crimes to make their operations feasible. These ‘dirty entanglements’ between the two types of crime can be identified in the use of illicit markets by state or non-state entities to finance their actions.[230] The illegal exploitation of natural resources in the DRC,[231] international drug trafficking in Colombia,[232] the illicit antiquities trade in Iraq and Afghanistan,[233] organ trafficking by Serbian paramilitaries in the context of the Yugoslav conflict[234] and other transnational crimes are means to finance the operations of state or non-state entities implicated in the commission of core crimes.[235] Restricting the analysis to the ICC case law, this section will focus on two of the examples presented above: the LRA in Uganda and the Revolutionary Armed Forces of Colombia (‘FARC’) in Colombia.
One example of this type of interaction between core and transnational crimes is the illegal exploitation of natural resources by the LRA to finance its operations, which included the commission of core crimes. Since the 1980s, the LRA had wanted to overthrow the Ugandan government on behalf of the Acholi people.[236] In 1994, the LRA left Uganda and was sheltered by Sudan’s government, which provided LRA leader Joseph Kony with supplies and arms.[237] After the peace agreement between the government of Sudan and the Sudan People’s Liberation Movement in 2005,[238] Kony fled to a remote area of what is now South Sudan, although continuing his operations in Garamba National Park, an environmental reserve that is home to elephants.[239] Dealing with the lack of funding for its cause, the LRA turned to the exploitation of natural resources — especially ivory poached from the elephants in the national park.[240] The ivory traded with merchants from South Darfur[241] and soldiers of the Sudanese army trained by Al Bashir[242] financed the LRA’s operations, providing it with money, food, uniforms, weapons and ammunition. The LRA also traded gold and diamonds looted from artisanal miners in the region,[243] which were used to finance bigger provisions of weapons and ammunition.
The UN Security Council recognised the relationship between the illegal exploitation of natural resources and the commission of war crimes by the LRA, which still threatens the security in the region.[244] In Resolution 2136, the Security Council recognised the
linkage between the illegal exploitation of natural resources, including poaching and illegal trafficking of wildlife, illicit trade in such resources, and the proliferation and trafficking of arms as one of the major factors fuelling and exacerbating conflicts in the Great Lakes region of Africa ...[245]
Against this backdrop, the OTP charged Dominic Ongwen with crimes against humanity and war crimes committed while Ongwen was a member of the LRA.[246] Although the illegal exploitation of natural resources is not a crime per se under the jurisdiction of the ICC, the Court failed to acknowledge in any manner the role that the trade of ivory and other natural resources played in the maintenance of the LRA. If core crimes are committed in a particular societal background, as those who advocate the idea of a separate label for core crimes argue,[247] it is in the ICC’s interest to address the impact of the illegal exploitation of natural resources on the commission of core crimes. In this regard, the OTP’s 2016 Policy Paper on Case Selection and Prioritisation is a welcome acknowledgment of the overarching context in which core crimes are committed, recognising the destruction of the environment and illegal exploitation of natural resources as elements to consider when analysing the gravity of the commission of core crimes.[248] The OTP further states that it is seeking to cooperate and provide assistance to states concerning conduct that constitutes crimes — naming the illegal exploitation of natural resources and arms trafficking as examples.[249] Notwithstanding this policy paper, there is no public example of such cooperation, casting doubt on whether it has occurred yet.
Another example of the commission of core and transnational crimes by the same set of perpetrators is international drug trafficking by non-state armed groups in Colombia. For over 50 years, Colombia has undergone an armed conflict between the state and several non-state armed groups from different political grounds.[250] In the view of the ICC, the most prominent ones are the FARC and National Liberation Army (‘ELN’) — both left-wing guerrilla groups — and the right-wing group Unified Self-Defence Forces of Colombia (‘AUC’).[251]
Although some of the conduct labelled as transnational crime is outside the ICC’s jurisdiction, the OTP started a preliminary examination of the Situation in Colombia in 2004.[252] On 24 November 2016, Colombia and the FARC signed a peace agreement,[253] and peace negotiations remain ongoing with the ELN.[254] The OTP is still analysing the situation, taking into account the new Special Jurisdiction for Peace, which is ‘designed to investigate and punish serious conflict-related crimes and to bring perpetrators to account’.[255] Although deserving a standalone section in the peace agreement between Colombia and the FARC,[256] the role of drug trafficking was not mentioned in the OTP’s reports on its preliminary examination activities.[257] Although drug trafficking is a crime outside the court’s jurisdiction, it has an important role in the historical and societal background of the commission of core crimes, exposing the ‘broad context of macro criminality’.[258] The interaction of armed groups with drug markets — especially in the case of FARC — was crucial to their operations and the commission of crimes under ICC scrutiny. Although the FARC initially was created as a Marxist-oriented guerrilla group supported by local sympathisers,[259] in the 1970s, the organisation grew to ‘18,000 armed combatants [with] control over 40 percent of Colombian territory’.[260] When illicit cocaine cultivation boomed in Colombia in the 1980s, the FARC took advantage of its territorial control and used drug trafficking to finance its operations, becoming an active military opponent of the Colombian government.[261] The FARC has engaged in illegal drug trade in two ways. From 1982 to 1991, it merely regulated the cocaine economy in its controlled territory, charging protection fees to narco-traffickers.[262] With the intensification of the armed conflict from 1991 onwards and the rise of state-supported narco-paramilitaries such as the AUC,[263] the FARC dismissed intermediaries and engaged directly in drug trafficking to finance its operations.[264] Between 2002 and 2009, the FARC furthered its connections with the cocaine commodity chain,[265] and other groups that joined the armed conflict also used drug trafficking to finance their operations. Drug trafficking was so embedded in the activities of those non-state armed groups that the arrest of high-level FARC officials on drug trafficking charges almost jeopardised the 2016 peace negotiations.[266]
Notwithstanding the importance of drug trafficking in the Colombian situation, the OTP failed to acknowledge the relationship drug trafficking has with core crimes in its reports on its preliminary examination activities. The OTP understands that it is fostering positive complementarity in Colombia with the maintenance of the preliminary examination, regarding itself as an influencer in the peace talks by indirectly participating in them with the assistance of Colombian institutions and civil society.[267] Oddly enough, the OTP mentioned in the 2018 report the existence of proceedings carried out by the Colombian Attorney-General’s office against Colombian businesspeople who financed the AUC and other paramilitaries,[268] even though those crimes fail to meet the substantive jurisdiction of the ICC. Its failure to acknowledge the role of drug trafficking in such financing could be related to the fact that this crime was discarded from the ICC’s jurisdiction during the drafting of the Rome Statute.[269] However, this silence backfired; the looming threat of the extradition of paramilitary leaders to the US based on drug trafficking charges halted the OTP’s influence in Colombia.[270] Of the 20 paramilitary members who were extradited, 15 did not participate in the transitional justice mechanism currently in force.[271] Ultimately, the fear of prosecution for transnational crimes committed by some of the perpetrators of core crimes exercised more influence in Colombia than the OTP and the associated potential proceedings on core crimes.
The difference between core and transnational crimes is not as clear as scholarship makes it out to be. As seen in the previous section, both types of crimes can occur in the same sociological space, creating synergistic relationships between them. However, the jurisdictional choices made in the drafting of the Rome Statute overlooked this relationship, instead artificially separating core crimes from other types of criminality that can be actually interconnected. Only the draft of the OTP’s Strategic Plan 2016–2018 recognised that strategies should be developed to prevent the commission of such crimes.[272] The draft went further, enumerating examples of the synergistic relationship described in the previous section, such as the illegal exploitation of resources and illegal trafficking in arms, humans and drugs.[273] However, this acknowledgment by the OTP did not last long. In the final version of the Strategic Plan 2016–2018, the provision that identified the connection between core and transnational crimes was modified, only drawing attention to the nexus between them so that ‘others can contribute to the closing of the impunity gap for ICC crimes, by addressing these crimes that fall outside of the Court’s jurisdiction’;[274] this was classified as strategic goal 9.[275] However, the Strategic Plan 2019–2021 only laterally mentioned ‘related’ crimes to core crimes.[276] The OTP, in some way, recognises the need to address this interconnection between core crimes and transnational crimes and that they occur in the same context. However, it leaves it to other actors to deal with transnational crimes because they fall outside the ICC’s jurisdiction.
The ICC could play an important role in addressing transnational crimes committed in connection with core crimes. Although amending the Rome Statute to include transnational crimes under its jurisdiction is politically improbable,[277] the Statute contains specific tools that can be used to deal with this phenomenon. While respecting the ICC’s jurisdictional limitations, the OTP could work closely with states and other organisations to curb such criminality, assisting them by sharing the evidence of transnational organised crimes gathered in the course of investigating core crimes (Part IV(A)). The OTP could also take advantage of the modes of liability in the Rome Statute to capture the synergistic relationship between core and transnational crimes (Part IV(B)). Addressing this relationship is not only a matter of ‘closing the impunity gap’.[278] Engaging with domestic authorities or using modes of liability to adjudicate conduct amounting to transnational crimes could also enhance the legitimacy of the ICC, dismissing critiques of selectiveness not only in what cases, but also in what crimes, it deals with.[279]
Considering the synergistic relationship between core and transnational crimes, it is likely that investigations into the former will also reveal evidence of the latter. The collection of evidence of transnational crimes depends on how the OTP carries out its investigations.[280] The first Prosecutor of the ICC had the policy of ‘focused investigations’,[281] selecting limited numbers of incidents to investigate and favouring low-cost,[282] short investigations that provided a sample of the gravest incidents and main types of victimisation.[283] This approach limited the amount of evidence collected in light of the need to expedite proceedings,[284] focusing on crimes under the Court’s jurisdiction. In contrast, the policy adopted by the second Prosecutor prioritised gathering a broader range of evidence and selecting crimes and suspects only when she considered evidence to be strong enough for trial.[285] This model favoured ‘in-depth, open-ended investigations’ while avoiding over-expanding its scope.[286]
The OTP’s Strategic Plan 2016–2018 elaborates on the meaning of ‘open-ended investigations’, clarifying that investigators should first identify crimes or incidents to be investigated and then identify the alleged perpetrators on the basis of the evidence collected.[287] In so doing, the OTP aims to accurately portray the elements of system criminality that enable the commission of core crimes.[288] Investigating core crimes by casting a wide net to collect information that can turn into evidence makes the OTP more likely to also gather evidence of the commission of transnational crimes and their perpetrators. Considering the ICC’s lack of jurisdiction over transnational crimes, evidence of their commission eventually gathered by the OTP cannot be used in the ICC. However, that evidence can be shared with relevant stakeholders, states or international organisations and entities that can properly investigate and prosecute them.
Cooperation between the OTP and relevant stakeholders can take two forms. The first is through informal consultation and cooperation. In 2009, the OTP, national law enforcement agencies and other institutions created the Law Enforcement Network (‘LEN’),[289] an informal network that puts together professionals who are investigating and prosecuting international and domestic crimes in situations investigated by the ICC. Such a network therefore allows these professionals to exchange information and relevant evidence; provide each other with legal, technical and operational assistance; and share expertise through training.[290] The LEN’s focus is to increase the number of prosecutions for crimes within the Court’s jurisdiction or related serious crimes under national law before domestic courts.[291] If transnational crimes are understood as falling under the category of ‘serious crimes under national law’, this network could be used to share evidence gathered by OTP investigators. Considering that the LEN is an informal channel of cooperation, there is more leeway for domestic authorities and international prosecutors to determine which crimes are under the category of ‘serious crimes under national law’.
The LEN was activated in Libya. Initially, the OTP investigators were ‘examining information related to attacks on migrant workers’.[292] In 2017, given the progress made in the investigations, the OTP found that ‘certain crimes allegedly committed against migrants in Libya may fall within the jurisdiction of the Court’,[293] labelling the country as a ‘marketplace for the trafficking of human beings’.[294] Although focusing on core crimes, the OTP emphasised that, following its Strategic Plan 2016–2018, it was working with Libya and relevant actors to address ‘[t]he complex and volatile situation in Libya comprising allegations of a wide range of international, transnational and domestic crimes’ by providing assistance to relevant national authorities for their own investigations and prosecutions.[295] The OTP also stated that it was liaising with European Union agencies such as Eurojust and Europol to streamline investigative and prosecutorial activities regarding crimes against migrants.[296]
Formally, the cooperation of the ICC with — and its assistance to — states is regulated under art 93(10) of the Rome Statute,[297] referred to as ‘reverse cooperation’ provided by the Court for the benefit of states.[298] Such cooperation involves the transmission of statements, documents and other evidence-gathering mechanisms that allow states to question a person detained by order of the ICC, provided that safeguards concerning the protection of witnesses and victims and the confidentiality of the evidence are met.[299] For states not party to the Rome Statute, the ICC has the discretion to grant a request for assistance under art 93(10)(c).[300] The ICC is also under no obligation to comply with a cooperation request submitted by a state in accordance with sub-para (a) of the same article.[301] This cooperation is directly linked with the complementarity test.[302] It only occurs upon the request of a state and if that request is related to any of two types of crimes: those within the ICC’s jurisdiction and serious crimes under the national law of the requesting state.[303] In the same fashion as informal cooperation, there is room to argue that the category of ‘serious crimes under national law’ also comprises transnational crimes, depending on the Chamber’s assessment. Entertaining a request from the Republic of Kenya pursuant to art 93(10) of the Rome Statute, Pre-Trial Chamber II analysed the article’s requirements. The state in question should at least have ‘either conducted an investigation, or be doing so with respect to “conduct which constitutes a crime within the jurisdiction of the Court or which constitutes a serious crime under the national law of the requesting State”’.[304] The Chamber stated that the state party must show that it is ‘at a minimum investigating or has already investigated’ these crimes[305] and that the failure to meet this requirement is a sufficient reason for the dismissal of the request.[306]
Although dubbed a tool of ‘mutual legal assistance’,[307] art 93(10) of the Rome Statute falls short of the ‘mutual legal assistance’ referred to in most suppression conventions.[308] The application of this ‘reverse cooperation’ provision for the OTP to share evidence of transnational crimes with states entails two problems. The first pertains to the meaning of ‘serious crimes under the national law’. Although the expression was meant to distinguish between ‘ordinary and international crimes’,[309] neither the Rome Statute nor its travaux préparatoires discuss what may constitute ‘serious crimes under the national law’. Hence, the ICC has discretion to decide what crimes may be considered ‘serious crimes under the national law’ of a requesting state, regardless of whether they are transnational crimes or not.
A second problem with art 93(10) of the Rome Statute concerns the activation of this cooperation mechanism only by the request of a state. This structure undermines the efficiency of the cooperation tool because it is cumbersome for the OTP to collect and conserve evidence of transnational crimes but then have to wait for the request of an interested state that may be unaware of their occurrence. One solution to this is already provided as part of the cooperation framework between states in transnational criminal law in the form of a ‘spontaneous exchange of information’ — independent from a prior request — which is envisaged in art 18(4) of the United Nations Convention against Transnational Organized Crime[310] and art 7 of the Convention on Mutual Assistance in Criminal Matters between the Member States of the European Union.[311] States could be ignorant of the occurrence of transnational crimes in their territories, and the OTP’s spontaneous cooperation could trigger domestic investigations and prosecutions.[312] One reason why this tool could be transposed to the framework of the ICC is art 14(6) of the International Law Commission’s Draft Convention on Crimes against Humanity.[313] This draft convention seeks to provide a standardised framework regarding legal aspects of crimes against humanity, such as conduct to be criminalised domestically as well as mechanisms of interstate cooperation.[314] The provision in art 14(6) of the Draft Convention on Crimes against Humanity — which includes cooperation mechanisms regarding the sharing of evidence — is still limited to interstate cooperation, failing to address the issue when it is related to the cooperation between the OTP and states.[315]
The OTP could also cooperate with international organisations and entities to share evidence of transnational crimes collected in investigations of core crimes. Such cooperation is permitted under arts 54(3)(c) and (d) of the Rome Statute, which provide that the Office can enter into cooperation agreements with intergovernmental organisations or arrangements that are not inconsistent with the Rome Statute.[316] Several memoranda or agreements have been signed between the ICC and international organisations or entities, such as with the Commonwealth on cooperation[317] and with the EU regarding cooperation and assistance.[318] To be effective, such agreements should clearly state whether evidence of transnational crimes is within the scope of cooperation. Usually coined in broad terms, these agreements often mention only that the parties will cooperate to discharge themselves of mutual interests, with no description of the scope of the cooperation.[319] This is the case of the agreement between the International Criminal Police Organization-INTERPOL (‘INTERPOL’) and the OTP, which provides that they ‘shall maintain contact on a regular basis and exchange information on matters of mutual interest’.[320] Although focused on the provision of assistance in locating and apprehending fugitives, this cooperation channel could also be used by the OTP to transmit information and evidence of transnational crimes to INTERPOL, which, in turn, has a mandate to promote the widest possible mutual assistance between domestic criminal police authorities.[321]
Considering both informal and formal settings in which the OTP cooperates with states and international organisations and entities, an informal setting is more promising in terms of sharing evidence of transnational crimes. The formal setting established in art 93(10) of the Rome Statute demands the prior request of a state, and it is unclear whether transnational crimes could be within the scope of ‘serious crime[s] under the national law’.[322] Furthermore, there is not enough clarity on whether transnational crimes are covered by cooperation agreements between the OTP and international organisations and entities under arts 53(3)(c) and (d) of the Rome Statute; instead, such scope can only be inferred from the mandates of the parties to those agreements such as INTERPOL. Such uncertainty could limit the potential of the OTP cooperating with international and intergovernmental organisations and, ultimately, lead to problems with the chain of custody of the evidence shared through these channels. Formal cooperation could thus benefit from the existing cooperation framework in transnational criminal law, such as the spontaneous exchange of evidence and information.
On the other hand, the informal cooperation setting is a practical way of sharing evidence of transnational crimes with states and relevant entities. The LEN — despite suffering from a similar problem regarding what crimes are within its scope of cooperation — allows those participating in it to agree on what evidence should be shared among them. As an informal cooperation scheme, it can be adapted to the interests of the parties. Nevertheless, these two pathways allow the OTP to cooperate with states and international organisations and entities. A more transparent framework regarding whether and how the OTP could spontaneously exchange evidence and information is warranted to further the OTP’s goal of closing the impunity gap, especially when considering the synergistic relationship between transnational and core crimes.
Individual criminal liability for transnational crimes is not the same as liability for core crimes. It is still directly linked to domestic jurisdictions, with states cooperating among themselves to investigate and prosecute perpetrators.[323] As seen in Part III, these two types of crimes often become intertwined, making it difficult to distinguish between perpetrators of core and transnational crimes. In situations where this synergistic relationship exists, conduct amounting to transnational crime could be analysed under the elements of modes of liability to core crimes. This would provide a direct connection between transnational crimes and the Rome Statute, although the latter does not directly give the ICC jurisdiction over transnational crimes (Part IV(B)(1)). However, as will be discussed in this section, the use of international criminal law to address the synergistic relationship between core and transnational crimes has conceptual and practical limitations, presenting a risk of under-representing the criminal responsibility of perpetrators of transnational crimes (Part IV(B)(2)).
The ICC already has incipient jurisprudence recognising some instances of transnational crime as contributions to core crimes.[324] However, those decisions are restricted to the provision of weapons and ammunition through the illegal arms trade. Although illegal arms trade is an essential contribution in the commission of core crimes, it is not the only transnational crime committed in the context of core crimes. It is therefore necessary to investigate how and whether the modes of liability in the Rome Statute can properly address the relationship between core crimes and transnational crimes.
The first consideration is whether conduct that amounts to transnational crime could also amount to the direct commission of core crimes under the modes of liability in art 25(3)(a) of the Rome Statute.[325] Those modes of liability are classified as the individual or joint commission of core crimes.[326] Analysing conduct labelled as transnational crime under the heading of ‘direct commission of core crimes’ would put perpetrators of transnational crimes under the jurisdiction of the ICC. This interpretation does not seem to cover situations where core and transnational crimes are directly committed by the same perpetrators. Notwithstanding this apparent subversion of the jurisdictional choices of the Rome Statute, direct modes of liability could be used when transnational crimes also transversely proscribe conduct labelled as core crimes. For instance, this could include trafficking in persons — due to its addition to art 7(2)(c) of the Rome Statute[327] — and torture under arts 7(1)(f) and 7(2)(e),[328] provided that these crimes meet the contextual elements of the crime against humanity. Another possibility is to capture the transnational crime of illegal exploitation of natural resources[329] as part of the direct perpetration of the war crime of pillaging under arts 8(2)(b)(xvi) or (e)(v),[330] depending on the nature of the conflict.[331]
Similar problems can be identified in the modes of liability covered by art 25(3)(b) of the Rome Statute. Sub-paragraph (b) establishes forms of participation related to the encouragement of the commission of core crimes, covering the ordering, soliciting or inducing of a core crime.[332] Ordering the commission of core crimes is related to an instruction addressed to specific individuals requiring an action.[333] Since this order must be related to the commission of core crimes, conduct amounting to a transnational crime could be examined under this heading only if it were also labelled a core crime. On the other hand, the conduct of soliciting or inducing is open-ended, meaning that a transnational crime could be covered as a mode of liability to a core crime. The causation between soliciting or inducing and committing a core crime is related to persuasion, not only through speeches[334] but also through other forms of (physical) coercion.[335] Therefore, conduct that is a transnational crime — or the proceeds thereof — could be seen as inducing core crimes, depending on the context.
Notwithstanding the difficulties in assessing transnational crimes in the framework of the principal forms of commission under the Rome Statute, some accessorial modes of liability such as assistance (aiding and abetting) and contribution could be used to address the synergistic relationship between transnational and core crimes. While there is a tendency of limiting the scope of accessorial modes of liability,[336] the threshold of causal contribution they encompass could allow the analysis of transnational crimes.[337] For instance, take aiding, abetting and assisting as provided under the Rome Statute. This mode of liability is directed to persons who facilitate the commission of a core crime, described by art 25(3)(c) as including the act of providing the means for the commission of those crimes.[338] Slightly different from analogous modes of liability set out by ad hoc tribunals,[339] an act that amounts to aiding, abetting or assisting must facilitate or further the commission of the crime, indicating ‘that the person indeed assisted in its commission’,[340] which could only be proven in light of the facts of each case.
Considering the smaller role played by aiders, abetters and assistants in comparison to those who fit under the principal modes of liability, they could thus be framed under art 25(3)(c) of the Rome Statute. Applying this mode of liability also requires the analysis of perpetrators’ mens rea to confirm that they were involved ‘for the purpose of facilitating the commission of ... a crime’.[341] This purposive standard adds to the normal mental elements in art 30,[342] meaning that it is sufficient that the aider or abettor meant to cause the commission of core crimes or was aware that such crimes would occur in the ordinary course of events; it is unnecessary for the perpetrator to know the precise offence or its specific circumstances.[343] Following such logic, arms dealers who deliberately provide weaponry to armed groups committing core crimes could be held accountable under art 25(3)(c) of the Rome Statute if it is proven that they knew that those weapons would be used in the commission of such crimes.[344] This mode of liability seems restricted to perpetrators of transnational crimes who provide goods and services to facilitate core crimes, and the provision of weaponry is the clearest example of it.
Ultimately, the mode of liability of ‘contribution’ in art 25(3)(d) of the Rome Statute may be the best fit for addressing the synergistic relationship between transnational and core crimes.[345] Article 25(3)(d) focuses on those contributions that reach a certain threshold of significance to be within the ICC’s ambit.[346] Hence, to fit in art 25(3)(d) of the Rome Statute, the contribution of conduct should be significant — although lower in comparison with other modes of liability.[347] The threshold of contribution thus excludes contributions made by ‘every landlord, every grocer, every utility provider, every secretary, every janitor or even every taxpayer’[348] who provides services and commodities available in an open market.[349] However, the situation is different when the goods and services supplied to perpetrators of core crimes are not available in an open market, such as weapons, ammunition, explosives or drugs,[350] which are limited by transnational criminalisation.[351]
The other two material elements were stated by Pre-Trial Chamber I in the confirmation of charges in Mbarushimana. Besides contributing to the commission of a crime, conduct fitting within art 25(3)(d) must fall within the jurisdiction of the ICC and must be attempted or committed by ‘a group of persons acting with a common purpose’.[352] Pre-Trial Chamber I stated that this type of agreement or common plan would be understood in the same sense provided in art 25(3)(a) of the Rome Statute; the common purpose, which can be inferred, ‘must include an element of criminality but does not need to be specifically directed at the commission of a crime’.[353]
The subjective elements of the mode of liability under art 25(3)(d) of the Rome Statute require the contribution to be intentional.[354] Pre-Trial Chamber I, addressing this requirement, stated that this ‘intentionality’ includes an additional element that links the contribution to the crimes under the ICC’s jurisdiction.[355] Moreover, this contribution must either be made ‘with the aim of furthering the criminal activity or criminal purpose of the group’ or with ‘knowledge of the intention of the group to commit the crime’.[356] As discussed in Part III, Pre-Trial Chamber I stated in obiter dicta that such a contribution can be identified in the hypothetical case of arms dealers knowing that the weapons provided by them will be used to commit war crimes.[357]
It is possible to further this hypothetical exercise and imagine that a perpetrator who commits transnational crimes linked to core crimes, such as laundering the proceeds of war crimes (ie pillaging), or providing funds to armed groups through drug trafficking or the illegal exploitation of natural resources, could also be seen as contributing to the commission of core crimes. An obstacle to using this mode of liability to address the relationship between transnational and core crimes would be the requirement to prove that the transnational crime was committed to further the commission of a core crime or its criminal purpose, or that the perpetrator had knowledge of the intention of the group to commit the crime. Considering the sophisticated networks in which transnational organised crimes are committed,[358] this evidence may be difficult to obtain.
However, trying to examine transnational crimes under the modes of liability could be the same as fitting a square peg into a round hole. Limiting the analysis of transnational crimes to modes of liability for core crimes could under-represent the role of transnational criminality in contexts where there is a synergistic relationship between them. Transnational crimes would continue to be relegated as secondary to core crimes, reflecting the arbitrariness of the substantive jurisdictional choices in the Rome Statute. Notwithstanding the theoretical limitations for using modes of liability to address the synergistic relationship between core and transnational crimes, looking through the narrow lenses of international criminal law to address such a relationship also has conceptual and practical limitations.
One problem is that stretching the definition of core crimes may violate the principle of legality under art 22 of the Rome Statute.[359] The modes of liability are directed to the definitions of core crimes in arts 5–9[360] — definitions that should be prescribed by law in advance, like any intervention of criminal law.[361] The Prosecutor charging (and the Chambers later adjudicating) conduct as modes of liability where that conduct is not expressly prohibited under the Rome Statute would undermine the certainty of the expressly prohibited conduct. In this regard, art 22 specifically states that conduct under consideration by the ICC must come within the definition of ‘a crime within the jurisdiction of the Court’, which should be narrowly interpreted, the use of analogy being largely prohibited.[362]
Even if the problem of the principle of legality is overcome, there is another problem relating to the limited scope of the transnational crimes that could be fitted under art 25(3) of the Rome Statute. As discussed in the previous section, direct perpetration under art 25(3)(a) is only available when conduct amounts to both a transnational and a core crime, thus limiting the alternatives available for prosecuting transnational crimes in such a way. Only by analysing aiding, abetting or assisting under art 25(3)(c) and contributing under art 25(3)(d) of the Rome Statute can we widen the scope of transnational crimes. The thresholds of the actus reus and mens rea required to apply those accessorial modes of liability allow certain transnational crimes to be examined as contributors to the commission of core crimes. However, this examination is limited to transnational crimes that provide goods, funds and services to the commission of core crimes, such as the illegal arms trade.
A further problem created by using modes of liability in the Rome Statute to address transnational crimes committed in synergy with core crimes arises from the interaction between domestic and international criminal jurisdictions. If transnational crimes — primarily domestic crimes — are investigated and prosecuted by the ICC, it is not clear whether the ne bis in idem principle would hamper the prosecution of perpetrators of transnational crimes in domestic jurisdictions, provided that the same conduct were being adjudged in the domestic criminal court — even though for a different crime. Article 20 of the Rome Statute provides the scope of the ne bis in idem principle for prosecutions of core crimes at an international or domestic level, but it does not mention prosecution of other crimes such as transnational crimes.[363] On the other hand, the International Covenant on Civil and Political Rights focuses in art 14(7) not on whether the act or conduct for which a person is being tried is the same but on whether the offence is the same.[364] However, it is not clear whether conduct that amounts to a transnational crime in a domestic jurisdiction and is tried as a form of direct or accessorial participation to a core crime in the ICC would hamper domestic prosecution of that conduct as a transnational crime. However, if the principle of ne bis in idem is to be regarded as a human right,[365] further analysis on how to accommodate this situation is warranted.
Lastly, expanding the breadth of international criminal law to cover conduct regarded as transnational crime presents a risk of under-representing the criminal responsibility of perpetrators of transnational crimes. If they are considered aiders and abettors or contributors to the commission of core crimes instead of being domestically punished as principal perpetrators of transnational crimes, there is a possibility that the sentences will not correctly express the seriousness of the crimes and the participation of the perpetrators in system criminality.[366] This misrepresentation would only confirm — and perpetuate — the disavowal that the subject of transnational criminal law received from the international community during the debates leading up to the Rome Statute, which relegated transnational crimes to the ‘periphery’ of international crime. On the other hand, the ICC’s adjudication of instances of transnational crime in connection with core crimes could be beneficial when states are unable or unwilling to prosecute the former, due to the expressivist and deterrent roles of the sentences and convictions in an international criminal court.[367] Depending on how it is framed, the recognition of the synergistic relationship between transnational and core crimes — as seen in the case of Prosecutor v Taylor in the SCSL[368] — may send a message of accountability and deterrence to future perpetrators.[369] However, such teleological analysis of the impact of recognising the synergistic relationship and punishing the conduct can only be done theoretically because the ICC has not clearly adjudicated such a case.
The differences between core and transnational crimes proposed by scholars and diplomats are compelling at first glance, especially for justifying the narrow substantive jurisdiction of the ICC. These differences provide distinctive qualities to the categories of core crimes, putting the conduct selected for such a category on the pedestal of international criminal law. To justify such elevation, scholars and diplomats have argued that core crimes are meant to proscribe conduct that first, harms specific legal goods owned by the international community; secondly, has certain contextual elements that require the international community to intervene in the criminal adjudication; and thirdly, is committed in the name of a state or by state officials. Ordinary crimes — transnational crimes included — are excluded from this definition and in this sense are excluded from the substantive jurisdiction of the ICC and from the academic world of international criminal law. It is as if core and transnational crimes occupy opposite extremes with unbridgeable differences.
However, as discussed in Part II, the traditional grounds used to distinguish core from transnational crimes are not exclusive to them because transnational crimes can share the same distinctive elements. First, the selection of conduct as core crimes based on a comprehensive theory of legal goods does not provide a clear distinction between core and transnational crimes because both proscriptions can protect the same legal goods. Transnational crimes also depend on certain contextual elements to capture the sociological background of their commission, describing elements of macro-criminality and especially the scale and impact of their commission. Moreover, core and transnational crimes — rather than being committed by different sets of perpetrators — can both be seen through the same lens of system criminality. Both sets of crimes are often committed by complex networks of perpetrators, generating mass victimisation and the violation of collective interests. Part II concludes by arguing that the differences between core and transnational crimes are not based on solid legal analysis but on political choices, preventing a distinction based on theoretical grounds.
The analysis of ICC case law in Part III demonstrates that such separation is somewhat artificial because there are instances of transnational crime committed in the same context as core crimes adjudicated by the Court. In the first type of synergistic relationship between the two, transnational crimes provide goods and services to perpetrators of core crimes in a mutually reinforcing relationship. For instance, in the Situations in the DRC and Uganda, the illegal arms trade has played an important role in supplying weapons and ammunition to rebel groups. Moreover, in the Situation in Darfur, transnational financial crimes were the means for Al Bashir to siphon his money out of Sudan and into the US. A second type of this synergistic relationship occurs when transnational crimes are committed by the perpetrators of core crimes. International drug trafficking by armed groups (as seen in the Situation in Colombia) and the illegal exploitation of natural resources (as seen in the Situation in Uganda) are ways for the proceeds of transnational crimes to directly feed the commission of core crimes, showing the close connection between core and transnational crimes. In addition to the theoretical challenges posed by the traditional grounds for distinguishing core crimes as a separate category, Part III describes the cases where the OTP and ICC have verified occurrences of a synergistic relationship of core and transnational crimes.
Although the recognition of a synergistic relationship between core and transnational crimes is still incipient, the ICC has acknowledged parts of it. Part IV showed that the OTP — in its efforts to close the impunity gap — has recognised in its strategic plans how these two types of crimes are mutually reinforced. On the other hand, the ICC has discreetly recognised that some transnational crimes, such as the illegal arms trade, could contribute to the commission of core crimes. The ICC could go further in acknowledging this synergistic relationship. Expanding on those incipient practices by the ICC, this article has analysed two ways this could be done. The first is related to how the OTP could share evidence of transnational crimes with interested states and international organisations to foster domestic prosecutions of transnational crimes, indirectly bridging the gap between core and transnational crimes. This cooperation is more likely to succeed through informal channels of cooperation, considering that arts 93(10) and 53 of the Rome Statute depend on states’ requests and do not clearly cover transnational crimes. On the other hand, when dealing with closely related transnational and core crimes, the OTP and ICC could examine conduct that amounts to transnational crime as modes of liability under the Rome Statute. To capture the role of transnational crimes in the commission of crimes, the OTP and the ICC are limited when it comes to principal participation. Accessorial forms of liability such as aiding, abetting, assisting or contributing to the commission of core crimes are the best tools to analyse the synergistic relationship between core and transnational crimes. However tempting, this direct bridge faces challenges because it would stretch the modes of liability and definitions of crime to fit conduct of transnational crime, highlighting the myopic view of the Rome Statute when it comes to the reality on the ground.
As seen through this article, bridging the gap between transnational and core crimes using the Rome Statute as a connector is possible. But the proposed solutions also underscore the problems of using international criminal law to capture the connection between these two criminal phenomena. The myopic jurisdictional choices of the drafters of the Rome Statute — who intentionally favoured the criminalisation of some ‘core’ crimes over others — distort the reality of the intricate, complex and mutually reinforcing relationships between these two types of crimes. Therefore, it is questionable whether international criminal law as construed so far could harbour such a relationship, considering the artificiality in the selection of criminalised conduct. Hence, this article aimed to highlight this artificiality by analysing the synergistic relationship of core and transnational crimes, thereby reimagining future settings of international criminal justice where such a relationship is taken into account.
* Attorney at Law. LLM, University for Peace and United Nations Interregional Criminal and Justice Research Institute (UNICRI); LLM in Advanced Studies in Public International Law (cum laude), Grotius Centre for International Legal Studies, Leiden University. The author would like to thank Dr Sergey Vasiliev and Paula Baldini Miranda da Cruz for their review and insights on the paper. The author would also like to thank the Melbourne Journal of International Law editorial team and the anonymous reviewers for their comments. The views expressed herein are those of the author in his personal capacity and do not necessarily represent those of any organisation with which he is or was affiliated. This article is based on the Advanced LLM thesis the author submitted in fulfilment of the requirements of the Master of Laws: Advanced Studies Programme in Public International Law degree, Leiden Law School, Leiden University.
[1] Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187 UNTS 3 (entered into force 1 July 2002) (‘Rome Statute’).
[2] Ibid Preamble para 3.
[3] Ibid Preamble para 4.
[4] International Criminal Responsibility of Individuals and Entities Engaged in Illicit Trafficking in Narcotic Drugs across National Frontiers and Other Transnational Criminal Activities: Establishment of an International Criminal Court with Jurisdiction over such Crimes, GA Res 44/39, UN GAOR, 6th Comm, 44th sess, 72nd plen mtg, Supp No 49, UN Doc A/RES/44/39 (4 December 1989).
[5] United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Final Documents, UN Doc A/CONF.183/13 (Vol. I) (2002) 71-2.
[6] Roger O’Keefe, International Criminal Law (Oxford University Press, 2015) 57–64.
[7] While there is an overlap between international and transnational crimes, the latter are not only committed congruently with international crimes.
[8] Sara Wharton, ‘Redrawing the Line? Serious Crimes of Concern to the International Community beyond the Rome Statute’ (2014) 52 Canadian Yearbook of International Law 129, 131-2.
[9] Ibid 132.
[10] See Christine Schwöbel-Patel, ‘The Core Crimes of International Criminal Law’ in Kevin Jon Heller et al (eds), The Oxford Handbook of International Criminal Law (Oxford University Press, 2020) 768, 769.
[11] See Neil Boister, ‘International Tribunals for Transnational Crimes: Towards a Transnational Criminal Court?’ (2012) 23(4) Criminal Law Forum 295, 297.
[12] See James Chalmers and Fiona Leverick, ‘Fair Labelling in Criminal Law’ (2008) 71(2) Modern Law Review 217.
[13] Talita de Souza Dias, ‘Recharacterisation of Crimes and the Principle of Fair Labelling in International Criminal Law’ (2018) 18(5) International Criminal Law Review 788, 794.
[14] Chalmers and Leverick (n 12) 226.
[15] Ibid 224–5. See also Mikaela Heikkilä, ‘Coping with International Atrocities through Criminal Law: A Study into the Typical Features of International Criminality and the Reflection of These Traits in International Criminal Law’ (PhD Thesis, Åbo Akademi University, 2013) 169.
[16] Andrew Ashworth, Principles of Criminal Law (Oxford University Press, 6th ed, 2009) 78.
[17] Chalmers and Leverick (n 12) 238–9.
[18] Hilmi M Zawati, Fair Labelling and the Dilemma of Prosecuting Gender-Based Crimes at the International Criminal Tribunals (Oxford University Press, 2014) 52.
[19] de Souza Dias (n 13) 795.
[20] Rome Statute (n 1) art 5.
[22] See Paola Gaeta, ‘International Criminalization of Prohibited Conduct’ in Antonio Cassese (ed), The Oxford Companion to International Criminal Justice (Oxford University Press, 2009) 63.
[23] Ryan Liss, ‘Crimes against the Sovereign Order: Rethinking International Criminal Justice’ (2019) 113(4) American Journal of International Law 727, 727.
[24] Ibid 738.
[25] See, eg, United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Summary Records of the Plenary Meetings and of the Meetings of the Committee of the Whole, UN Doc A/CONF.183/13 (Vol. II) (2002) 68 [60] (Sweden), 68 [63] (Canada), 72 [121] (Observer for the Children’s Caucus International), 73 [18] (Algeria) (‘Summary Records’). See also United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Reports and Other Documents, UN Doc A/CONF.183/13 (Vol. III) (2002) 70 n 241, 209, 217, 228, 250.
[26] Summary Records, UN Doc A/CONF.183/13 (Vol. II) (n 25) 73 [18] (Algeria).
[27] See, eg, ibid 74 [21] (Czech Republic), 93 [28] (Zambia), 107 [25] (Bangladesh).
[28] See, eg, ibid 75 [42] (Latvia), 80 [123] (Observer for Amnesty International).
[29] Ibid 109 [48] (Malaysia).
[30] Ibid 172 [32] (Norway).
[31] See ibid 178 [136] (Italy).
[32] Ibid 270 [32] (Japan).
[33] See John Dugard, ‘Obstacles in the Way of an International Criminal Court’ (1997) 56(2) Cambridge Law Journal 329, 334-5.
[34] See Schwöbel-Patel (n 10) 784-90. Christine Schwöbel-Patel speaks of three biases: first, a civilisation bias, referring to the political dynamics between the ‘North–South division’ in international law and, most specifically, between the ‘civilised’ and ‘uncivilised’; secondly, a political-economic bias, closely related to the civilisation one, referring to the economic benefits that states gain when prosecuting certain conduct in order to hide flows of money, especially in the global capital flows that, for example, are present in drug trafficking or money laundering; and thirdly, an aesthetical bias, which refers to the direct focus on physical violence and atrocities in opposition to the equally hurtful but slow-paced violence of crimes like drug trafficking or money laundering. Those biases, as explained by Schwöbel-Patel, are interconnected and mutually reinforcing, benefitting economically powerful states and individuals.
[36] For an overview, see Wharton (n 8) 156–67. See also Terje Einarsen, The Concept of Universal Crimes in International Law (Torkel Opsahl Academic EPublisher, 2012) 150–68; Liss (n 23).
[37] See Schwöbel-Patel (n 10). See also Wharton (n 8) 135–56.
[38] See Robert Cryer, Prosecuting International Crimes: Selectivity and the International Criminal Law Regime (Cambridge University Press, 2005) ch 5.
[39] See Antonio Cassese, International Criminal Law (Oxford University Press, 2nd ed, 2008) 11.
[40] Kevin Jon Heller, ‘What Is an International Crime? (A Revisionist History)’ (2017) 58(2) Harvard International Law Journal 353, 354.
[41] O’Keefe (n 6) 56, citing Jacobellis v Ohio, [1964] USSC 164; 378 US 184, 197 (Stewart J) (1964).
[42] Neil Boister, ‘“Transnational Criminal Law”?’ (2003) 14(5) European Journal of International Law 953, 954.
[43] Iryna Marchuk, The Fundamental Concept of Crime in International Criminal Law: A Comparative Law Analysis (Springer, 2014) 113-14.
[45] Mikkel Jarle Christensen, ‘Crafting and Promoting International Crimes: A Controversy among Professionals of Core-Crimes and Anti-Corruption’ (2017) 30(2) Leiden Journal of International Law 501, 511.
[47] M Cherif Bassiouni, ‘International Crimes: The Ratione Materiae of International Criminal Law’ in M Cherif Bassiouni (ed), International Criminal Law (Martinus Nijhoff Publishers, 3rd ed, 2008) vol 1, 129, 139 (‘International Crimes’).
[48] Gerhard Werle and Florian Jessberger, Principles of International Criminal Law (Oxford University Press, 3rd ed, 2014) 170.
[49] See David Luban, ‘State Criminality and the Ambition of International Criminal Law’ in Tracy Isaacs and Richard Vernon (eds), Accountability for Collective Wrongdoing (Cambridge University Press, 2011) 61 (‘State Criminality’).
[50] Carsten Stahn, A Critical Introduction to International Criminal Law (Cambridge University Press, 2019) 416. See also Einarsen (n 36) 295–301. On the issue of fluidity and how ‘extraordinary crimes’ can be fitted into old or new categories, Terje Einarsen creates a new theoretical definition called ‘universal crimes’, defined as
certain identifiable acts that constitute grave breaches of rules of conduct; and that are committed, organised or tolerated by powerful actors; and that, according to contemporary international law, are punishable whenever and wherever they are committed; and that require prosecution and punishment through fair trials, or in special cases, some other kind of justice, somewhere at some point.
Einarsen (n 36) 22. Such categorisation encompasses some of the transnational crimes dealt with by suppression conventions, such as crimes against UN personnel, money laundering, piracy, terrorism and trafficking in persons, weapons and drugs. For the classification of conduct, see at 319–28.
[51] See M Cherif Bassiouni, ‘The Sources and Content of International Criminal Law: A Theoretical Framework’ in M Cherif Bassiouni (ed), International Criminal Law (Martinus Nijhoff Publishers, 2008) vol 1, 4, 39–46.
[52] See Santiago Mir Puig, ‘Legal Goods Protected by the Law and Legal Goods Protected by the Criminal Law as Limits to the State’s Power to Criminalize Conduct’ (2008) 11(3) New Criminal Law Review 409, 410, 413.
[53] Kai Ambos, ‘The Overall Function of International Criminal Law: Striking the Right Balance between the Rechtsgut and the Harm Principles’ (2015) 9(2) Criminal Law and Philosophy 301, 305 (‘The Overall Function of International Criminal Law’).
[54] Albin Eser, ‘The Principle of “Harm” in the Concept of Crime: A Comparative Analysis of the Criminally Protected Legal Interests’ (1965–66) 4(3) Duquesne University Law Review 345.
[55] Ambos, ‘The Overall Function of International Criminal Law’ (n 53) 309.
[56] Ibid 305.
[58] Kai Ambos, Treatise on International Criminal Law (Oxford University Press, 2013–16) vol 1, 64–5.
[59] Darryl Robinson, ‘A Cosmopolitan Liberal Account of International Criminal Law’ (2013) 26(1) Leiden Journal of International Law 127, 132.
[60] Winfried Hassemer, ‘The Harm Principle and the Protection of “Legal Goods” (Rechtsgüterschutz): A German Perspective’ in AP Simester, Antje du Bois-Pedain and Ulfrid Neumann (eds), Liberal Criminal Theory: Essays for Andreas von Hirsch (Hart Publishing, 2014) 187, 203–4.
[62] Ibid 413.
[63] Claus Roxin, Derecho Penal [Criminal Law], trs Diego-Manuel Luzón Peña, Miguel Díaz y García Conlledo and Javier de Vicente Remesal (Civitas, 1997) vol 1, 65.
[64] Markus Dirk Dubber, ‘Theories of Crime and Punishment in German Criminal Law’ (2005) 53(3) American Journal of Comparative Law 679, 684, quoting Hans-Heinrich Jescheck and Thomas Weigend, Lehrbuch des Strafrechts: Allgemeiner Teil [Criminal Law Textbook: General Part] (Duncker & Humblot, 5th ed, 1996) 7.
[66] Ibid.
[67] Bassiouni, ‘International Crimes’ (n 47) 176.
[68] Ibid 136, 138–9.
[69] Cassese (n 39) 11 (emphasis in original).
[70] Boister, ‘“Transnational Criminal Law”?’ (n 42) 970.
[71] Hedley Bull, ‘The Grotian Conception of International Society’ in Herbert Butterfield and Martin Wight (eds), Diplomatic Investigations: Essays in the Theory of International Politics (George Allen & Unwin, 1966) 51, 68.
[72] Cassese (n 39) 11; Bassiouni, ‘International Crimes’ (n 47) 138–9.
[73] Boister, ‘“Transnational Criminal Law”?’ (n 42) 965–6.
[74] Summary Records, UN Doc A/CONF.183/13 (Vol. II) (n 25) 73 [18] (Algeria). For the reasons why treaty crimes were not included within the ICC’s jurisdiction, see Neil Boister, ‘The Exclusion of Treaty Crimes from the Jurisdiction of the Proposed International Criminal Court: Law, Pragmatism, Politics’ (1998) 3(1) Journal of Armed Conflict Law 27. See also Herman von Hebel and Darryl Robinson, ‘Crimes within the Jurisdiction of the Court’ in Roy S Lee (ed), The International Criminal Court: The Making of the Rome Statute (Kluwer Law International, 1999) 79, 85–7.
[75] Boister, ‘“Transnational Criminal Law”?’ (n 42) 953–4, 968.
[76] Ethan A Nadelmann, ‘Global Prohibition Regimes: The Evolution of Norms in International Society’ (1990) 44(4) International Organization 479.
[77] Ibid 480–6.
[78] See Héctor Olásolo, International Criminal Law, Transnational Criminal Organizations and Transitional Justice (Brill Nijhoff, 2018) ch 6 (‘International Criminal Law’).
[79] Neil Boister, ‘Further Reflections on the Concept of Transnational Criminal Law’ (2015) 6(1) Transnational Legal Theory 9, 10.
[80] Boister, ‘“Transnational Criminal Law”?’ (n 42) 967–74.
[81] Ibid 970.
[82] Héctor Olásolo, ‘Is International Criminal Law an Appropriate Mechanism to Deal with Organised Crime in a Global Society?’ in Harmen van der Wilt and Christophe Paulussen (eds), Legal Responses to Transnational and International Crimes: Towards an Integrative Approach (Edward Elgar Publishing, 2017) 50, 66-7.
[83] Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention against Transnational Organized Crime, opened for signature 15 November 2000, 2237 UNTS 319 (entry into force 25 December 2003).
[84] Nicole Siller, ‘“Modern Slavery”: Does International Law Distinguish between Slavery, Enslavement and Trafficking?’ (2016) 14(2) Journal of International Criminal Justice 405, 407 (emphasis in original).
[85] Harmen van der Wilt, ‘Trafficking in Human Beings, Enslavement, Crimes against Humanity: Unravelling the Concepts’ (2014) 13(2) Chinese Journal of International Law 297, 298 (‘Trafficking in Human Beings’).
[87] Rome Statute (n 1) art 7(1)(c).
[88] Ibid art 7(2)(c).
[89] International Criminal Court, Elements of Crimes (2011) art 7(1)(c) n 11.
[90] Slavery Convention, opened for signature 25 September [1927] LNTSer 19; 1926, 60 LNTS 253 (entered into force 9 March 1927) art 1.
[91] Siller (n 84) 423–4. See van der Wilt, ‘Trafficking in Human Beings’ (n 85) 334.
[92] Ben Saul, ‘Terrorism as a Transnational Crime’ in Neil Boister and Robert J Currie (eds), Routledge Handbook of Transnational Criminal Law (Routledge, 2015) 394, 395.
[93] Sir Arnold K Amet, ‘Terrorism and International Law: Cure the Underlying Problem, Not Just the Symptom’ (2013) 19(1) Annual Survey of International and Comparative Law 17, 29.
[94] Proceedings of the International Conference on the Repression of Terrorism: Geneva, November 1st to 16th, 1937, League of Nations Doc C.94.M.47.1938.V (1938) 56.
[95] Ibid 62.
[96] Ibid 66.
[97] ‘Convention for the Prevention and Punishment of Terrorism’ (1938) 19(1) League of Nations Official Journal 23.
[98] Convention for the Prevention and Punishment of Terrorism (November 1937): Ratification by India, League of Nations Doc C.L.164.1938.V (22 September 1938); Ben Saul, ‘The Legal Response of the League of Nations to Terrorism’ (2006) 4(1) Journal of International Criminal Justice 78, 82.
[99] Harmen van der Wilt and Inez Braber, ‘The Case for Inclusion of Terrorism in the Jurisdiction of the International Criminal Court’ (Research Paper No 2014-13, Amsterdam Center for International Law, University of Amsterdam, 2014).
[100] For a list of the universal treaties on terrorism, see ‘International Legal Instruments’, United Nations Office of Counter-Terrorism (Web Page) <https://www.un.org/counterterrorism/international-legal-instruments>, archived at <https://perma.cc/44TP-S96J>.
[101] Patrick Robinson, ‘The Missing Crimes’ in Antonio Cassese, Paola Gaeta and John RWD Jones (eds), The Rome Statute of the International Criminal Court: A Commentary (Oxford University Press, 2002) vol 1, 497, 517–19.
[103] Patrick Robinson (n 101) 509-10.
[104] Athanasios Chouliaras, ‘Bridging the Gap between Criminological Theory and Penal Theory within the International Criminal Justice System’ (2014) 22(3) European Journal of Crime, Criminal Law and Criminal Justice 249, 268-9 (‘Bridging the Gap’).
[105] Ibid 269.
[107] William A Schabas, Genocide in International Law: The Crime of Crimes (Cambridge University Press, 2nd ed, 2009) 243.
[108] Werle and Jessberger (n 48) 170.
[109] Allison Marston Danner, ‘Constructing a Hierarchy of Crimes in International Criminal Law Sentencing’ (2001) 87(3) Virginia Law Review 415, 484.
[110] Donald K Pigaroff and Darryl Robinson, ‘Article 30: Mental Element’ in Otto Triffterer and Kai Ambos (eds), The Rome Statute of the International Criminal Court: A Commentary (CH Beck, 3rd ed, 2016) 1111, 1119.
[111] Nasour Koursami, The ‘Contextual Elements’ of the Crime of Genocide (Asser Press, 2018) 25.
[112] For a discussion of this subject, see Claus Kreß, ‘The Crime of Genocide and Contextual Elements: A Comment on the ICC Pre-Trial Chamber’s Decision in the Al Bashir Case’ (2009) 7(2) Journal of International Criminal Justice 297; William A Schabas, ‘State Policy as an Element of International Crimes’ (2008) 98(3) Journal of Criminal Law and Criminology 953 (‘State Policy as an Element’).
[113] Rome Statute (n 1) art 8 bis.
[114] Ibid arts 7(1), (2)(a).
[115] Ibid art 8(1).
[116] Mayeul Hiéramente, ‘The Myth of “International Crimes”: Dialectics and International Criminal Law’ (2011) 3(2) Goettingen Journal of International Law 551, 569.
[117] George P Fletcher, The Grammar of Criminal Law: American, Comparative, and International (Oxford University Press, 2007–19) vol 1, 335.
[118] Larry May, Crimes against Humanity: A Normative Account (Cambridge University Press, 2004) 86.
[119] Athanasios Chouliaras, ‘Discourses on International Criminality’ in Alette Smeulers (ed), Collective Violence and International Criminal Justice: An Interdisciplinary Approach (Intersentia, 2010) 65, 78.
[120] See United Nations Office on Drugs and Crime, The Globalization of Crime: A Transnational Organized Crime Threat Assessment (Report, 2010) 27-8.
[121] Ian Taylor, Crime in Context: A Critical Criminology of Market Societies (Polity Press, 1999) 168.
[122] Louise I Shelley, ‘Transnational Organized Crime: An Imminent Threat to the Nation-State?’ (1995) 48(2) Journal of International Affairs 463, 468.
[123] Ilya Gridneff, ‘Blood Gold Flows Illegally from Central African Republic’, Bloomberg (online, 9 March 2015) <https://www.bloomberg.com/news/articles/2015-03-08/blood-gold-exports-pour-illegally-from-central-african-republic>, archived at <https://perma.cc/7BKQ-HCLM>.
[124] See, for example, the Situation in Uganda described in Part III, comprising an ICC investigation the Lord’s Resistance Army insurgency.
[125] Phil Williams, ‘Organizing Transnational Crime: Networks, Markets, and Hierarchies’ in Phil Williams and Dimitri Vlassis (eds), Combating Transnational Crime: Concepts, Activities and Responses (Frank Cass, 2001) 57, 73.
[126] See, eg, Blythe Bowman Proulx, ‘Organized Criminal Involvement in the Illicit Antiquities Trade’ (2011) 14(1) Trends in Organized Crime 1, 23–4.
[127] Andreas Zimmermann, ‘Article 5: Crimes within the Jurisdiction of the Court’ in Otto Triffterer and Kai Ambos (eds), The Rome Statute of the International Criminal Court: A Commentary (CH Beck, 3rd ed, 2016) 111, 113–14.
[129] André Nollkaemper, ‘Introduction’ in Harmen van der Wilt and André Nollkaemper (eds), System Criminality in International Law (Cambridge University Press, 2009) 4. See also May (n 118) 83, 87–90; David Luban, ‘A Theory of Crimes against Humanity’ (2004) 29(1) Yale Journal of International Law 85, 139.
[131] See Chouliaras, ‘Bridging the Gap’ (n 104) 262.
[132] See Luban, ‘State Criminality’ (n 49).
[133] Athanasios Chouliaras, ‘A Strategic Choice: The State Policy Requirement in Core International Crimes’ (2015) 28(4) Leiden Journal of International Law 953, 956.
[134] Richard Vernon, ‘What Is Crime against Humanity?’ (2002) 10(3) Journal of Political Philosophy 231, 242-3.
[135] See, eg, David Kauzlarich and Ronald C Kramer, Crimes of the American Nuclear State: At Home and Abroad (Northeastern University Press, 1998) 156-7.
[136] Luban, ‘State Criminality’ (n 49) 80.
[137] Werle and Jessberger (n 48) 32.
[139] Neil Boister, ‘Responding to Transnational Crime: The Distinguishing Features of Transnational Criminal Law’ in Harmen van der Wilt and Christophe Paulussen (eds), Legal Responses to Transnational and International Crimes: Towards an Integrative Approach (Edward Elgar Publishing, 2017) 27, 34.
[140] Ibid 37.
[141] United Nations Convention against Transnational Organized Crime, opened for signature 15 November 2000, 2225 UNTS 209 (entered into force 29 September 2003) art 2.
[142] See, eg, Olásolo, International Criminal Law (n 78) 80.
[143] Martin Bouchard and Carlo Morselli, ‘Opportunistic Structures of Organized Crime’ in Letizia Paoli (ed), The Oxford Handbook of Organized Crime (Oxford University Press, 2014) 288, 297.
[144] Susanne Karstedt, ‘Organizing Crime: The State as Agent’ in Letizia Paoli (ed), The Oxford Handbook of Organized Crime (Oxford University Press, 2014) 303, 309 (emphasis in original); Peter Gabrosky, ‘Organized Cybercrime and National Security’ in Information Society and Cybercrime: Challenges for Criminology and Criminal Justice (Research Report No 13-B-01, Korean Institute of Criminology and International Society for Criminology, 2013) 19, 24.
[146] Ibid.
[147] ‘Wikileaks: Nicaragua’s Ortega “Financed by Drugs Money”’, BBC News (online, 7 December 2010) <https://www.bbc.com/news/world-latin-america-11934372>, archived at <https://perma.cc/KXC3-L4U3>.
[148] Husain Haqqani, ‘Afghanistan’s Taliban Is in It to Win It’, Foreign Policy (online, 5 December 2018) <https://foreignpolicy.com/2018/12/05/afghanistans-taliban-is-in-it-to-win-it/>, archived at <https://perma.cc/V4NL-425D>.
[149] Rome Statute (n 1) art 8 bis 1.
[150] See Frédéric Mégret, ‘The Subjects of International Criminal Law’ in Philipp Kastner (ed), International Criminal Law in Context (Routledge, 2018) 28, 39–40.
[151] Judge Silvia Fernández de Gurmendi, ‘Complementarities and Convergences between International Criminal Justice and Human Rights Law’ (Speech, European Court of Human Rights, 27 January 2017) 3 <https://www.icc-cpi.int/Pages/item.aspx?name=170127_pres_stat_ECHRCeremony>, archived at <https://perma.cc/Q6DN-KAXF>.
[152] This definition is repeated as a required element for the crime of genocide: Elements of Crimes (n 89) arts 6(a)-(e).
[153] Rome Statute (n 1) art 8(1); ibid art 8.
[154] Rome Statute (n 1) art 7(1).
[155] Ibid art 7(2)(a).
[156] For example, William A Schabas argues that ‘it is when perpetrators commit heinous acts precisely because they are acting on behalf of a State, and in pursuit of its policies that we require international justice to step in’: Schabas, ‘State Policy as an Element’ (n 112) 982.
[157] Tilman Rodenhäuser, ‘Beyond State Crimes: Non-state Entities and Crimes against Humanity’ (2014) 27(4) Leiden Journal of International Law 913; M de Guzman, ‘Crimes against Humanity’ in WA Schabas and N Bernaz (eds), Routledge Handbook of International Criminal Law (Routledge, 2011) 131.
[158] Situation in the Republic of Kenya (Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Kenya) (International Criminal Court, Pre-Trial Chamber II, Case No ICC-01/09, 31 March 2010) [90]–[93] (‘Kenya (Authorization Decision)’).
[159] Prosecutor v Katanga (Judgment Pursuant to Article 74 of the Statute) (International Criminal Court, Trial Chamber II, Case No ICC-01/04-01/07, 7 March 2014) [1119] (‘Katanga (Judgment)’).
[160] For criticism on Kenya (Authorization Decision), see Claus Kress, ‘On the Outer Limits of Crimes against Humanity: The Concept of Organization within the Policy Requirement’ (2010) 23(4) Leiden Journal of International Law 855. For criticism on the Katanga decision, see Rodenhäuser (n 157).
[162] Ibid.
[163] Ibid 23.
[164] Harmen van der Wilt, ‘Expanding Criminal Responsibility in Transnational and International Organised Crime’ (2016) 4(1) Groningen Journal of International Law 1, 2 (‘Expanding Criminal Responsibility’).
[165] See Frédéric Mégret, ‘Is the ICC Focusing Too Much on Non-State Actors?’ in Margaret M deGuzman and Diane Marie Amann (eds), Arcs of Global Justice: Essays in Honour of William A Schabas (Oxford University Press, 2018) 173, 200 (emphasis omitted).
[167] Elies van Sliedregt, Individual Criminal Responsibility in International Law (Oxford University Press, 2012) 21.
[168] Jennifer M Smith, ‘An International Hit Job: Prosecuting Organized Crime Acts as Crimes against Humanity’ (2009) 97(4) Georgetown Law Journal 1111, 1142; Maurice Punch, ‘Why Corporations Kill and Get Away with It: The Failure of Law to Cope with Crime in Organizations’ in André Nollkaemper and Harmen van der Wilt (eds), System Criminality in International Law (Cambridge University Press, 2009) 42, 50.
[169] See Luban, ‘State Criminality’ (n 49).
[170] See below Part III for examples.
[171] Peter Andreas, ‘Illicit Globalization: Myths, Misconceptions, and Historical Lessons’ (2011) 126(3) Political Science Quarterly 403, 416.
[172] Harmen van der Wilt, ‘Legal Responses to Transnational and International Crimes: Towards an Integrative Approach?’ in Harmen van der Wilt and Christophe Paulussen (eds), Legal Responses to Transnational and International Crimes: Towards an Integrative Approach (Edward Elgar Publishing, 2017) 3, 13-14 (‘Legal Responses to Transnational and International Crimes’).
[173] See generally Peter A Corning, ‘“The Synergism Hypothesis”: On the Concept of Synergy and Its Role in the Evolution of Complex Systems’ (1998) 21(2) Journal of Social and Evolutionary Systems 133.
[174] United States v Araki (Judgment) (International Military Tribunal for the Far East, 4 November 1948) in R John Pritchard and Sonia M Zaide (eds), The Tokyo War Crimes Trial (Garland Publishing, 1981) vol 22, 40275, 49159–65.
[175] Mark Galeotti, ‘Transnational Organized Crime: Law Enforcement as a Global Battlespace’ (2002) 13(2) Small Wars and Insurgencies 29, 35–6.
[176] For an example of this mutual reinforcement, see SC Res 1653, UN SCOR, 5359th mtg, UN Doc S/RES/1653 (27 January 2006) Preamble paras 6–7.
[177] Office of the Prosecutor, International Criminal Court, Strategic Plan 2016–2018 (Report, 16 November 2015) 14 [30] (‘OTP Strategic Plan 2016–2018’).
[178] Ibid 32 [101].
[179] Ibid 32 [100].
[180] van der Wilt, ‘Legal Responses to Transnational and International Crimes’ (n 172) 14.
[181] See generally Leigh Rome, ‘The Case for Prosecuting Arms Traffickers in the International Criminal Court’ (2015) 36(3) Cardozo Law Review 1149.
[182] See, for example, Sudanese president Omar Al Bashir’s money laundering proceedings in foreign accounts: Marlise Simons, ‘Prosecutor Confirms Accusation against Sudan Leader’, The New York Times (online, 1 January 2011) <https://www.nytimes.com/2011/01/02/world/africa/02wikisudan.html>, archived at <https://perma.cc/EE8N-UYJG>.
[183] Joshua Marks, ‘Border in Name Only: Arms Trafficking and Armed Groups at the DRC–Sudan Border’ (Working Paper No 4, Human Security Baseline Assessment, May 2007) 11.
[184] Ibid 18.
[185] Letter Dated 29 November 2011 from the Chair of the Security Council Committee Established Pursuant to Resolution 1533 (2004) concerning the Democratic Republic of the Congo Addressed to the President of the Security Council, UN Doc S/2011/738 (2 December 2011) 3, 6; Amnesty International, ‘If You Resist, We’ll Shoot You’: The Democratic Republic of the Congo and the Case for an Effective Arms Trade Treaty (Report, June 2012) 16–17.
[186] International Criminal Court, ‘Prosecutor Receives Referral of the Situation in the Democratic Republic of Congo’ (Press Release ICC-OTP-20040419-50, 19 April 2004) <https://www.icc-cpi.int/Pages/item.aspx?name=prosecutor+receives+referral+of+the+situation+in+the+democratic+republic+of+congo>, archived at <https://perma.cc/MG55-WP9V>.
[187] International Criminal Court, ‘The Office of the Prosecutor of the International Criminal Court Opens Its First Investigation’ (Press Release ICC-OTP-20040623-59, 23 June 2004) <https://www.icc-cpi.int/pages/item.aspx?name=the+office+of+the+prosecutor+of+the+international+criminal+court+opens+its+first+investigation>, archived at <https://perma.cc/A8KJ-DDTZ>; ‘Democratic Republic of the Congo: Situation in the Democratic Republic of the Congo ICC-01/04’, International Criminal Court (Web Page) <https://www.icc-cpi.int/drc>, archived at <https://perma.cc/JG2G-FDQ7>.
[188] See Prosecutor v Lubanga (Decision on the Confirmation of Charges) (International Criminal Court, Pre-Trial Chamber I, Case No ICC-01/04-01/06, 29 January 2007) (‘Lubanga (Decision on the Confirmation of Charges)’); Prosecutor v Katanga (Decision on the Confirmation of Charges) (International Criminal Court, Pre-Trial Chamber I, Case No ICC-01/04-01/07-717, 30 September 2008) (‘Katanga (Decision on the Confirmation of Charges)’); Prosecutor v Ntaganda (Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor) (International Criminal Court, Pre-Trial Chamber II, Case No ICC-01/04-02/06, 9 June 2014) (‘Ntaganda (Decision Pursuant to Article 61(7)(a) and (b))’).
[189] Lubanga (Decision on the Confirmation of Charges) (n 188) [292].
[190] Prosecutor v Lubanga (Judgment Pursuant to Article 74 of the Statute) (International Criminal Court, Trial Chamber I, Case No ICC-01/04-01/06, 14 March 2012) [1129], [1155].
[191] Ibid [1262].
[192] Office of the Prosecutor, International Criminal Court, ‘Communications Received by the Office of the Prosecutor of the ICC’ (Press Release pids.009.2003-EN, 16 July 2003) 3 (‘Communications Received by the OTP’) <https://www.icc-cpi.int/NR/rdonlyres/B080A3DD-7C69-4BC9-AE25-0D2C271A9A63/277502/16_july__english.pdf>, archived at <https://perma.cc/35SL-SNJV>.
[193] Sara Kendall and Clare da Silva, ‘Beyond the ICC: State Responsibility for the Arms Trade in Africa’ in Kamari M Clarke, Abel S Knottnerus and Eefje de Volder (eds), Africa and the ICC: Perceptions of Justice (Cambridge University Press, 2016) 407, 410-11.
[194] Katanga (Decision on the Confirmation of Charges) (n 188) [573]–[582].
[195] Katanga (Judgment) (n 159) [744].
[196] Ibid [641]–[651].
[197] Ibid [1676].
[198] Ibid [1677].
[199] Prosecutor v Ntaganda (Decision on the Prosecutor’s Application under Article 58) (International Criminal Court, Pre-Trial Chamber II, Case No ICC-01/04-02/06, 13 July 2012) [64].
[200] Ibid [72].
[201] Prosecutor v Ntaganda (Decision Pursuant to Article 61(7)(a) and (b)) (n 188) [110].
[202] Ibid [120].
[203] Ibid [108]-[110].
[204] Prosecutor v Ntaganda (Judgment) (International Criminal Court, Trial Chamber VI, Case No ICC-01/04-02/06, 8 July 2019) 535-8.
[205] Ibid [825]–[857].
[206] Rome Statute (n 1) art 25(3)(d).
[207] Prosecutor v Mbarushimana (Decision on the Confirmation of Charges) (International Criminal Court, Pre-Trial Chamber I, Case No ICC-01/04-01/10, 16 December 2011) [288] n 681 (‘Mbarushimana (Decision on the Confirmation of Charges)’).
[208] Prosecutor v Harun (Decision on the Prosecution Application under Article 58(7) of the Statute) (International Criminal Court, Pre-Trial Chamber I, Case No ICC-02/05-01/07, 27 April 2007) [85]–[89] (‘Harun (Decision)’).
[209] Catherine E Drummond and Anthony E Cassimatis, ‘Weapons Smuggling’ in Neil Boister and Robert J Currie (eds), Routledge Handbook of Transnational Criminal Law (Routledge, 2015) 247, 256–60.
[210] Prosecutor v Taylor (Judgement) (Special Court for Sierra Leone, Trial Chamber II, Case No SCSL-03-01-T, 18 May 2012) [4624]–[5842], [6908], [6912] (‘Taylor’).
[211] SC Res 2117, UN SCOR, 7036th mtg, UN Doc S/RES/2117 (26 September 2013).
[212] See, eg, Dirk van Leeuwen, ‘Prosecuting Money Laundering at the ICC: Can It Stop the Funding of International Criminal Organisations?’ in Harmen van der Wilt and Christophe Paulussen (eds), Legal Responses to Transnational and International Crimes: Towards an Integrative Approach (Edward Elgar Publishing, 2017) 181, 185–6.
[213] ‘Communications Received by the OTP’ (n 192) 4.
[214] For an overall description, see ‘Darfur, Sudan: Situation in Darfur, Sudan’, International Criminal Court (Web Page) <https://www.icc-cpi.int/darfur>, archived at <https://perma.cc/QT82-U3BT>.
[215] Prosecutor v Al Bashir (Warrant of Arrest) (International Criminal Court, Pre-Trial Chamber I, Case No ICC-02/05-01/09, 4 March 2009) 7–8.
[216] Prosecutor v Al Bashir (Second Warrant of Arrest) (International Criminal Court, Pre-Trial Chamber I, Case No ICC-02/05-01/09, 12 July 2010) 8.
[217] On the arms embargo and freezing of assets measures, see SC Res 1591, UN SCOR, 5153rd mtg, UN Doc S/RES/1591 (29 March 2005) paras 3(a)(v), (e), 7.
[218] See Al Bashir (Warrant) (n 215); Al Bashir (Second Warrant) (n 216).
[219] Afua Hirsch, ‘WikiLeaks Cables: Sudanese President “Stashed $9bn in UK Banks”’, The Guardian (online, 18 December 2010) <https://www.theguardian.com/world/2010/dec/17/wikileaks-sudanese-president-cash-london>, archived at <https://perma.cc/JRQ5-2QL3>.
[221] See ibid.
[222] Ibid.
[223] Plea Agreement, Attachment No 2, [41], United States v BNP Paribas SA (2nd Cir, 30 April 2015).
[224] Ibid [1], [40]–[41].
[225] Ibid [20].
[226] Office of Public Affairs, United States Department of Justice, ‘BNP Paribas Agrees to Plead Guilty and to Pay $8.9 Billion for Illegally Processing Financial Transactions for Countries Subject to US Economic Sanctions’ (Press Release 14-686, 30 June 2014) <https://www.justice.gov/opa/pr/bnp-paribas-agrees-plead-guilty-and-pay-89-billion-illegally-processing-financial>, archived at <https://perma.cc/W54X-TXU5>. See generally Jennifer K Elsea, ‘Justice for United States Victims of State Sponsored Terrorism Act: Eligibility and Funding’ (Report No IF10341, Congressional Research Service, United States Congress, 19 December 2019) 2.
[227] See International Criminal Court, Financial Investigations and Recovery of Assets (Report, November 2017) 3.
[228] International Criminal Court, Report on Cooperation Challenges Faced by the Court with Respect to Financial Investigation (Report, 27 October 2015) <https://www.icc-cpi.int/Pages/item.aspx?name=161027-ICC-rep>, archived at <https://perma.cc/PRQ5-T7CL>.
[229] van der Wilt, ‘Legal Responses to Transnational and International Crimes’ (n 172) 14.
[230] See Louise I Shelley, Dirty Entanglements: Corruption, Crime, and Terrorism (Cambridge University Press, 2014) 5, 218.
[231] Letter Dated 12 April 2001 from the Secretary-General to the President of the Security Council, UN Doc S/2001/357 (12 April 2001) annex (‘Report of the Panel of Experts on the Illegal Exploitation of Natural Resources and Other Forms of Wealth of the Democratic Republic of the Congo’). See also Daniëlla Dam de Jong and James G Stewart, ‘Illicit Exploitation of Natural Resources’ in Charles C Jalloh, Kamari M Clarke and Vincent O Nmehielle (eds), The African Court of Justice and Human and Peoples’ Rights in Context: Development and Challenges (Cambridge University Press, 2019) 590, 604.
[232] Jorge Orlando Melo, ‘The Drug Trade, Politics and the Economy: The Colombian Experience’ in Elizabeth Joyce and Carlos Malamud (eds), Latin America and the Multinational Drug Trade (Palgrave Macmillan, 1998) 63.
[233] Matthew Bogdanos and William Patrick, Thieves of Baghdad: One Marine’s Passion for Ancient Civilizations and the Journey to Recover the World’s Greatest Stolen Treasures (Bloomsbury, 2005) 249; Peter B Campbell, ‘The Illicit Antiquities Trade as a Transnational Criminal Network: Characterizing and Anticipating Trafficking of Cultural Heritage’ (2013) 20(2) International Journal of Cultural Property 113.
[234] Committee on Legal Affairs and Human Rights, Parliamentary Assembly of the Council of Europe, Inhuman Treatment of People and Illicit Trafficking in Human Organs in Kosovo (Report No 12462, 7 January 2011).
[235] See generally Campbell (n 233).
[236] For the motivation of the LRA, see Anthony Vinci, ‘Existential Motivations in the Lord’s Resistance Army’s Continuing Conflict’ (2007) 30(4) Studies in Conflict and Terrorism 337.
[237] Bryan Christy, ‘How Killing Elephants Finances Terror in Africa’, National Geographic (online, 12 August 2015) <https://www.nationalgeographic.com/tracking-ivory/article.html>, archived at <https://perma.cc/53NQ-ZVYC>.
[238] The Comprehensive Peace Agreement between the Government of the Republic of the Sudan and the Sudan People’s Liberation Movement/Sudan People’s Liberation Army, signed 9 January 2005 <https://peacemaker.un.org/node/1369>, archived at <https://perma.cc/7LHC-B8EA>.
[239] ‘Garamba’, African Parks (Web Page) <https://www.africanparks.org/the-parks/garamba>, archived at <https://perma.cc/7BF6-FRQ8>.
[240] Aislinn Laing, ‘LRA Warlord Joseph Kony Uses Ivory Trade to Buy Arms’, The Telegraph (online, 12 January 2016) <https://www.telegraph.co.uk/news/worldnews/joseph-kony/12066467/LRA-warlord-Joseph-Kony-uses-ivory-trade-to-buy-arms.html>, archived at <https://perma.cc/HW5Z-XTM5>.
[241] Ledio Cakaj, Tusk Wars: Inside the LRA and the Bloody Business of Ivory (Report, October 2015) 2.
[244] Statement by the President of the Security Council, 7066th mtg, UN Doc S/PRST/2013/18 (25 November 2013) 3.
[245] SC Res 2136, UN SCOR, 7107th mtg, UN Doc S/RES/2136 (30 January 2014) Preamble para 10 (‘Resolution 2136’).
[246] See Prosecutor v Ongwen (Decision on the Confirmation of Charges) (International Criminal Court, Pre-Trial Chamber II, Case No ICC-02/04-01/15, 23 March 2016).
[247] See, eg, Chouliaras (n 104) 269–70.
[248] Office of the Prosecutor, International Criminal Court, Policy Paper on Case Selection and Prioritisation (Policy Paper, 15 September 2016) 14 [41].
[249] Ibid 4–5 [7].
[250] Office of the Prosecutor, International Criminal Court, Report on Preliminary Examination Activities 2018 (Report, 5 December 2018) 35 [128].
[251] See ibid 35–44 [125]–[165].
[252] Office of the Prosecutor, International Criminal Court, Situation in Colombia (Interim Report, November 2012) 2 [2].
[253] Letter Dated 29 March 2017 from the Secretary-General Addressed to the President of the Security Council, UN Doc S/2017/272 (21 April 2017) annex II (‘Final Agreement for Ending the Conflict and Building a Stable and Lasting Peace’).
[254] Julia Zulver, Annette Idler and Juan Masullo, ‘Will 2019 See a Peace Process for the ELN Rebels in Colombia?’, openDemocracy (online, 7 January 2019) <https://www.opendemocracy.net/en/democraciaabierta/will-2019-see-peace-process-for-eln-rebels-in-colombia/>, archived at <https://perma.cc/D775-GG6G>.
[255] Report on Preliminary Examination Activities 2018 (n 250) 35 [129].
[256] Final Agreement for Ending the Conflict and Building a Stable and Lasting Peace, UN Doc S/2017/272 (n 253) 85–107.
[257] See, eg, Situation in Colombia (n 252); Office of the Prosecutor, International Criminal Court, Report on Preliminary Examination Activities 2019 (Report, 5 December 2019) 24–36 [84]–[133].
[259] Jacobo Arenas, Cese el fuego: Una historia política de las FARC [Stop the Fire: A Political History of the FARC] (Editorial La Oveja Negra, 1985) 81–4.
[260] Susan Virginia Norman, ‘Narcotization as Security Dilemma: The FARC and Drug Trade in Colombia’ (2018) 41(8) Studies in Conflict and Terrorism 638, 642.
[261] Alex McDougall, ‘State Power and Its Implications for Civil War Colombia’ (2009) 32(4) Studies in Conflict and Terrorism 322, 335–8.
[262] See Alain Labrousse, ‘The FARC and the Taliban’s Connection to Drugs’ (2005) 35(1) Journal of Drug Issues 169, 172-9.
[263] See Nazih Richani, ‘Caudillos and the Crisis of the Colombian State: Fragmented Sovereignty, the War System and the Privatisation of Counterinsurgency in Colombia’ (2007) 28(2) Third World Quarterly 403.
[265] Bilal Y Saab and Alexandra W Taylor, ‘Criminality and Armed Groups: A Comparative Study of FARC and Paramilitary Groups in Colombia’ (2009) 32(6) Studies in Conflict and Terrorism 455, 465.
[266] Ángela Olaya, ‘Arrest of Major FARC Dissident Casts Doubt on Colombia Peace Accords’, InSight Crime (online, 6 July 2018) <https://www.insightcrime.org/news/analysis/arrest-major-farc-dissident-casts-doubt-colombia-peace-accords/>, archived at <https://perma.cc/Q243-BWSN>.
[267] On this involvement, see Marina Aksenova, ‘The ICC Involvement in Colombia: Walking the Fine Line between Peace and Justice’ in Morten Bergsmo and Carsten Stahn (eds), Quality Control in Preliminary Examination (Torkel Opsahl Academic EPublisher, 2018) vol 1, 257.
[268] Report on Preliminary Examination Activities 2018 (n 250) 41 [151]–[152].
[269] See Heather L Kiefer, ‘Just Say No: The Case against Expanding the International Criminal Court’s Jurisdiction to Include Drug Trafficking’ (2009) 31(2) Loyola of Los Angeles International and Comparative Law Review 157, 162-6.
[270] René Urueña, ‘Prosecutorial Politics: The ICC’s Influence in Colombian Peace Processes, 2003–2017’ (2017) 111(1) American Journal of International Law 104, 115.
[271] Alejandro Chehtman, The Impact of the ICC in Colombia: Positive Complementarity on Trial (DOMAC Report No 17, October 2011) 30.
[272] Office of the Prosecutor, International Criminal Court, Strategic Plan 2016–2018 (Draft Report, 6 July 2015) 14 [30], 31 [94] <https://www.icc-cpi.int/Pages/item.aspx?name=otp-rep-150708>, archived at <https://perma.cc/8RPU-AGN2> (‘Draft OTP Strategic Plan 2016–2018’). This draft was shared with external partners during a consultation period before the final version was adopted in November: Office of the Prosecutor, International Criminal Court, ‘ICC Prosecutor Fatou Bensouda Issues OTP Strategic Plan (2016-2018)’ (Press Release ICC-OTP-20151116-PR1175, 16 November 2015) <https://www.icc-cpi.int/Pages/item.aspx?name=pr1175&ln=en>, archived at <https://perma.cc/FFJ5-7AYQ>.
[273] Draft OTP Strategic Plan 2016–2018 (n 272) 14 [30].
[274] OTP Strategic Plan 2016–2018 (n 177) 14 [30].
[275] Ibid 32–5 [100]-[106].
[276] Office of the Prosecutor, International Criminal Court, Strategic Plan 2019–2021 (Report, 17 July 2019) 28–31 [48]–[56].
[277] For an exploration of the obstacles, see generally Schwöbel-Patel (n 10).
[278] OTP Strategic Plan 2016–2018 (n 177) 32 [100].
[279] See Charles Chernor Jalloh, ‘The Nature of the Crimes in the African Criminal Court’ (2017) 15(4) Journal of International Criminal Justice 799.
[280] Phil Clark, Distant Justice: The Impact of the International Criminal Court on African Politics (Cambridge University Press, 2018) 66–8.
[281] Office of the Prosecutor, International Criminal Court, Report on Prosecutorial Strategy (Report, 14 September 2006) 4-5 [2].
[282] Christian M de Vos, ‘Investigating from Afar: The ICC’s Evidence Problem’ (2013) 26(4) Leiden Journal of International Law 1009, 1017.
[283] Office of the Prosecutor, International Criminal Court, Prosecutorial Strategy 2009–2012 (Report, 1 February 2010) 5–6 [18]–[20].
[284] Katy Glassborow, ‘ICC Investigative Strategy under Fire’, Institute for War & Peace Reporting (online, 27 October 2008) <https://iwpr.net/global-voices/icc-investigative-strategy-under-fire>, archived at <https://perma.cc/Y9TX-CTVK>.
[285] Anja Papenfuß, ‘»Wir sollten den IStGH unter allen Umständen vor Politisierung bewahren«’ (2014) 62(1) Vereinte Nationen 16, 18 [Anja Papenfuss, ‘“We Should at All Costs Prevent the ICC from Being Politicized”’, Deutsche Gesellschaft für die Vereinten Nationen eV (Interview) 3–4 <https://dgvn.de/fileadmin/user_upload/DOKUMENTE/English_Documents/Interview_Fatou_Bensouda.pdf>, archived at <https://perma.cc/U6C6-7D6R>].
[286] Papenfuss (n 285) 3; Office of the Prosecutor, International Criminal Court, Strategic Plan June 2012–2015 (Report, 11 October 2013) 14 [23].
[287] OTP Strategic Plan 2016–2018 (n 177) 15–16 [35].
[288] Ibid 16 [36].
[289] Assembly of States Parties, International Criminal Court, Report of the Bureau on Cooperation, 8th sess, Doc No ICC-ASP/8/44 (15 November 2009) 12 [47]–[48], 13 [52].
[290] Reinhold Gallmetzer, ‘Prosecuting Persons Doing Business with Armed Groups in Conflict Areas: The Strategy of the Office of the Prosecutor of the International Criminal Court’ (2010) 8(3) Journal of International Criminal Justice 947, 952-3.
[291] Ibid 953.
[292] Office of the Prosecutor, International Criminal Court, Second Report of the Prosecutor of the International Criminal Court to the UN Security Council Pursuant to UNSCR 1970 (2011) (Report, 2 November 2011) 10 [59].
[293] Office of the Prosecutor, International Criminal Court, Fourteenth Report of the Prosecutor of the International Criminal Court to the United Nations Security Council Pursuant to UNSCR 1970 (2011) (Report, 8 November 2017) 6 [34].
[294] Office of the Prosecutor, International Criminal Court, ‘Statement of ICC Prosecutor to the UNSC on the Situation in Libya’ (Speech, United Nations Security Council, 8 May 2017) [27] <https://www.icc-cpi.int/Pages/item.aspx?name=170509-otp-stat-lib>, archived at <https://perma.cc/VXM6-4G68>.
[295] Office of the Prosecutor, International Criminal Court, Sixteenth Report of the Prosecutor of the International Criminal Court to the United Nations Security Council Pursuant to UNSCR 1970 (2011) (Report, 2 November 2018) 6 [34].
[296] Office of the Prosecutor, International Criminal Court, Fifteenth Report of the Prosecutor of the International Criminal Court to the United Nations Security Council Pursuant to UNSCR 1970 (2011) (Report, 9 May 2018) 6 [34].
[297] Rome Statute (n 1) art 93(10).
[298] Federica Gioia, ‘Complementarity and “Reverse Cooperation”’ in Carsten Stahn and Mohamed M El Zeidy (eds), The International Criminal Court and Complementarity: From Theory to Practice (Cambridge University Press, 2011) 807, 808.
[299] Rome Statute (n 1) art 93(10)(b).
[300] Ibid art 93(10)(c).
[301] Ibid art 93(10)(a); Situation in the Republic of Kenya (Decision on the Request for Assistance Submitted on Behalf of the Government of the Republic of Kenya Pursuant to Article 93(10) of the Statute and Rule 194 of the Rules of Procedure and Evidence) (International Criminal Court, Pre-Trial Chamber II, Case No ICC-01/09, 29 June 2011) [29] (‘Situation in the Republic of Kenya (Decision on the Request for Assistance)’).
[303] Ibid 821.
[304] Situation in the Republic of Kenya (Decision on the Request for Assistance) (n 301) [33].
[305] Ibid.
[306] Ibid [34].
[307] See, eg, Ambos, Treatise on International Criminal Law (n 58) vol 3, 626–33.
[308] On the subject of mutual legal assistance tools, see Victoria Ailes, ‘Mutual Legal Assistance and Other European Council Framework Decisions’ in John RWD Jones and Rosemary Davidson (eds), Extradition and Mutual Legal Assistance Handbook (Oxford University Press, 2nd ed, 2010) 147.
[309] Christian M de Vos, ‘All Roads Lead to Rome: Implementation and Domestic Politics in Kenya and Uganda’ in Christian de Vos, Sara Kendall and Carsten Stahn (eds), Contested Justice: The Politics and Practice of International Criminal Court Interventions (Cambridge University Press, 2015) 379, 384.
[310] United Nations Convention against Transnational Organized Crime (n 141) art 18(4).
[311] Council Act of 29 May 2000 Establishing in Accordance with Article 34 of the Treaty on European Union the Convention on Mutual Assistance in Criminal Matters between the Member States of the European Union [2000] OJ C 197/1, annex (‘Convention Established by the Council in Accordance with Article 34 of the Treaty on European Union, on Mutual Assistance in Criminal Matters between the Member States of the European Union’) art 7 (‘Convention on Mutual Assistance in Criminal Matters between the Member States of the European Union’).
[312] Harmen van der Wilt, ‘Extradition and Mutual Legal Assistance in the Draft Convention on Crimes against Humanity’ (2018) 16(4) Journal of International Criminal Justice 795, 807.
[313] International Law Commission, Crimes against Humanity: Texts and Titles of the Draft Preamble, the Draft Articles and the Draft Annex Provisionally Adopted by the Drafting Committee on First Reading, 69th sess, UN Doc A/CN.4/L.892 (26 May 2017) 10 (art 14(6)) (‘Draft Convention on Crimes against Humanity’).
[314] Ibid 1.
[315] Ibid 10 (art 14(6)).
[316] Rome Statute (n 1) arts 54(3)(c)–(d).
[317] Memorandum of Understanding between the International Criminal Court and the Commonwealth on Cooperation, signed 13 July 2011 <https://www.icc-cpi.int/Pages/item.aspx?name=icc-cwc>, archived at <https://perma.cc/59GY-FVUT>.
[318] Agreement between the International Criminal Court and the European Union on Cooperation and Assistance, signed 10 April 2006 <https://www.icc-cpi.int/NR/rdonlyres/6EB80CC1-D717-4284-9B5C-03CA028E155B/140157/ICCPRES010106_English.pdf>, archived at <https://perma.cc/35SL-SNJV>.
[319] See, eg, ibid arts 4, 7; Co-operation Agreement between the Office of the Prosecutor of the International Criminal Court and the International Criminal Police Organization-INTERPOL, signed 22 December 2004, art 2 <https://www.interpol.int/en/content/download/11060/file/4-%20ICC.pdf?inLanguage=eng-GB>, archived at <https://perma.cc/VS8G-DQQ8> (‘Co-operation Agreement between the OTP and INTERPOL’).
[320] Co-operation Agreement between the OTP and INTERPOL (n 319) art 3(2).
[321] Constitution of the International Criminal Police Organization-INTERPOL art 2(1) <https://www.interpol.int/en/content/download/590/file/Constitution%20of%20the%20ICPO-INTERPOL-EN.pdf?inLanguage=eng-GB>, archived at <https://perma.cc/7CAF-MCTC>.
[322] Rome Statute (n 1) art 93(10).
[323] van der Wilt, ‘Expanding Criminal Responsibility’ (n 164) 2.
[324] See above Part III(A).
[325] Rome Statute (n 1) art 25(3)(a); Ambos, Treatise on International Criminal Law (n 58) vol 1, 145.
[326] See Marina Aksenova, ‘The Modes of Liability at the ICC: The Labels That Don’t Always Stick’ (2015) 15(4) International Criminal Law Review 629.
[327] Rome Statute (n 1) art 7(2)(c). See also Elements of Crimes (n 89) art 7(1)(c) n 11.
[328] Rome Statute (n 1) arts 7(1)(f), (2)(e).
[329] For examples of occurrences of the illegal exploitation of natural resources, see Tim Boekhout van Solinge, ‘The Illegal Exploitation of Natural Resources’ in Letizia Paoli (ed), The Oxford Handbook of Organized Crime (Oxford University Press, 2014) 500.
[330] Rome Statute (n 1) arts 8(2)(b)(xvi), (e)(v).
[331] For an analysis of such a crime, see Daniёlla Dam-de Jong, ‘International Law and Resource Plunder: The Protection of Natural Resources during Armed Conflict’ (2008) 19(1) Yearbook of International Environmental Law 27, 45–8.
[332] Rome Statute (n 1) art 25(3)(b); Ambos, Treatise on International Criminal Law (n 58) vol 1, 163.
[333] See Sarah Finnin, Elements of Accessorial Modes of Liability: Article 25(3)(b) and (c) of the Rome Statute of the International Criminal Court (Martinus Nijhoff Publishers, 2012) 45.
[334] Harun (Decision) (n 208) [57], [90].
[335] Ambos, Treatise on International Criminal Law (n 58) vol 1, 164.
[337] See James G Stewart, ‘Overdetermined Atrocities’ (2012) 10(5) Journal of International Criminal Justice 1189, 1207.
[338] Rome Statute (n 1) art 25(3)(c).
[339] Pre-Trial Chamber I analysed this difference in Mbarushimana (Decision on the Confirmation of Charges) (n 207) [281].
[340] Rome Statute (n 1) art 25(3)(c), cited in Prosecutor v Bemba (Judgment on the Appeals against the Decision of Trial Chamber VII Entitled ‘Judgment Pursuant to Article 74 of the Statute’) (International Criminal Court, Appeals Chamber, Case No ICC-01/05-01/13 A A2 A3 A4 A5, 8 March 2018) [1327].
[341] Rome Statute (n 1) art 25(3)(c). For an account of the discussion of the mens rea of aiding, abetting or assisting, see Manuel J Ventura, ‘Aiding and Abetting’ in Jérôme de Hemptinne et al (eds), Modes of Liability in International Criminal Law (Cambridge University Press, 2019) 173, 177–8, 189–90, 213–28.
[342] Rome Statute (n 1) art 30.
[343] Prosecutor v Bemba (Judgment Pursuant to Article 74 of the Statute) (International Criminal Court, Trial Chamber VII, Case No ICC-01/05-01/13, 19 October 2016) [98].
[344] Drummond and Cassimatis (n 209) 257–8.
[345] Rome Statute (n 1) art 25(3)(d).
[346] Mbarushimana (Decision on the Confirmation of Charges) (n 207) [276].
[347] Ibid [283]–[284].
[348] Ibid [277].
[349] Jens David Ohlin, ‘Three Conceptual Problems with the Doctrine of Joint Criminal Enterprise’ (2007) 5(1) Journal of International Criminal Justice 69, 79.
[350] An example of this is the Sierra Leonian Revolutionary United Front commanders allegedly injecting drugs and giving cocaine to child soldiers: see ‘Coercion and Intimidation of Child Soldiers to Participate in Violence’, Human Rights Watch (News Post, 16 April 2008) <https://www.hrw.org/news/2008/04/16/coercion-and-intimidation-child-soldiers-participate-violence>, archived at <https://perma.cc/72PS-AV4E>.
[351] Neil Boister, ‘The Concept and Nature of Transnational Criminal Law’ in Neil Boister and Robert J Currie (eds), Routledge Handbook of Transnational Criminal Law (Routledge, 2015) 11, 12–13.
[352] Mbarushimana (Decision on the Confirmation of Charges) (n 207) [270]–[271], citing Rome Statute (n 1) art 25(3)(d).
[353] Mbarushimana (Decision on the Confirmation of Charges) (n 207) [271].
[354] Rome Statute (n 1) art 25(3)(d).
[355] Mbarushimana (Decision on the Confirmation of Charges) (n 207) [288].
[356] Ibid [289].
[357] Ibid [288] n 681.
[358] See above Part II(B). See also Williams (n 125) 73.
[359] Rome Statute (n 1) art 22.
[360] Ibid arts 5–9.
[361] Bruce Broomhall, ‘Article 22: Nullum Crimen sine Lege’ in Otto Triffterer and Kai Ambos (eds), The Rome Statute of the International Criminal Court: A Commentary (CH Beck, 3rd ed, 2016) 949, 952–3.
[362] Rome Statute (n 1) art 22(1); ibid 953.
[363] Rome Statute (n 1) art 20.
[364] International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976) art 14(7).
[365] ‘Sixteenth International Congress of Penal Law (Budapest, 5–11 September 1999)’ (2015) 86(1) International Review of Penal Law 391, 400.
[366] See Tim Meijers and Marlies Glasius, ‘Trial as Messages of Justice: What Should Be Expected of International Criminal Courts?’ (2016) 30(4) Ethics and International Affairs 429, 437–8, 440–1.
[367] See generally Barrie Sander, ‘Justifying International Criminal Punishment: A Critical Perspective’ in Morten Bergsmo and Emiliano J Buis (eds), Philosophical Foundations of International Criminal Law: Foundational Concepts (Torkel Opsahl Academic EPublisher, 2019) 167, 192–240.
[369] Marlies Glasius, ‘“It Sends a Message”: Liberian Opinion Leaders’ Responses to the Trial of Charles Taylor’ (2015) 13(3) Journal of International Criminal Justice 419, 443.
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/journals/MelbJlIntLaw/2020/1.html