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TIMOTHY L H MCCORMACK[*] AND SUE ROBERTSON[†]
[At the end of a five week diplomatic conference in Rome in July 1998, the international community finally overcame a century of unsuccessful attempts to establish a permanent international criminal court with the adoption of a statute for the first such institution. Although the new Court will only become a reality after 60 states have ratified the Rome Statute, the provisions of the Statute are already influencing judicial decisions in both domestic and international trials of war crimes, crimes against humanity and genocide. This article examines the preconditions for the new Court’s exercise of jurisdiction: the so-called ‘triggering mechanisms’, the regime of state consent and the relationship of the international Court to domestic courts. The article also critiques the jurisdiction ratione materiae of the new Court and attempts to identify the points of departure from existing international criminal law. Although the Rome Statute is less robust in some respects than the authors would prefer, they argue that it encapsulates an unprecedented level of opportunity to challenge the prevailing reign of impunity for atrocity. Ultimately, the efficacy of the Rome Statute is entirely dependent upon firm political resolve and the practical assistance of the international community.]
By adopting this Statute, participants in the Conference have overcome many legal and political problems, which kept this question on the United Nations agenda throughout the Organization’s history. No doubt, many of us would have liked a Court vested with even more far-reaching powers, but that should not lead us to minimize the breakthrough you have achieved. The establishment of the Court is still a gift of hope to future generations, and a giant step forward in the march towards universal human rights and the rule of law. It is an achievement which, only a few years ago, nobody would have thought possible.[1]
From 15 June to 17 July 1998 in Rome, more than 160 governments, along with representatives of several international organisations and numerous non-government organisations, participated in a historic conference resulting in the adoption of a statute to establish a permanent International Criminal Court (‘ICC’).[2] The new Court will be charged with the task of ensuring individual criminal liability for serious violations of international humanitarian law and other specified crimes in cases where nation-states are unable or unwilling to bring perpetrators to account. Of particular significance, the Statute recognises the reality of modern warfare and communal violence[3] by giving the Court jurisdiction over war crimes in both intrastate and international armed conflict.[4] In addition, crimes against humanity will be punishable during times of peace as well as in the context of armed conflicts. The Statute reflects inevitable political compromise and the enduring tension inherent in multilateral negotiations between sovereignty and universality. Some aspects of the treaty have the potential to seriously restrict the effectiveness and independence of the Court. Nevertheless, in our view, the Statute represents an important step towards ending impunity and holding individual perpetrators of atrocities accountable at international law where national justice systems fail to do so.
This article identifies key aspects of the Rome Statute, with particular emphasis on the jurisdictional competence of the Court, and attempts to explain some of the legislative history and the jurisprudential significance of the highlighted provisions. As a product of multilateral negotiation, the Statute reflects limitations on the capacity of the Court to act — limitations which affirm and protect the primacy of independent sovereign nation-states. The article examines the pre-conditions for the Court’s exercise of its jurisdiction — the so-called triggering mechanisms for the institution of proceedings before the Court; the regime of state consent to the jurisdiction of the Court; and the principle of ‘complementarity’ which encapsulates the relationship between the new international Court and existing national courts. The paper then analyses the subject-matter jurisdiction of the Court — the specific crimes over which the Court will be able to exercise jurisdiction. First, however, we commence with a brief attempt to locate the establishment of the Court in its historical context.
It is not trite to assert that the conclusion of the Rome Statute was long overdue. Many commentators seized the opportunity to repeat the well worn cliché ‘all roads lead to Rome’, but this particular road was no autobahn. The first suggestions for an international criminal tribunal to enforce the emerging international laws of war were made as long ago as 1874.[5] At that time, the call came exclusively from the ranks of the non-governmental community. However, even before the turn of the twentieth century, at the First International Peace Conference in The Hague in 1899, governments were discussing the notion from within their own ranks.[6] The international community’s lost opportunities to create an effective international criminal law regime throughout the last 100 years have been critiqued in more detail elsewhere and will not be repeated here.[7] However, it is important to recognise at least some of the developments which contributed significantly to overwhelming multilateral support for adoption of the Statute in Rome.
Time and again throughout the diplomatic conference in Rome, references were made to one or both of the ad hoc International Criminal Tribunals for the Former Yugoslavia (‘ICTY’)[8] and Rwanda (‘ICTR’).[9] Sometimes these references were in relation to negotiations on the definition of crimes in the Rome Statute, citing specific provisions in the statutes of the tribunals or, in other cases, actual decisions of trial or appeal chambers. References to one or both of the tribunals were also made in negotiations about procedural aspects of the Rome Statute relating to eligibility criteria for election of judges and to the financing formulae for the new Court. For all the weaknesses inherent in the two ad hoc tribunals,[10] the fact of their creation, as well as the successful conduct of the first trials, significantly influenced the momentum for the conclusion of negotiations for the Rome Statute. No delegation was able to stand up in Rome and argue that an international criminal court was untenable. The ICTY and the ICTR demonstrate that an international criminal court is both desirable and necessary. The prevailing sense of historic obligation and opportunity throughout the diplomatic conference was palpable.
It would be inaccurate to create the impression that the establishment of the two ad hoc tribunals was determinative of the outcome in Rome. Indeed, the creation of the Nuremberg and Tokyo Tribunals in the aftermath of World War II represented a watershed in the process towards an effective international criminal law regime.[11] Again, despite all the inadequacies of Nuremberg and Tokyo,[12] these trials of major war criminals removed any uncertainty about the existence of a corpus of international crimes for which individuals could be tried and, if convicted, held individually liable before international tribunals.[13] For 50 years the promise of Nuremberg has remained unfulfilled, but the unquestionable significance of the legacy has remained.
The UN Secretary-General, Kofi Annan, asserted at the close of the Rome Conference that only a few years ago nobody would have thought the Rome outcome possible. It is only now, at the turn of the millennium, and after numerous large scale atrocities, that the momentum has swung forcefully behind the need to reign in impunity for gross atrocity and for the international community to take seriously the need for structures to enforce the law all too often violated. This momentum is perhaps most forcefully illustrated by the decisions of the House of Lords in the Pinochet extradition proceedings.[14] Although the House of Lords did not strictly rely on the adoption of the ICC Statute in their decision to refuse Senator Pinochet the protection of sovereign immunity for his crimes, it is clear from the majority judgments that the House was influenced by the burgeoning international developments in enforcement of both international humanitarian law and international human rights law.[15]
Just as many people wondered whether there would ever be accountability for the atrocities committed during Pinochet’s reign in Chile, the leadership of the Khmer Rouge in Cambodia enjoyed apparent immunity for more than 20 years for atrocities committed in their country. Only now, in the current climate, has the international community made serious calls for the establishment of an ad hoc tribunal for Cambodia.[16] More recently, the UN Security Council has demanded that those responsible for atrocities in East Timor be held accountable[17] while Mary Robinson, UN High Commissioner for Human Rights, has established a commission of inquiry to investigate atrocities in East Timor.[18] These recent developments reinforce the need for the early entry into force of the Rome Statute, even though the Court will not exercise retrospective jurisdiction.[19] We turn now to consider various aspects of the new Court’s jurisdictional competence.
The discussions relating to methods for bringing cases before the ICC proved to be among the most contentious debates of the drafting sessions for the ICC Statute.[20] In the final text, the Statute reflects a number of compromises and establishes a regime in which the Court’s jurisdiction can be ‘triggered’ in one of three ways.[21] The Court may exercise jurisdiction with respect to the crimes in the Statute if a situation is referred to the Prosecutor: (1) by the Security Council acting pursuant to its Chapter VII powers under the Charter of the United Nations; (2) by a State Party to the Statute; or (3) by the Prosecutor acting proprio motu — on their own initiative — following an independent investigation.[22] Referrals by States Parties and the Prosecutor acting in an independent capacity are subject to additional limitations before the Court will be permitted to exercise its jurisdiction. These limitations are discussed below.
Pursuant to article 13(b) of the Rome Statute, the ICC may exercise its jurisdiction if ‘[a] situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by the Security Council acting under Chapter VII of the Charter of the United Nations.’ This provision, in effect, acknowledges the primacy afforded to the Security Council in maintaining international peace and security.[23] The Security Council has always had a wide range of powers under the Charter to determine and respond to threats to international peace.[24] Most significant is article 42 which authorises the Council to impose its decisions through the use of force where necessary to restore international stability.[25]
In light of this pre-eminence of the constitutional authority of the Security Council, and particularly of the five permanent members who have the power of veto over Council decisions,[26] it was hardly surprising that member states of the Council jealously guarded their established positions during the drafting sessions on the issue of the Court’s jurisdiction. All states recognised, albeit reluctantly in some cases, that the Rome Statute could not diminish the UN Security Council’s constitutional authority. However, there was extensive debate about what role, if any, the Council would have beyond the referral function in relation to prosecutorial action. At least four of the five permanent members of the Security Council (the United States, China, France and the Russian Federation) advocated strongly for the power to veto prosecutions which involved situations of which the Council was seized under Chapter VII of the Charter.[27] Such a provision would have granted inordinate influence over the independence of the Court to members of the Council. If such a provision had been included, a member of the Council could, potentially, have precluded the Court from dealing with a case by simply including the situation on the agenda of the Council.
Delegations opposing such a provision (loosely termed the ‘like-minded’ group for their shared position on many key areas during the negotiations)[28] expressed concern that vesting the Security Council with power to control the Court’s docket would jeopardise the Court’s judicial independence and politicise its work. As one commentator astutely observed, the large number of existing and emerging crises on the Security Council agenda at any one time could seriously restrict the number of investigations taken on by the Court should its jurisdiction exclude matters being dealt with by the Security Council.[29]
The final text of the ICC Statute reflects a compromise proposal put forward by the delegation of Singapore. Rather than the Court being prohibited from investigating a matter being dealt with by the Security Council, the provision shifts the onus onto the Security Council to affirmatively halt an investigation. Article 16 provides that no prosecution may be commenced for twelve months where the Security Council has adopted a resolution under Chapter VII of the UN Charter to that effect.[30] Permanent members of the Security Council, therefore, do not possess the right to obstruct an ICC investigation by exercising an individual power of veto. Rather, the Security Council as a whole must take an affirmative step by passing a resolution should it wish to prevent the commencement of a prosecution. This provision effectively turns the onus on the Council around and now leaves open the possibility that one permanent member of the Council can veto a spurious request for the Court to desist from the institution of particular proceedings — a much improved situation to that proposed by several of the permanent members of the Council.
The Court will also be able to exercise jurisdiction in respect of an alleged crime under the Statute where a referral is made by a State Party in accordance with article 14.[31] A State Party is required to, as far as possible, provide supporting documentation specifying the relevant circumstances for its referral. Substantial scepticism has been expressed about the likelihood of resort to this particular triggering mechanism. As the experience of human rights treaty bodies has demonstrated, mechanisms which provide for state-based complaint procedures have been greatly under-utilised to date because states are reticent to initiate proceedings against other states or their nationals due to the political and diplomatic ramifications of doing so.[32] There is little to suggest that the Rome Statute’s provision for state-based complaints will experience greater popularity. It seems much more likely that most of the Court’s work will come through UN Security Council referral rather than by way of State Party complaint.
Previous drafts of the ICC Statute originally provided for only two methods by which an ICC investigation could be commenced: either by Security Council referral or a State Party lodging a complaint with the Prosecutor. However, after intense lobbying from the like-minded states and numerous human rights non-government organisations, the final Statute included an additional provision for the exercise of the Court’s jurisdiction based on a Prosecutor with independent powers of investigation.[33] The Prosecutor is empowered under the Statute to receive information on potential crimes from a variety of sources including states, organs of the United Nations, inter-governmental and non-governmental organisations, and ‘other reliable sources’.[34]
The concept of a Prosecutor with independent powers of investigation was vigorously opposed by four of the permanent members of the Security Council (not the UK) and by states such as India and Pakistan. Such delegations expressed concern about the potential for abuse of the Prosecutor’s power and the instigation of politically motivated complaints. These concerns resulted in a number of provisions in the Statute placing safeguards on prosecutorial discretion. Based on a proposal introduced by the delegations of Germany and Argentina, the Prosecutor must now gain the authorisation of the Pre-Trial Chamber before proceeding with an investigation.[35] The Pre-Trial Chamber is obliged to determine that there is a reasonable basis to proceed and that the case falls within the jurisdiction of the Court.[36] This provision is viewed by its advocates as an important victory in the establishment of a truly independent court. The potential for the Prosecutor to act independently with the authorisation of the Pre-Trial Chamber will help assuage concerns about the inherently political considerations of the UN Security Council as well as of individual states.
A Security Council referral of a situation to the Court overrides any requirement of the consent of a relevant state as a precondition for the Court’s exercise of jurisdiction: that authority is inherent in the Council’s constitutional authority under Chapter VII of the UN Charter. However, in respect of cases initiated either by complaint from a State Party or on the basis of an independent investigation on the part of the Prosecutor, the Court does not exercise compulsory jurisdiction. Instead, the Rome Statute requires the consent of either the territorial state or the state of the accused’s nationality for the case to proceed.[37] If either the territorial state or the state of nationality are not States Parties to the Statute, it is possible for one or other of them to extend ad hoc consent to allow the Court to exercise its jurisdiction in a particular case.[38]
Whilst there were a number of less restrictive proposals tabled for this section,[39] the final text unfortunately reduces the number of situations in which the Court will be permitted to act. As has been pointed out by a number of human rights groups, in practice, the territorial state and the state of nationality will often be the same state, particularly in cases of internal armed conflict.[40] This consent requirement could protect dictators who perpetrated grave crimes against their own populations.[41] A restricted regime of state consent also has the potential to protect criminals travelling outside their own countries, as custodial states wishing to turn over a visiting suspect to the ICC will have no legal basis (excluding universal jurisdiction in their own national courts) under the Statute to do so.
Nevertheless, it should be recognised that this state consent regime was the biggest stumbling block to US support for the Rome Statute. The US delegation insisted that the consent of both the territorial state and the state of nationality was critical to the credibility of the Court. The attitude of the head of the US delegation to the effects of article 12 is so profoundly negative that it warrants verbatim inclusion here:
It is simply and logically untenable to expose the largest deployed military force in the world, stationed across the globe to help maintain international peace and security and to defend U.S. allies and friends, to the jurisdiction of a criminal court the U.S. Government has not yet joined and whose authority over U.S. citizens the United States does not yet recognize. No other country, not even our closest military allies, has anywhere near as many troops and military assets deployed globally as does the United States. The theory that an individual U.S. soldier acting on foreign territory should be exposed to ICC jurisdiction if his alleged crime occurs on that territory, even if the United States is not party to the ICC treaty and even if that foreign state is also not a party to the treaty but consents ad hoc to ICC jurisdiction, may appeal to those who believe in the blind application of territorial jurisdiction. But the terms of Article 12 could render nonsensical the actual functioning of the ICC.[42]
The final version of article 12, requiring the consent of either the territorial state or the state of nationality, was offered as a compromise provision from the proposed option which required the consent of one of as many as four affected states.[43] Clearly the ‘or’ option was unacceptable to the US delegation irrespective of the number of listed states. Unfortunately, the supposed ‘safeguard’ of ‘complementarity’, discussed below, failed to alleviate US concern on this point[44] and article 12 remains the source of much ongoing US opposition to the Statute.
Although the International Law Commission’s 1994 Draft Statute for an International Criminal Court[45] left open the question of the relationship between the new Court and national courts, it was agreed between states early on in the preparatory negotiation phase for the Rome Statute that the new Court would not exercise primary jurisdiction over national courts. The relationship between the two ad hoc tribunals for the Former Yugoslavia and Rwanda and the relevant national courts of the parties to those two conflicts was never a serious precedent for the same issue in the Statute of the new Court. It is one thing for the UN Security Council to establish tribunals with primary jurisdiction over national courts pursuant to the Council’s enforcement powers under Chapter VII of the UN Charter, however, it is altogether a different thing for the states of the international community to negotiate the terms of a multilateral treaty dealing with this sensitive issue of jurisdictional relationships.
Although the Rome Statute does not use the term ‘complementarity’, the Preamble describes the new Court as a ‘complement’ to existing national courts and processes[46] — hence the coining of the term ‘complementarity’. The choice of ‘complement’ was, of course, a conscious and deliberate one: the decision by the international community of sovereign independent states to negotiate a statute for a new permanent international criminal court, while undertaken with an acute sense of the historical significance of such an institution, was never intended to override state sovereignty entirely. The real question in Rome was one of demarcation — where to draw the line on the guarantee of national court primacy — and of determination — who would decide on which side of that line a particular case fell.
The agreed formula in the Rome Statute is that a state with jurisdictional competence has the first right to institute proceedings unless the ICC decides that the state ‘is unwilling or unable genuinely to carry out the investigation or prosecution.’[47] The assumption in Rome was that such a determination would be straightforward for the ICC in either of two situations: (1) where the state, for whatever reason, chooses not to exercise its jurisdictional competence — the ‘unwilling’ state; or (2) where the state’s legal and administrative structures have completely broken down — the all too common so-called ‘failed state’ phenomenon — representing the quintessentially ‘unable’ state. There may be other situations, not contemplated in Rome, in which the Court could also determine that a relevant state is ‘unwilling or genuinely unable’ to exercise its own jurisdiction.
If a state does not have penal legislation covering one or more of the crimes within the jurisdiction ratione materiae of the Court, it may be relatively straightforward for the Court to determine that the state is ‘unable genuinely’ to proceed with the case.[48] It may also be possible for the Court to determine that a relevant state’s grant of amnesty from prosecution in its own courts to an individual alleged to have committed genocide, crimes against humanity or war crimes is an expression of the state’s unwillingness to prosecute.[49] In that light, Chile’s attempt to protect perceived threats to its own sovereignty from the possible extradition of Senator Pinochet to Spain, while maintaining an amnesty for life for Pinochet from Chilean courts, is an interesting example to contemplate.
Early drafts of the ICC Statute provided for jurisdiction over a broad range of so-called ‘treaty’ crimes including, for example, terrorism, drug trafficking and aircraft hijacking, in addition to the ‘core’ crimes of genocide, war crimes and crimes against humanity. However, intense negotiations during the Preparatory Committee Meetings, amidst concerns of a breakdown in consensus, resulted in agreement to reduce the subject-matter jurisdiction of the Court to the core crimes.[50] A number of states, including Australia, attended the Rome negotiations with the intention of arguing against the inclusion of the crime of aggression for fear of protracted definitional debates and the risk this posed to obtaining an agreed text for the Statute. Other states, however, argued that at least the possibility of aggression, as an existing category of international crime, should be included in the subject-matter jurisdiction of the Court. The final text reflects a compromise: provision was made for jurisdiction over the crime of aggression subject to future agreement on its definition.[51]
The law of international human rights has made a clear impact on the ICC Statute and, in particular, on the subject-matter jurisdiction of the Court.[52] In this regard, the Statute reflects the evolving nature of the international legal system and the increasing prominence placed on the individual at international law, both as a participant in and a beneficiary of the protections created by human rights frameworks.[53] Whereas the traditional international legal order primarily applied to sovereign states and left the individual without redress against his or her own state for violations of rights,[54] human rights jurisprudence stipulates that obligations are owed by states directly to individuals. The influence of this jurisprudence on the ICC Statute is particularly evident from the extension of war crimes to conflicts within states as discussed below. The impact of the children’s rights movement on the Statute is also evidenced by the classification of the use of child soldiers as a war crime.[55]
The Statute provides that the Court’s jurisdiction is prospective so that only those crimes committed after the Statute’s entry into force are capable of prosecution.[56] We turn now to consider each of the definitions of the core crimes in turn.
There was never any doubt that genocide would be included in the Rome Statute as a crime in its own right. The only issue for discussion was whether or not the Genocide Convention[57] definition of the crime would be broadened. Ultimately, it became clear that there was overwhelming agreement for the Statute definition to replicate article 2 of the Convention. Whilst some delegations would have preferred to address the limitations in the definition by including political, social and other identifiable groups in the list of protected persons, overwhelming support was expressed for refraining from opening the definitional debate.[58] This decision is explicable both in terms of political pragmatism[59] and international recognition of the peremptory status of the prohibition of genocide.[60] The fact that the Convention definition was already incorporated into both the statutes for the Yugoslavian and Rwandan Criminal Tribunals[61] may also have been influential.
The Genocide Convention, which entered into force in 1951, provides for jurisdiction over the crime of genocide to be vested in either a ‘competent tribunal of the State in the territory in which the act was committed’ or ‘by such international penal tribunal as may have jurisdiction’.[62] It has taken almost 50 years for the aspirations of the Genocide Convention to be realised through the negotiation of a Statute for a permanent international criminal court with jurisdiction over the crime of genocide.[63] The provision for an international penal tribunal was envisaged by the drafters of the Genocide Convention as necessary to counter concerns that state perpetrators of genocide could not be relied upon to punish offenders within their own territory.[64] Indeed, concern relating to the failure of national justice systems to bring war criminals to account remains a principal reason necessitating the establishment of the ICC.
Reliance on the traditional definition of genocide means that the Rome Statute inherits the same ‘gaps, artificialities and possible dangers’[65] inherent in the Genocide Convention itself. Most notably, the high threshold of demonstrating the requisite ‘intent to destroy’[66] and the exhaustive list of target groups (racial, religious, ethnic and national) who receive protection under the definition of genocide have been the subject of much academic discussion.[67] The historical, social and political imperatives that were operating at the time the Genocide Convention was being drafted can be explained exclusively in terms of a global reaction to the enormity and obscenity of the Nazi holocaust.[68] Whilst nations were adamant to denounce the mass exterminations perpetuated by the Third Reich, the Genocide Convention could not be so broad as to inculpate member states of the drafting committee for activities they had engaged in themselves. For example, the extension of protection to political groups in the definition of genocide was always highly contentious for fears that acts undertaken by states to maintain internal stability and suppress domestic rebellion might be labeled as genocide.[69] Consequently, while ethnic and racial groups such as the Bosnian Muslims or Rwandan Tutsi are ‘protected’ by the prohibition against genocide, the large scale extermination of political opponents by the Khmer Rouge in Cambodia from 1975 to 1978 would be unlikely to come within the definition. This is despite the fact that the massacres which occurred under Pol Pot’s regime are widely considered to be a ‘paradigmatic case of genocide’.[70]
In the judgment of the Trial Chamber of the ICTR in Prosecutor v Akayesu,[71] the first successful international prosecution for the crime of genocide, the ICTR acknowledged that the genocidal intent of an offender is a factor which is difficult, ‘even impossible, to determine.’[72] However, the Chamber found that it was possible to infer genocidal intent (to destroy the Tutsi as an ethnic group) from a number of presumptions of fact including: the overall pattern of violence against the same group, systematic targeting of victims to the exclusion of other ethnic groups, and a pattern of words and actions that indicated an intent to destroy the pertinent group in whole or part.[73]
The recent Australian High Court decision in Kruger v Commonwealth[74] provides a domestic example of the difficulties involved in satisfying the ‘intent to destroy’ requirement contained in the Genocide Convention definition. In Kruger, a group of Aboriginal plaintiffs who had been forcibly removed from their Aboriginal families as children, challenged the constitutional validity of the Aboriginals Ordinance 1918 (NT) which authorised their removal. The Ordinance established a system of Aboriginal reserves and institutions and enabled the ‘Chief Protector of Aborigines’ to forcibly place an Aborigine onto a reserve or in an institution.[75] The plaintiffs argued, inter alia, that the Ordinance violated an implied constitutional right to freedom from a law authorising the crime of genocide, prohibited at customary international law.[76] One issue that arose to be determined by the Court, therefore, was whether the Ordinance authorised the crime of genocide. The Court unanimously held that the Ordinance did not do so, as the words of the Ordinance did not authorise or evince the necessary intent to destroy, in whole or part, the racial group.[77] Significantly for the Court’s reasoning, the Ordinance conditioned the power of removal and confinement of Aborigines upon the Protector’s opinion that it was in the ‘interests of the aboriginal or half-caste for him to do so’.[78] Such statutory wording indicated (however misplaced) a beneficial intent on the part of the legislature which displaced any intent to destroy the racial group.[79]
Putting to one side the issues of the status of the norm prohibiting genocide prior to 1948, and the lack of implementing legislation in Australia in relation to the Genocide Convention, the judgment in Kruger highlights the difficult threshold placed on plaintiffs (or on prosecutors) to prove the necessary ‘intent to destroy’ a racial group, even where the acts in question (forced removal of children) are arguably prohibited under the Genocide Convention.[80] The judgment also highlights the fraught inter-relationship between the requisite ‘intent’ to destroy a protected group and the relevance, if any, of ‘motive’ behind acts that result in the partial destruction of a racial group.[81] It is at least arguable that the plaintiffs may have had more success challenging individual decisions made under the Ordinance than the Ordinance itself.[82]
In Rome, re-opening historically divisive debates on the definition of genocide ran the risk of jeopardising unanimous, or at least widespread, support for the ICC Statute. Instead, it was agreed that the Convention definition would be retained on the understanding that subsequent negotiations on the definition of crimes against humanity would ensure coverage of acts excluded from the definition of genocide on the grounds solely of the identity of the target group.[83] Although a matter of speculation, the political pressure to revisit historical debates on genocide may well have increased had not the list of acts constituting crimes against humanity in the Statute been so extensive.
The inclusion of crimes against humanity as a separate and distinct category of crime within the subject-matter jurisdiction of the Court was also entirely uncontentious. Accordingly, some delegations preparing for Rome failed to anticipate a protracted negotiation process on the content of article 7 of the Statute.[84] Any confidence that negotiation of this provision would be straightforward was shown to be misplaced and naive. Whereas the definitions of genocide and war crimes both have strong conventional roots which formed the starting points for negotiations in respect of articles 6 and 8 of the Statute, crimes against humanity lacked a treaty based definition. It is true that the statutes of the tribunals for Nuremberg, Tokyo, the Former Yugoslavia and Rwanda all included an enumerated list of acts which could have constituted crimes against humanity but none of those lists were ever subjected to a global multilateral negotiation process. Now, of course, there is a treaty definition of crimes against humanity but the process of negotiating that definition exceeded two weeks of diplomatic conference time and proved to be a complicated and often frustrating task.
The drafting of a new definition of crimes against humanity provided a unique opportunity to develop international criminal law on the subject. As with all multilateral negotiations, article 7 of the Rome Statute includes a mixture of results — some significant developments and some major concessions to those delegations arguing for as narrow a subject-matter jurisdiction as possible.[85] The provision consists of a chapeau which outlines the threshold requirements for a crime against humanity and an enumerated list of acts which can constitute the crime. Article 7(2) also includes a list of clarifications on the meaning of specific words or phrases in article 7(1) and so must be read conjunctively in any interpretation of related provisions in paragraph 1. The key aspects of article 7 will now be considered in turn.
Despite the resistance of some of the more ‘obstructive’ delegations in Rome to the removal of the nexus with an armed conflict for the commission of a crime against humanity, article 7(1) now makes no reference to a requirement that an armed conflict exist. This new position is a major breakthrough in the development of crimes against humanity as a distinct and separate category of international crime. It is an affront to a serious challenge to impunity for atrocity that a person could avoid individual culpability simply because their acts were not committed during an armed conflict. Criminal culpability ought to focus exclusively on the nature of the alleged atrocity and on individual responsibility for its perpetration.
The drafters of the Nuremberg Charter anticipated criticism of the inclusion of a separate category of offences of ‘crimes against humanity’ on the ground that the category did not exist in international criminal law prior to the establishment of the Tribunal. The maxim nullem crimen sine lege would be violated if defendants were convicted on the basis of acts which did not constitute crimes at the time they were allegedly committed. In an attempt to minimise any such criticism, the drafters included a requirement that the alleged crime against humanity occur during the course of a war of aggression.[86] The motivation behind this formula was to render the category of crimes against humanity an extension of the long accepted category of war crimes.[87]
Any uncertainty about the legal status of crimes against humanity as a separate category of international crime before Nuremberg and Tokyo has been removed by virtue of the legacy of the International Military Tribunals. Since the late 1940s the international community has simply accepted without question the reality of the normative status of this distinct category of crime. The problem has always been that the Nuremberg formulation has constituted the norm and that formulation includes a requisite nexus with an armed conflict.
The drafting of the subject-matter jurisdiction of the Statute for the ICTY, the first international criminal tribunal since Nuremberg, was deliberately founded in customary international law. The UN Secretary-General explained the need to avoid any uncertainty about applicability of conventional, or treaty based, norms to the acts of particular defendants because of their nationality or participation with a party to the conflict.[88] Consequently, the ICTY Statute reflects a conservative and non-controversial approach to the definition of particular international crimes. On the basis of this particular approach, the definition of crimes against humanity in article 5 of the Statute incorporates the Nuremberg formulation requiring the nexus with an armed conflict.[89] Of course, in the context of the Balkans, this particular requirement has not posed a problem because any alleged crime against humanity has occurred in the context of an armed conflict.[90] However, in relation to the broader development of customary international criminal law, the reaffirmation of the Nuremberg formula did little to assist.
In Prosecutor v Tadic,[91] the Appeal Chamber of the ICTY, in response to Tadic’s challenge to the jurisdictional competence of the Tribunal, reasoned that the Nuremberg formulation was no longer reflective of customary international law and that the nexus with an armed conflict was now no longer required.[92] Following the adoption of the Statute of the ICTY, the Rome Statute removed the requisite nexus with an armed conflict and makes no reference to that element of the offence at all.[93] The decision to finally remove the nexus with armed conflict represents a major advance in the Rome Statute and will undoubtedly constitute an authoritative articulation of the prevailing international legal position.
It had been agreed during the Preparatory Committee negotiations that the Rome Statute would not constitute a codification of international criminal law. Instead, the exercise in relation to substantive crimes at the diplomatic conference was to negotiate the subject-matter jurisdiction of the new Court which would only ever deal with ‘the most serious crimes of concern to the international community’.[94] Accordingly, it was accepted in Rome that there must be a threshold level of gravity for inhumane acts to qualify as crimes against humanity. Despite this general agreement, delegations demonstrated divergent views about demarcating the jurisdictional competence of the Court on the basis of the gravity of alleged crimes against humanity. The two accepted indices of the gravity of alleged acts were ‘widespread’ and ‘systematic’ but the argument essentially turned on whether to treat these two qualifiers conjunctively or disjunctively — a classic ‘and/or’ debate.[95]
‘Widespread’ relates to the scale of an attack against a civilian population — not an isolated act but large scale action directed against multiple victims. ‘Systematic’, on the other hand, carries a connotation of premeditation by an organised group — an attack carefully planned and undertaken as part of a common policy. Delegations arguing for the lower threshold referred to the Statute of the ICTR[96] and to jurisprudence from the ICTY[97] to support the ‘widespread or systematic’ formula. Other delegations arguing for ‘and’ expressed grave concerns about the broad scope of the definition if the only threshold requirement was ‘widespread or systematic’. The compromise solution is now reflected in the chapeau to article 7(1) and in the clarification in article 7(2)(a). That is, the particular acts must have been ‘committed as part of a widespread or systematic attack directed against any civilian population’ where such an attack is understood to mean ‘a course of conduct involving the multiple commission of acts referred to in paragraph 1 against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack’.[98]
This compromise formulation does more than discount isolated and single acts as crimes against humanity. While the prosecution will not be required to prove that the alleged acts were both widespread and systematic, it will now be insufficient merely to prove one or other index of gravity alone. If the particular acts are widespread, they must also be shown to have been committed in furtherance of a common policy. If the attack was systematic, it must also be shown that there were multiple acts involved — not a single isolated act or incident.
It may well be true that the most serious attacks against a civilian population will be covered by this definition. However, the reality of the compromise formulation is that it raises the threshold requirements above the level hoped for by a substantial number of delegations in Rome.[99] One hopes that it will not be more difficult for the prosecution to prove the elements of a crime against humanity in particular cases.
The enumerated list of acts which can constitute crimes against humanity in article 7(1) include two acts not previously included in similar enumerated lists. These two new inclusions are apartheid and enforced disappearance. Some delegations expressed the view that explicit reference in article 7(1) to such acts was unnecessary because both would be covered by either of the existing acts of ‘persecution’ or ‘other inhumane acts’. However, no delegation was prepared to oppose the explicit inclusion of either act for two reasons: (1) the states promoting explicit reference to these acts did so on the basis of bitter recent experience (in the case of apartheid, the Southern African States — particularly South Africa — and in the case of enforced disappearances, Latin American States) and no delegation wanted to be accused of indifference to the trauma and pain of the proposing states; and, (2) both acts had already been characterised as crimes against humanity in earlier international instruments.[100]
It has already been mentioned that there was great reluctance to revisit the definition of genocide and a preference to extend the definition of crimes against humanity rather than alter a well-accepted and long-established treaty definition in the Genocide Convention. In contrast, the definition of apartheid in article 7(2)(h) departs from the Apartheid Convention definition.[101] The disparity of approach to the sanctity of treaty definitions is explicable in the context of the negotiations on the inclusion of apartheid. The Apartheid Convention has many fewer States Parties than the Genocide Convention and, consequently, fewer delegations felt particularly committed to the treaty definition. Perhaps more significantly, the debate centred on whether or not to include apartheid explicitly in the list of acts in article 7(1). Once the inclusion was agreed in principle, the Working Group on Crimes Against Humanity was happy to leave it to the small group of concerned delegations to agree on wording to put to the Working Group.
Again in contrast to the approach to the accepted treaty definition of genocide, the definition of torture in article 7(2)(e) has been broadened beyond the accepted treaty definition. Article 1 of the Torture Convention limits the range of acts constituting torture to those committed by a state actor or public official.[102] ‘Torture’ is defined in article 7(2)(e) as ‘the intentional infliction of severe pain or suffering, whether physical or mental, upon a person in the custody or under the control of the accused’ – a formulation which no longer requires the involvement of a public official. The Torture Convention definition has been subjected to sustained criticism for its exclusion of acts committed by anyone not acting in an official capacity. The broadened definition in the Rome Statute is a welcome development and an affirmation that the international community has rectified one major inadequacy of the Convention definition.
The Rome Statute makes a significant contribution to international jurisprudence concerning the formulation of gender-specific sexual offences. The explicit recognition of a range of sexual crimes constituting both war crimes and crimes against humanity is indicative of the international community’s heightened awareness of sexual violence against women and its desire to redress the historical impunity with which such acts have been treated.[103] Now, article 7(1)(g) includes ‘[r]ape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity’[104] as acts which can constitute crimes against humanity.
As discussed above, the Statute’s removal of the historical nexus between crimes against humanity and armed conflict extends the boundaries of criminal liability for sexual violence to times of peace. The same acts also constitute war crimes in circumstances constituting either an international[105] or internal[106] armed conflict. The Statute also includes a new ground of persecution on the basis of gender, however, the provision is accompanied by a limitation that such persecution must be committed in conjunction with another crime under the Statute.[107] Additionally, rape and other acts of sexual violence can be separately prosecuted under the Rome Statute as war crimes involving grave breaches of the Geneva Conventions, which include torture, inhuman treatment, willfully causing great suffering or serious injury to body or health.[108]
The breadth of sexual crimes contained in the Rome Statute is a significant recognition of the historical and contemporary experiences of brutality suffered by women during armed conflict and civil unrest. It is only in recent years, for example, that belated recognition has been given to crimes committed against thousands of Asian and European women and girls forced into sexual slavery as so-called ‘comfort women’ by the Japanese army during World War II.[109] In more recent times, sexual atrocities, including the ‘massive, organised and systematic detention and rape of women, in particular Muslim women, in Bosnia-Herzegovina’[110] committed largely by Bosnian-Serbs,[111] provided renewed impetus to address the problem of sexual violence against women during armed conflict.[112] In Bosnia, the international community was confronted with evidence of rape and forced pregnancy perpetrated by soldiers as part of a campaign designed to alter the ethnic composition of, and hence to exterminate, the Muslim population. In Rwanda, sexual violence, including assault, sexual mutilation and rape (often as a precursor to murder), was used as an integral part of a genocidal strategy directed at Tutsi (and Hutu) women during the 1994 Rwandan genocide.[113]
Several recent decisions by the ad hoc International Criminal Tribunals (one from Rwanda[114] and the others from the Yugoslavian Tribunal[115]) provide grounds for cautious optimism for both the conceptualisation and prosecution of sexual offences against women. Although a full discussion of the judgments is beyond the scope of this article, several points should be made that are of particular significance to the future prosecution of gender-based crimes.[116] First, the judgments articulate a progressive and broad definition of rape at international law that rejects a ‘technical’ approach[117] and instead emphasises the coercive nature of the offence.[118] Second, the judgments acknowledge rape as a crime in its own right, either as a crime against humanity or as a war crime and also, where the definitional elements exist, as a method of torture[119] and a means of perpetuating genocide.[120] The Trial Chamber in Akayesu acknowledged that rape can constitute torture where it is used for ‘such purposes as intimidation, degradation, humiliation, discrimination, punishment, control or destruction of a person’ when ‘inflicted by or at the instigation of or with the consent or acquiescence of a public official or other persons acting in an official capacity.’[121] Further, rape in the context of detention has been recognised as a form of discrimination against women.[122] Such a finding is significant as it permits an additional basis, under the definition of torture, upon which to prosecute rape as torture.[123] Indeed, the Rome Statute provides even greater scope for the prosecution of sexual crimes as torture by removing the requirement for ‘official’ authority or involvement.[124] Finally, the three judgments from the ad hoc criminal tribunals demonstrate the direct international criminal responsibility that will attach to individuals who, whilst not committing acts of sexual violence directly, knowingly participate in or give tacit encouragement to such crimes.[125]
On a more practical note, the Akayesu case affords an important insight into the vigilance that is required (both by the Prosecutor and the international community) to ensure that sexual violence is addressed in indictments. The Prosecutor’s original indictment against Akayesu included 13 counts of genocide and crimes against humanity (murder).[126] However, it was only after a substantial amount of evidence relating to sexual violence emerged during the hearing and an amicus curiae (friend of the court) brief was filed by the Coalition for Women’s Human Rights in Conflict Situations,[127] that the Rwandan Tribunal agreed to give the Prosecutor leave to amend the indictment to include three new counts of rape and sexual violence.[128] The amicus curiae brief is an example of the instrumental role played by coalitions of non-government organisations in effectively lobbying governments at the international level to address crimes of sexual violence against women in armed conflict.[129] This role will no doubt continue under the establishment of the ICC, with non-government organisations providing an important source of information for the Prosecutor when exercising her or his independent discretion. With safeguards such as the establishment of a Victims and Witnesses Unit within the Registry of the ICC (staffed with experts in trauma and sexual offences),[130] the Court looks well placed to address the needs of victims of sexual crimes and to hopefully avoid the shortcomings of its ad hoc predecessors.
There are two important so-called ‘catch-all’ provisions in article 7 of the Rome Statute. The first occurs in article 7(2)(g) and relates to the specific grounds of persecution which can constitute crimes against humanity. The second is the general ‘catch-all’ provision in article 7(1)(k). Some delegations argued against the inclusion of either catch-all provision on the grounds that exhaustive enumerated lists are the only way to ensure clarity and certainty for prosecutors — open-ended possibilities spawn uncertainty and are difficult to implement into domestic criminal law. Fortunately, these arguments did not prevail and the Court will not be precluded from dealing with new, currently unimagined, expressions of human depravity purely on the basis of the existence of exhaustive lists of currently identified acts.
In relation to persecution on prohibited discriminatory grounds, some delegations attempted to narrowly prescribe an exhaustive list of grounds based on the list in the Nuremberg Charter (‘political, racial or religious grounds’)[131] and the additional grounds referred to in the Statute of the ICTR (‘national, political, ethnic, racial or religious grounds’).[132] Other delegations argued strongly that any additional grounds for persecution would be excluded by such an approach. Surely the emphasis ought to be on the persecution as criminal and the particular grounds for the persecution ought not determine culpability. The compromise formula agreed to in article 7(1)(h) is ‘or other grounds that are universally recognised as impermissible under international law’.[133] It has been suggested that this formula of universal recognition raises a very high threshold for inclusion of a particular ground for persecution not mentioned explicitly in the existing list.[134] However, it is open to the Court to apply this formula by reasoning that persecution of an identifiable group is universally recognised as impermissible at international law on any grounds whatsoever. The compromise formula allows the Court to focus on the persecution. The exhaustive list of grounds precluded that approach and it is pleasing that the final version of the Statute does not limit the Court so narrowly and unacceptably.
A provision similar to the general ‘catch-all’ in article 7(1)(k) appeared in the Nuremberg and Tokyo Charters and in the Statutes of the ICTY and ICTR. Accordingly, it was difficult for delegations to argue against the inclusion of a provision of this nature. However, in arguing for the need to ensure the inclusion of a provision of this type, it was accepted by delegations that there may need to be some reference to a threshold level of gravity to make this provision commensurate with the other acts referred to in the enumerated list. The clarification to identify the requisite threshold of gravity is articulated as ‘[o]ther inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.’[135] Again, despite concerns about the imprecision of a ‘catch-all’ provision,[136] the inclusion of such a provision is important to ensure the Court is able to convict a defendant at some stage in the future for the commission of an atrocity not otherwise identified in the list of specific acts.
In contrast with crimes against humanity, the negotiations to define war crimes did have accepted treaty definitions as a starting point and yet it was widely known that the negotiations on war crimes would be protracted and difficult. Again, it was always accepted that the subject-matter jurisdiction of the Court must include a category of war crimes. However, it was obvious from the first reactions to the International Law Commission’s Draft Statute for the Court in 1994[137] that states had disparate views about what should be included in the final version of the statute for the new Court. Unanimity of opinion did exist for the inclusion of grave breaches of the four Geneva Conventions of 1949,[138] but beyond that specific category of war crimes, widespread disagreement emerged in two key areas: (1) whether to include, and if so precisely which, acts other than the grave breaches of the 1949 Conventions committed in the context of international armed conflicts; and, (2) whether to include, and if so which, acts committed in the context of non-international armed conflicts.
The substantive provisions of article 8 of the Rome Statute are now grouped in four distinct sections in order from the least to the most contentious: (1) article 8(2)(a) lists grave breaches of the four Geneva Conventions of 1949; (2) article 8(2)(b) identifies other serious violations of the laws and customs applicable in international armed conflicts; (3) article 8(2)(c) includes serious violations of Common Article 3 of the Geneva Conventions; and (4) article 8(2)(e) enumerates other serious violations of the laws and customs applicable in armed conflicts not of an international character. The most significant aspects of the definition of war crimes in article 8 are as follows.
Some delegations argued in Rome that, since the Court was intended only to exercise jurisdiction over the most serious international crimes, the definition of war crimes ought to include a threshold level of gravity. Other delegations objected to this proposal on the grounds that the Court ought to be able to exercise a discretion about the exercise of its jurisdiction over an alleged war crime. Article 8(1) now provides an indicative threshold such that ‘[t]he Court shall have jurisdiction in respect of war crimes in particular when committed as part of a plan or policy or as part of a large-scale commission of such crimes.’[139] The use of the term ‘in particular’ leaves open the possibility that the Court could exercise its jurisdiction in respect of a single act constituting a war crime within one or other of the acts listed in article 8(2).[140] We have already considered the threshold levels of gravity required for a crime against humanity in article 7 of the Rome Statute. The possibility of a prosecution for a single act constituting a war crime pursuant to article 8 stands in marked contrast to the threshold level of gravity for a crime against humanity — a contrast also reflected in the customary international law requirements for each category of crime.
One of the most contentious aspects of the negotiations in Rome involved the extension of the definition of war crimes to non-international armed conflicts. Delegations opposed to this extension argued strenuously that violations of Common Article 3 of the four Geneva Conventions are not included in the list of grave breaches in each of the Conventions and that Additional Protocol II of 1977 contains no provisions to deal with grave breaches of international war crimes law. Accordingly, the argument was put, customary international law only recognises war crimes in international armed conflicts and not in those of a non-international character.
The delegations which argued for the extension of the definition of war crimes to internal armed conflicts were not prepared to accept a Court without jurisdiction over the overwhelming majority of atrocities committed in armed conflicts in the world. For example, the increasing prevalence of wars fought within states is demonstrated by inter-ethnic conflicts such as those in Bosnia, Sierra Leone, Sudan, Rwanda and Angola. To counter the arguments about Common Article 3 and Additional Protocol II, delegations drew substantial support from the Statute of the ICTR[141] as well as from comments made by the Appeal Chamber in Dusko Tadic’s challenge to the validity of the ICTY.[142]
As previously indicated, sub-paragraphs (2)(c) and 2(e) of article 8 now incorporate the lists of acts which can constitute war crimes within non-international armed conflicts. Article 8(2)(c) incorporates serious violations of Common Article 3 while the list of acts in article 8(2)(e) is drawn extensively, but not exclusively, from Additional Protocol II.[143] The coverage of acts in non-international armed conflicts is much less detailed than that for international armed conflicts. The disparity in level of detail reflects the existing disparities in the major international instruments — possibly a disappointment for many observers but part of the delicate balance between making the Statute as acceptable to as many delegations as possible without prejudicing the efficacy of the Court.
The four Geneva Conventions of 1949, the two Additional Protocols of 1977 and the Hague Conventions of 1899[144] and 1907[145] certainly provided the principal source of content for article 8 of the Rome Statute. However, there are also provisions, often mirrored in article 8(2)(b) and (e),[146] derived from other instruments. One such example, derived from the 1954 Hague Convention on the Protection of Cultural Property,[147] finds its expression in article 8(2)(b)(ix) and (2)(e)(iv). Similarly, failure to observe the obligation on States Parties to the UN Convention on the Rights of the Child[148] not to conscript or enlist children under the age of 15 years is now a war crime by virtue of the inclusion of the obligation in article 8(2)(b)(xxvi) and (2)(e)(vii). Violations of the Convention on the Safety of United Nations and Associated Personnel[149] constitute war crimes on the basis of article 8(2)(b)(iii) and (2)(e)(iii) and the expanded list of sexual offences which can constitute crimes against humanity are basically replicated in the definition of war crimes in article 8(2)(b)(xxii) and (2)(e)(vi).
This approach of expanding the list of acts which can constitute war crimes within the subject-matter jurisdiction of the Court beyond the primary international humanitarian law treaties of Geneva and The Hague is a most significant development for the recognised corpus of war crimes and augurs well for future review conferences of States Parties to the Rome Statute which could well amend the Statute to include additional offences. The approach of mirroring the expanded list of war crimes in relation to both international and non-international armed conflicts is also a significant development because it reaffirms the trend towards a rejection of the maintenance of a distinction between international and non-international armed conflicts for the purposes of attributing individual criminal responsibility.
One of the most disappointing aspects of article 8 concerns its treatment of the use of prohibited weapons. While certain prohibited effects of the use of weapons are covered quite comprehensively in the definitions of war crimes,[150] the actual decision to deploy particular weapons is inconsistently and inadequately covered. In regulating the means and methods of warfare, international humanitarian law includes general prohibitions on the deployment of weapons, particularly the prohibition on the use of weapons which cause superfluous injury or unnecessary suffering, as well as specific prohibitions on the use of particular weapons. The provisions in articles 8(2)(b)(xvii)–(xx) are the only references to prohibited weapons in the definition of war crimes and are a poor reflection indeed of existing customary international law.
First, the explicit list of prohibited weapons only includes the use of poison and poisonous weapons; asphyxiating, poisonous and other gases; and expanding bullets — a list of prohibited weapons from the turn of the twentieth century that does not extend to include more recent comprehensive multilateral agreements prohibiting bacteriological (biological) weapons, chemical weapons, blinding laser weapons and anti-personnel landmines.
Secondly, the Statute does not criminalise violations of the general prohibition against the deployment of weapons which cause superfluous injury or unnecessary suffering. Instead, the Statute leaves open the possibility of States Parties adding to the list of specifically prohibited weapons at some future stage by amendment to the Statute. This possibility comes with explicit qualifications. According to article 8(2)(b)(xx), States Parties can add specific weapons to an annex to the Statute provided those weapons cause superfluous injury or unnecessary suffering (or are inherently indiscriminate) and are also the subject of a comprehensive prohibition.
Many states wanted an explicit reference to the use of nuclear weapons as a war crime — a position flatly rejected by all five permanent members of the UN Security Council. In fact, the five permanent members of the Security Council were so adamant about ensuring that the Court could not deal with the question of the use of nuclear weapons without their consent that they also insisted that there be no reference to a violation of the general prohibition on the causing of superfluous injury or unnecessary suffering constituting a war crime in and of itself.[151] Otherwise, it may be open to the Court to convict an individual of a war crime for the decision to deploy nuclear weapons.
The refusal of the five permanent members of the Security Council to include any provision which could apply to nuclear weapons ensured that the final provisions on prohibited weapons would also not include any reference to chemical and biological weapons. Some ‘non-aligned’ delegations insisted that all three categories of weapons of mass destruction should be considered equally in the Statute. Given the conclusion of the Biological Weapons Convention,[152] the Chemical Weapons Convention,[153] Protocol IV to the Certain Conventional Weapons Convention[154] and the so-called Ottawa Convention prohibiting anti-personnel landmines,[155] it is possible under the existing formula in article 8(2)(b)(xx) for States Parties to agree to expand the list of prohibited weapons at an early Review Conference. Although the provisions are sub-optimal to say the least, the possibility of improvement is important.
One issue that seems inexplicable, though, is the lack of any mirroring provision to article 8(2)(b)(xx) in article 8(2)(e) on non-international armed conflicts. The Rome Statute currently has an anomalous position whereby the use of certain weapons can constitute a war crime in the context of an international armed conflict but not in the context of an internal armed conflict. One hopes that this unfortunate and disappointing result can be rectified early in the life of the new Court.
Another unfortunate aspect of the Court’s jurisdictional competence in respect of war crimes is the capacity of States Parties to elect to exclude the Court from dealing with war crimes alleged to have been committed either on its territory or by any of its nationals — an ‘opting-out’ provision. Whereas in the case of both genocide and crimes against humanity the Court will exercise automatic jurisdiction over States Parties, article 124 encapsulates an exception from this general approach in respect of war crimes.
According to article 124, this ‘Transitional Provision’ will be the subject of discussion at the first Review Conference to be conducted seven years after the entry into force of the Statute. While it is possible that States Parties will agree to terminate the arrangement, they are not obliged to do so under the terms of the Statute. States Parties could, if they so wish, extend the exception for another defined period or even in perpetuity.
The international community has overcome seemingly insurmountable obstacles to secure consensus on a text establishing an ICC. The tensions between sovereignty and universality that form an inevitable part of international multilateral negotiations have produced a Statute reflecting the reality of political compromise. The restrictive regime of state consent required to activate the Court’s prosecutorial jurisdiction can be viewed against the significant progress made in developing the definitions of crimes — particularly the extension of war crimes to internal armed conflicts and the removal of the nexus with armed conflict for the commission of crimes against humanity. The provisions governing the Court’s complementary role with domestic justice systems may also yield unforeseen benefits. By linking the Court’s jurisdiction to circumstances where states are unwilling or unable to act, the Statute may provide a fresh and welcome impetus for states to review the adequacy of their existing domestic criminal enforcement mechanisms.
With the hard work of multilateral negotiation of the Statute now accomplished, the effectiveness of the Court in fulfilling its mandate lies largely with the international community itself. The absence of an international enforcement mechanism means that the ICC is dependent on the cooperation of states to ensure compliance with its orders. Further, there will be no accountability of perpetrators of heinous crimes (no matter how well drafted the Statute) without adequate resources to fund the Court and its activities. It is incumbent on the states which worked so hard to conclude the negotiations in Rome to maintain their commitment to the ideals of the Court by working assiduously towards their own and other states’ ratification of the Statute. The Court needs to be established expeditiously and with as close to universal support as possible.
Once the Statute enters into force and the institutional infrastructure of the Court is created, success will be dependent upon the political will of the international community to make the Court work. The most cleverly crafted treaties, the finest cities already host to other multilateral organisations, the most functional facilities, even the most outstanding professional staff, have never been sufficient in and of themselves to make new institutions effective. Adequate resources are obviously fundamental and the lack of them will inevitably have a debilitating effect. However, nothing will exacerbate atrophy like indifference on the part of the international community. There is a danger that, once the Court is established, some states will relax in a false sense of accomplishment — as if the creation of the institution is the end in itself. Kofi Annan’s desire that the Court constitute a ‘gift of hope to future generations, and a giant step forward in the march towards universal human rights and the rule of law’[156] will require the ongoing commitment of governments urged on by the global civil society so encouragingly modelled in Rome.
[*] LLB (Hons) (Tas), PhD (Monash); Foundation Australian Red Cross Professor of International Humanitarian Law and Associate Dean (Research), Faculty of Law, The University of Melbourne. He was a member of the Australian Government Delegation to the Diplomatic Conference to Establish an International Criminal Court in Rome.
[†] LLB (Hons) (Melb), BA (Hons) (Melb). Sue Robertson was an intern to the Australian Permanent Mission to the United Nations in New York whilst a student in the Faculty of Law at The University of Melbourne. In particular, she participated in the final Preparatory Committee meeting to establish an International Criminal Court. This paper reflects the personal opinions of the authors and does not necessarily represent the views of the Australian Government. The authors acknowledge the excellent editorial assistance of Jessica Howard in the preparation of this article.
[1] Kofi Annan, ‘Statement by the United Nations Secretary-General Kofi Annan at the Ceremony held at Campidoglio Celebrating the Adoption of the Statute of the International Criminal Court’ (18 July 1998) <http://www.un.org/icc/speeches/718sg.htm> .
[2] Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 37 ILM 999 (not yet in force) (‘Rome Statute’), adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court on 17 July 1998. The final vote recorded was 120 votes in favour, seven against (United States, Libya, Qatar, Iraq, Yemen, China and Israel) and 21 abstentions. As at 25 October 1999, there were 89 signatures and four ratifications.
[3] The term communal violence encompasses violence involving groups that define themselves by their differences of religion, ethnicity, language or race: Human Rights Watch, Slaughter among Neighbors: The Political Origins of Communal Violence (1995) 1.
[4] The inclusion of acts constituting war crimes in intrastate (that is, non-international) armed conflicts marks a broadening from international humanitarian law which historically required war crimes to be committed in an international armed conflict. See discussion of war crimes below Part IV(C).
[5] See Christopher Hall, ‘The First Proposal for a Permanent International Criminal Court’ (1998) 322 International Review of the Red Cross 57.
[6] Hague Convention for the Pacific Settlement of International Disputes, 29 July 1899, [1901] UKTS 9, [1901] Cmnd 798 (entered into force 4 September 1900).
[7] See, eg, M Cherif Bassiouni, ‘The Time has Come for an International Criminal Court’ (1991) 1 Indiana International and Comparative Law Review 1, 1–10; Benjamin Ferencz, ‘International Criminal Courts: The Legacy of Nuremberg’ (1998) 10 Pace International Law Review 203; Timothy L H McCormack, ‘From Sun Tzu to the Sixth Committee: The Evolution of an International Criminal Law Regime’ in Timothy L H McCormack and Gerry J Simpson (eds), The Law of War Crimes: National and International Approaches (1997) 31, 44.
[8] International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia, established pursuant to SC Res 827: Statute of the International Tribunal for the Former Yugoslavia, SC Res 827, 48 UN SCOR (3217th mtg), UN Doc S/Res/827 (1993); 32 ILM 1203.
[9] International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide in the Territory of Rwanda and Other Such Violations Committed in the Territory of Neighboring States, established pursuant to SC Res 955: Statute of the International Tribunal for Rwanda, SC Res 955, 49 UN SCOR (3452nd mtg), UN Doc S/Res/955 (1994); 33 ILM 1598.
[10] Some of these are exposed in Gerry J Simpson, ‘War Crimes: A Critical Introduction’ in Timothy L H McCormack and Gerry J Simpson (eds), The Law of War Crimes: National and International Approaches (1997) 1; M Cherif Bassiouni, Crimes Against Humanity in International Law (1992) 129–39.
[11] McCormack, ‘From Sun Tzu to the Sixth Committee’, above n 7, 55–63.
[13] Roger Clark, ‘Nuremberg and Tokyo in Contemporary Perspective’ in Timothy L H McCormack and Gerry J Simpson (eds), The Law of War Crimes: National and International Approaches (1997) 171.
[14] R v Bow Street Metropolitan Stipendiary Magistrate; Ex parte Pinochet Ugarte [1998] UKHL 41; [1998] 4 All ER 897 (‘Pinochet (No 1)’); R v Bow Street Metropolitan Stipendiary Magistrate; Ex parte Pinochet Ugarte (No 3) [1999] UKHL 17; [1999] 2 All ER 97 (‘Pinochet (No 3)’). The decision involved a determination of the validity of an extradition request by a Spanish court for Pinochet for alleged crimes committed during his period in office in Chile from 1973 to 1990.
[15] Pinochet (No 3) [1999] UKHL 17; [1999] 2 All ER 97, 113–14 (Lord Browne-Wilkinson), 147, 151–3 (Lord Hope), 160–3 (Lord Hutton), 174–7 (Lord Millett).
[16] United Nations, Report of the Group of Experts for Cambodia Pursuant to General Assembly Resolution 52/135, 18 February 1999, UN Doc A/53/850 and subsequent endorsement from the Special Representative of the Secretary-General: Thomas Hammarberg, Situation of Human Rights in Cambodia, Report of the Special Representative of the Secretary-General for Human Rights in Cambodia to the United Nations Commission on Human Rights, 26 February 1999, UN Doc E/CN.4/1999/101, Addendum. Although Prime Minister Hun Sen has rejected an exclusively international tribunal, talks between the UN and the Cambodian Government are exploring models for a hybrid international and Cambodian tribunal. See ‘Hope Fades for Joint UN-Cambodian Tribunal of the Khmer Rouge’ (20 September 1999) <http://cnn.com/
ASIANOW/southeast/9909/19/khmerrouge.ap>.
[17] SC Res 1264, 54 UN SCOR (4045th mtg), UN Doc S/RES/1264 (1999).
[18] UN Commission on Human Rights, Situation of Human Rights in East Timor, Res 1999/S-4/1 (adopted at its 4th Special Session, 27 September 1999), UN Doc E/CN.4/RES/1999/S-4/1 (1999). See also United Nations, High Commissioner for Human Rights Names International Inquiry Panel on East Timor, Press Release (15 October 1999) <http://www.unhchr.ch/huricane/
huricane.nsf/framepage/indonesia+pr?opendocument>.
[19] Rome Statute, above n 2, art 11(1) provides that ‘[t]he Court has jurisdiction only with respect to crimes committed after the entry into force of this Statute.’
[20] See Christopher Hall, ‘The First Two Sessions of the UN Preparatory Committee on the Establishment of an International Criminal Court’ (1997) 91 American Journal of International Law 177, 178; Mahnoush Arsanjani, ‘The Rome Statute of the International Criminal Court’ (1999) 93 American Journal of International Law 22.
[21] For a more detailed analysis of the implications arising from the Rome Statute’s approach to preconditions for the exercise of the jurisdiction of the Court, see Eve La Haye, ‘The Jurisdiction of the International Criminal Court: Controversies over the Preconditions for Exercising Its Jurisdiction’ (1999) 46 Netherlands International Law Review 1.
[22] Rome Statute, above n 2, art 13.
[23] UN Charter art 24(1) provides:
In order to ensure prompt and effective action by the United Nations, its Members confer on the Security Council primary responsibility for the maintenance of international peace and security, and agree that in carrying out its duties under this responsibility the Security Council acts on their behalf.
[24] For example, art 29 authorises the Security Council to establish ‘such subsidiary organs as it deems necessary for the performance of its functions.’ This was the provision relied upon to establish the two ad hoc Criminal Tribunals. See also UN Charter arts 39, 41.
[25] UN Charter art 42.
[26] UN Charter art 27(3).
[27] Draft Statute for an International Criminal Court art 23(3) provided that: ‘No prosecution may be commenced under this Statute arising from a situation which is being dealt with by the Security Council as a threat to or breach of the peace or an act of aggression under Chapter VII of the Charter, unless the Security Council otherwise decides’: Report of the International Law Commission on the Work of Its Forty-Sixth Session, 49 UN GAOR, UN Doc A/49/10, Supplement No f10 (1994) (containing the original Revised Draft Statute). This was subsequently revised twice: see 49 UN GAOR, UN Doc A/CN.4/L.491/Rev.2 (1994) (‘Draft Statute’). See also Andrew Amigo, ‘The International Criminal Court and the Triggering of Prosecutorial Action’, A Paper of the International Human Rights/Humanitarian Law Project of Suffolk University Law School (no date) 2–3 (copy on file with authors). The exception to these entrenched positions was the United Kingdom, which demonstrated a greater flexibility than the other permanent members, and gave its support to the compromise proposal of Singapore discussed below.
[28] The like-minded group supported key issues such as a Court with a Prosecutor empowered to initiate independent investigations and whose decisions were independent of Security Council veto. The like minded group included the following states throughout the Rome Diplomatic Conference: Argentina, Australia, Austria, Belgium, Brazil, Brunei, Canada, Chile, Costa Rica, Croatia, the Czech Republic, Denmark, Egypt, Finland, Ghana, Greece, Hungary, Ireland, Italy, Latvia, Lesotho, Liechtenstein, Lithuania, Malawi, the Netherlands, New Zealand, Norway, Philippines, Portugal, Republic of Korea, Samoa, Singapore, Slovenia, Solomon Islands, South Africa, Spain, Sweden, Switzerland, Trinidad & Tobago, Uruguay, Venezuela and the United Kingdom.
[29] Amigo, above n 27, 7, states that in 1997 the Security Council retained on its active list matters in at least 25 countries or regions.
[30] Rome Statute, above n 2, art 16 provides:
No investigation or prosecution may be commenced or proceeded with under this Statute for a period of 12 months after the Security Council, in a resolution adopted under Chapter VII of the Charter of the United Nations, has requested the Court to that effect; that request may be renewed by the Council under the same conditions.
[31] Ibid art 13(a).
[32] Amnesty International, The International Criminal Court: Making the Right Choices — Part 1 (1997).
[33] Rome Statute, above n 2, art 15.
[34] Ibid art 15(2).
[35] Ibid art 15(3).
[36] Ibid art 15(4).
[37] Ibid art 12(2).
[38] Ibid art 12(3).
[39] For example, a proposal put forward by the delegation from Korea allowed prosecutions to go forward if one of the following four states had ratified the treaty or otherwise extended ad hoc consent: the state where the crime took place; the state of the accused person’s nationality; the state of the victim’s nationality or the state with custody of the accused.
[40] See Human Rights Watch, ‘Text Analysis: International Criminal Court Treaty’ (17 July 1998) <http://www.hrw.org/hrw/press98/july/icc-anly.htm> Lawyers Committee for Human Rights, ‘Establishing an International Criminal Court: Major Unresolved Issues in the Draft Statute’ (1998) 1(1) International Criminal Court Briefing Series <http://www.lchr.org/icc/pap1rev5.
htm>. The authors provide the example of Pol Pot and Idi Amin as perpetrators of crimes against their own populations.
[41] Ibid.
[42] David Scheffer, ‘The United States and the International Criminal Court’ (1999) 93 American Journal of International Law 12, 18.
[43] Some delegations and non-government organisations such as Human Rights Watch and the Lawyers Committee for Human Rights argued that the principle of universal jurisdiction should apply in the Statute. Under the principle of universal jurisdiction any state can prosecute the perpetrators of the core crimes without the connection of territory or nationality: see Lawyers Committee for Human Rights, ‘The Rome Treaty for an International Criminal Court’ (1998) 2(1) International Criminal Court Briefing Series <http://www.lchr.org/icc/papv2n1.htm> .
[44] Scheffer, above n 42, 19.
[45] Draft Statute, above n 27.
[46] Rome Statute, above n 2, art 17, having regard to art 1 and the statement in the preamble para 10: ‘Emphasizing that the International Criminal Court established under this Statute shall be complementary to national criminal jurisdictions’.
[47] Ibid art 17(1)(a) and (b).
[48] For a more detailed discussion of this possibility see Katherine Doherty and Timothy L H McCormack, ‘Complementarity as a Catalyst for Comprehensive Domestic Penal Legislation’ (1999) 6 University of California Davis Journal of International Law and Policy (forthcoming).
[49] Professor Dugard raises this possibility in relation to amnesty grants by the South African Truth and Reconciliation Commission and suggests that insufficient attention has been paid to distinguishing different types of amnesties: see John Dugard, ‘South Africa’s Truth and Reconciliation Process and International Humanitarian Law’ (1999) 2 Yearbook of International Humanitarian Law (forthcoming).
[50] Rome Statute, above n 2, art 5.
[51] Ibid art 5(2).
[52] The significance of human rights law is exemplified in the Rome Statute, ibid, art 36(3)(b)(ii) which provides that in relation to the qualifications of judges ‘[e]very candidate for election to the Court shall: Have established competence in relevant areas of international law such as international humanitarian law and the law of human rights’.
[53] For example, the Statute empowers the Court to order reparation be paid to the victims of crime: ibid art 75. Article 43(6) obliges the Registrar of the Court to set up a Victims and Witnesses Unit within the Registry of the Court to provide security protection and specialist counselling for trauma victims.
[54] Rosalyn Higgins, Problems and Process: International Law and How We Use It (1994) 95.
[55] A coalition of non-government organisations, including the Children’s Caucus and the United Nations Fund for Children, successfully lobbied delegates for two main objectives in relation to children’s human rights. First, limiting the Court’s jurisdiction to persons over 18 years: see Rome Statute, above n 2, art 26; and second, the classification as a war crime of forcing children under the age of 15 to take part in hostilities in either an international or internal armed conflict: see art 8(2)(e)(vii) and (8)(2)(b)(xxvi).
[56] Ibid art 11(1).
[57] Convention on the Prevention and Punishment of the Crime of Genocide, opened for signature 9 December 1948, 78 UNTS 277 (entered into force 12 January 1951) (‘Genocide Convention’). As at 5 May 1999, there were 129 States Parties.
[58] As one commentator observed, ‘[i]n contrast to genocide, for which there is a widely accepted treaty definition reflecting customary law that has been unchanged for half a century, the concept of crimes against humanity has evolved considerably since its first treaty definition in the Nuremberg Charter’: Christopher Hall, ‘The Third and Fourth Sessions of the UN Preparatory Committee on the Establishment of an International Criminal Court’ (1998) 92 American Journal of International Law 124, 126.
[59] The Lawyers Committee for Human Rights observed that ‘[w]hile an expansion of the definition of genocide to include social and political groups as targets of the crime as has been suggested by some in the Preparatory Committee, would be desirable, it would most likely delay the negotiating process too long to justify such effort’: Lawyers Committee for Human Rights, ‘Establishing an International Criminal Court’, above n 40.
[60] There is widespread agreement that the prohibition of genocide is a norm of jus cogens. The rules of jus cogens are ‘rules of customary law which cannot be set aside by treaty or acquiescence but only by the formation of a subsequent customary rule of contrary effect’: Ian Brownlie, Principles of Public International Law (4th ed, 1990) 513. Any attempt to derogate from a principle of jus cogens via legislative or executive action, or by treaty will be void: see Theodor Meron, ‘On a Hierarchy of International Human Rights’ (1986) 80 American Journal of International Law 1, 19–20. See also Vienna Convention on the Law of Treaties, opened for signature 23 May 1969, 1155 UNTS 331, 8 ILM 679, art 52 (entered into force 27 January 1980).
[61] See Statute of the International Tribunal for the Former Yugoslavia, above n 8, art 4; Statute of the International Tribunal for Rwanda, above n 9, art 2.
[62] Genocide Convention, above n 57, art 6 (emphasis added).
[63] Although both the Statute of the International Tribunal for Rwanda, above n 9, art 2 and the Statute of the International Tribunal for the Former Yugoslavia, above n 8, art 4 established a precedent for the international prosecution of genocide, the establishment of a treaty-based, permanent ICC addresses some of the limitations of ad hoc tribunals, particularly accusations of political bias levelled at a judicial body created by the political whims of the Security Council.
[64] Opponents of such a provision ultimately agreed to support a provision for an international criminal court on the ground that the Court had been placed on a ‘hypothetical, facultative basis and did not compel parties to accept its jurisdiction’: Matthew Lippmann, ‘The Drafting of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide’ (1985) 3 Boston University International Law Journal 1, 52–3. See also Beth Van Schaack, ‘The Crime of Political Genocide: Repairing the Genocide Convention’s Blind Spot’ (1997) 106 Yale Law Journal 2259, 2262–9 where the author observes that the final text of the Genocide Convention replaced the concept of universal jurisdiction with the principle of territorial jurisdiction, with the possibility of the establishment of a future court with international jurisdiction.
[65] H Lauterpacht (ed), International Law: A Treatise by L Oppenheim (8th ed, 1955) 751.
[66] Genocide Convention, above n 57, art 2.
[67] See, eg, Lippmann, above n 64, 60–5; Van Schaack, above n 64, 2262–9; Kurt Glaser and Stefan Possony, Victims of Politics: The State of Human Rights (1979).
[68] A leading treatise on international law observes that ‘the Convention amounts to a registration of protest against past misdeeds of individual or collective savagery rather than to an effective instrument of their prevention or repression’: Lauterpacht, above n 65, 751.
[69] For example, Van Schaack observes that one of the motivating factors in the drafting committee excluding protection to political groups was to avoid inculpating Stalin’s politically motivated purges of the petty bourgeoisie during the forced collectivisations of agriculture in the 1920s and 1930s: Van Schaak, above n 64, 2268; see also Lippmann’s summary of the drafting committee debates in 1948: Lippmann, above n 64, 30, 41–3.
[70] See Van Schaack, above n 64, 2261 and the discussion at 2269–72 where the author notes that whilst the extermination of ethnic minorities such as the Vietnamese and Chaim constitutes genocide, the extermination of other groups such as former Lon Nol supporters and Khmer Rouge dissidents who constitute political opponents are not covered by the Genocide Convention.
[71] Prosecutor v Akayesu, Case No ICTR-96-4-T (2 September 1998); 37 ILM 1401 (‘Akayesu’).
[72] Ibid 1407.
[73] Ibid 1408–10 (Factual Findings on General Allegations, paras 5–11 of the Indictment).
[74] [1997] HCA 27; (1997) 190 CLR 1 (‘Kruger’).
[75] Aboriginals Ordinance 1918 (NT) s 16.
[76] The statement of claim pleaded invalidity on a number of grounds which are beyond the scope of this article, but included that the Ordinance breached requirements of immunity from detention without due process of law, contravened the implied constitutional rights of equality, freedom of movement and association and denied the right to freedom of religion as conferred by s 116 of the Australian Constitution.
[77] However, in the end result, Gaudron J held that the Ordinance was invalid on other grounds because it deprived the plaintiffs of the right to free movement and association implied in the Constitution: Kruger [1997] HCA 27; (1997) 190 CLR 1, 141. Toohey J also dissented and held that the Ordinance on its face breached the plaintiffs’ constitutional rights to equal treatment: at 97–8.
[78] See Aborginals Ordinance 1918 (NT) s 6(1).
[79] Kruger [1997] HCA 27; (1997) 190 CLR 1, 37 (Brennan CJ), 70 (Dawson J), 159–60 (Gummow J).
[80] Ibid 70 (Dawson J): ‘There is nothing in the 1918 Ordinance, even if the acts authorised by it otherwise fell within the definition of genocide, which authorises acts committed with intent to destroy in whole or part any Aboriginal group’ (emphasis added).
[81] See Matthew Storey, ‘Kruger v The Commonwealth: Does Genocide Require Malice?’ [1998] UNSWLawJl 17; (1998) 21 University of New South Wales Law Journal 224, 228, where the author contends that genocide does not require malice and can misguidedly be committed in the interests of a protected population. Storey suggests that upon viewing the policy documentation relating to assimilation, beneficial motive can be seen to coexist with genocidal intent, for the policy was premised on the assumption that it was in the interests of half-caste children to be denied their Aboriginality: at 230.
[82] This was alluded to by Gaudron J in Kruger [1997] HCA 27; (1997) 190 CLR 1, 107: ‘[S]ubject to considerations of a time bar, if acts were committed with the intention of destroying the plaintiff’s racial group, they may be the subject of an action for damages whether or not the Ordinance was valid.’ Indeed, a civil claim was recently heard in the Federal Court where members of the ‘Stolen Generation’ sought damages for being forcibly removed from their families as children: Cubillo v Commonwealth of Australia [1999] FCA 518 (Unreported, O’Loughlin J, 30 April 1999). The plaintiffs argued that federal authorities misused the Ordinance: David Nason, ‘Stolen Children to Have Their Day in Court’, The Australian (Sydney), 1 March 1999, 5.
[83] The definition of crimes against humanity contained in the Rome Statute, above n 2, art 7, covers a wide range of genocide-like acts, subject to an act being committed as part of widespread or systematic attack directed at a civilian population: murder, extermination, torture, deportation or forced transfer of populations, persecution of any group on grounds including politics, race, nationality, ethnicity, culture, religion and gender in connection with any other crime within the jurisdiction of the Court. Establishing a crime against humanity does not require the threshold of ‘intent to destroy’ nor is it required to be directed against a particular national, ethnic or racial group. See discussion on crimes against humanity below Part IV(B).
[84] The provision on crimes against humanity in the negotiating text of the Rome Statute appeared as art 8 after war crimes in art 7. In Rome, this order was reversed following agreement on the definition of ‘forced pregnancy’ which can constitute either a crime against humanity or a war crime. Because the clarification of the agreed meaning of the term appears in para 2(f) of the provision on crimes against humanity, it was agreed that this provision should precede the provision on war crimes so that the later reference to the same term will be understood to have the same meaning as that which now appears in art 7(2)(f).
[85] See Philippe Kirsch and John Holmes, ‘The Rome Conference on an International Criminal Court: The Negotiating Process’ (1999) 93 American Journal of International Law 2, 11. The authors comment that:
The statute is not a perfect instrument; no internationally negotiated instrument can be. It includes technical solutions, awkward formulations and difficult compromises that satisfied no one. But it is a balanced instrument, furnished with enough strength to ensure the effective functioning of the court and sufficient safeguards to foster broad support among states.
[86] Charter of International Military Tribunal Adopted by the Big Four Powers, 8 August 1945, 82 UNTS 279, art 6(c) (‘Nuremberg Charter’).
[87] Bassiouni, Crimes Against Humanity, above n 10, 165–75.
[88] Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808 (1993), UN Doc S/25704 (1993) [34]; 32 ILM 1159, 1170.
[89] Statute of the International Tribunal for the Former Yugoslavia, above n 8, art 5.
[90] See Prosecutor v Tadic, Case No IT-94-1-T (7 May 1997); 36 ILM 913 (‘Tadic’) in which the defendant was acquitted of the charges of grave breaches of the Geneva Conventions, not because there was no armed conflict, but because the victims were deemed not to be ‘protected persons’ within the meaning of that term. Tadic was, however, convicted, for the same acts, of crimes against humanity.
[91] Ibid.
[92] See also Theodor Meron, ‘International Criminalization of Internal Atrocities’ (1995) 89 American Journal of International Law 554, 557.
[93] Rome Statute, above n 2, art 7(1).
[94] Ibid preamble.
[95] See Darryl Robinson, ‘Defining “Crimes Against Humanity” at the Rome Conference’ (1999) 93 American Journal of International Law 43, 47.
[96] Statute of the International Tribunal for Rwanda, above n 9, art 3: ‘The International Tribunal for Rwanda shall have power to prosecute persons responsible for the following crimes when committed as part of a widespread or systematic attack against any civilian population on national, political, ethnic, racial or religious grounds’.
[97] See Tadic, Case No IT-94-1-T (7 May 1997) [645]–[648].
[98] Rome Statute, above n 2, art 7(2)(a).
[99] See, eg, Lawyers Committee for Human Rights, ‘The Rome Treaty for an International Criminal Court’, above n 43.
[100] International Convention on the Suppression and Punishment of the Crime of Apartheid, opened for signature 30 November 1973, 1015 UNTS 243, 13 ILM 50, art 1 (entered into force 18 July 1976) (‘Apartheid Convention’). As at 5 May 1999 there were 101 States Parties. See United Nations Declaration on the Protection of All Persons from Enforced Disappearance, GA Res 47/133 (18 December 1992), UN Doc A/RES/47/133; and International Law Commission, Titles and Texts of Articles on the Draft Code of Crimes Against the Peace and Security of Mankind Adopted by the International Law Commission at Its Forty-Eighth Session, UN Doc A/CN.4/L.532 (1996).
[101] Apartheid Convention, above n 100, art 2 enumerates a list of inhumane acts any of which must have been committed ‘for the purpose of establishing and maintaining domination by one racial group of persons over any other racial group of persons and systematically oppressing them’. By contrast, the Rome Statute, above n 2, art 7(2)(h) defines the crime of apartheid by reference back to the enumerated list of inhumane acts in art 7(1) (ie a different list of acts to those included in art 2 of the Apartheid Convention) ‘committed in the context of an institutionalized regime of systematic oppression and domination by one racial group over any other racial group or groups and committed with the intention of maintaining that regime.’
[102] Convention Against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85, 23 ILM 1027 (1984) with changes at 24 ILM 535 (1985) (entered into force 26 June 1987) (‘Torture Convention’). As at June 1999 there were 117 States Parties. The Convention required torture to be ‘inflicted by or at the instigation of or with consent or acquiescence of a public official or other person acting in an official capacity.’
[103] Statute of the International Tribunal for the Former Yugoslavia, above n 8, art 5(g) and Statute of the International Tribunal for Rwanda, above n 9, art 3(g) only include rape, and Common Article 3(1)(c) of the Geneva Conventions prohibits only ‘outrages upon personal dignity, in particular humiliating and degrading treatment.’ The new list in art 7(1)(g) of the Rome Statute, above n 2, is much more extensive. For the Geneva Conventions see: Geneva Convention for the Amelioration of the Condition of the Wounded and the Sick in Armed Forces in the Field, opened for signature 12 August 1949, 75 UNTS 31 (entered into force 21 October 1950) (‘First Geneva Convention’); Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, opened for signature 12 August 1949, 75 UNTS 85 (entered into force 21 October 1950) (‘Second Geneva Convention’); Geneva Convention Relative to the Treatment of Prisoners of War, opened for signature 12 August 1949, 75 UNTS 135 (entered into force 21 October 1950) (‘Third Geneva Convention’); Geneva Convention Relative to the Protection of Civilian Persons in Time of War, opened for signature 12 August 1949, 75 UNTS 287 (entered into force 21 October 1950) (‘Fourth Geneva Convention’). As at 5 May 1999, there were 188 States Parties to these four conventions.
[104] Rome Statute, above n 2, art 7(1)(g).
[105] Ibid art 8(2)(b)(xxii).
[106] Ibid art 8(2)(e)(vi).
[107] The inclusion in the Statute of offences such as persecution on the basis of gender and forced pregnancy were stridently opposed during negotiations by the Preparatory Committee, notably from the Holy See (which holds ‘observer’ status at the United Nations), and the Arab League of Nations. Delegations from Ireland and the Holy See opposed the inclusion of ‘forced pregnancy’ as a crime against humanity, concerned that the definition could affect the legitimacy of national anti-abortion legislation. This concern was answered by agreement upon a narrow definition of ‘forced pregnancy’ to mean ‘the unlawful confinement, of a woman made pregnant, with the intent of affecting the ethnic composition of any population or carrying out grave violations of international law.’ The definition specifically states that it does not affect national laws relating to pregnancy: ibid art 7(2)(f). ‘Persecution’ is defined as the ‘intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity’: art 7(2)(g).
[108] Rome Statute, above n 2, art 8(2)(a)(ii) and (iii). See Christopher Hall, ‘The Fifth Session of the UN Preparatory Committee on the Establishment of an International Criminal Court’ (1998) 92 American Journal of International Law 331, 334.
[109] Radhika Coomaraswamy, Preliminary Report, submitted by the Special Rapporteur on Violence Against Women, Its Causes and Consequences to the UN Commission on Human Rights, UN Doc E/CN.4/1995/42 (1994) [288], [290].
[110] See UN SC Res 798, 47 UN SCOR (3150th mtg), UN Doc S/RES/798 (1992).
[111] As part of its response to the Bosnian conflict, the Security Council established a Commission of Experts (Yugoslav Commission) to investigate violations of international humanitarian law committed in the former Yugoslavia. In its final report the Commission concluded that whilst all sides in the conflict had perpetuated sexual violence, the vast majority of the victims were Bosnian Muslims and the vast majority of perpetrators were Bosnian Serbs: United Nations, Final Report of the Commission of Experts Established Pursuant to Security Council Resolution 780, UN Doc S/1994/674, Annex IX (1992) [4(a)], [10], [21] and [26].
[112] See generally Christine Chinkin, ‘Women, the Forgotten Victims of Armed Conflict?’ in Helen Durham and Timothy L H McCormack (eds), The Changing Face of Conflict and the Efficacy of International Humanitarian Law (1999) 23; Judith Gardam, ‘Women and the Law of Armed Conflict: Why the Silence?’ (1997) 46 International and Comparative Law Quarterly 55; Theodor Meron, ‘Rape as a Crime under International Humanitarian Law’ (1993) 87 American Journal of International Law 424, 425.
[113] See Human Rights Watch, Shattered Lives: Sexual Violence During the Rwandan Genocide and Its Aftermath (1996); Human Rights Watch, World Report (1998) 392–5.
[114] Akayesu, Case No ICTR-96-4-T (2 September 1998). Akayesu was the mayor of the Taba commune in Rwanda where a large number of Tutsi were killed between April and June 1994. He was convicted of one count of genocide and six counts of crimes against humanity including extermination, murder, torture and rape.
[115] Prosecutor v Delalic, Case No IT-96-21-T (16 November 1998); (1999) 38 ILM 57 (‘Celebici’) (named after the prison camp which housed members of the Serb population during the conflict in Bosnia-Herzegovina); Prosecutor v Furundzija, Case No IT-95-17/1-T (10 December 1998); (1999) 38 ILM 317 (‘Furundzija’). Furundzija was the commander of a military unit attached to the Croatian Defence Council. He was indicted and convicted of two counts of violations of the laws or customs of war, being torture and outrages upon personal dignity and rape. Furundzija was present and conducting an interrogation of a civilian Muslim woman in conjunction with another solider who raped and sexually assaulted her during the interrogation. See also Tadic, Case No IT-94-1-T (7 May 1997). Tadic was a Serb alleged to have participated in the killing and ‘maltreatment’ of Bosnian Muslims and Croats within and outside a number of prison camps: see discussion in Kelly Askin, ‘Sexual Violence in Decisions and Indictments of the Yugoslav and Rwandan Tribunals: Current Status’ (1999) 93 American Journal of International Law 97, 100–5.
[116] For a detailed overview see Askin, above n 115.
[117] The Chamber in Akayesu, Case No ICTR-96-4-T (2 September 1998) [597] stated that rape was a form of aggression the central elements of which could not ‘be captured in a mechanical description of objects or body parts.’
[118] Ibid [597]–[598]: ‘The Chamber defines rape as a physical invasion of a sexual nature, committed on a person under circumstances which are coercive. Sexual violence which includes rape, is considered to be any act of a sexual nature which is committed under circumstances which are coercive.’ This reasoning was adopted by the ICTY in Celebici, Case No IT-96-21-T (16 November 1998) [479]. See also Askin, above n 115, 109–10.
[119] See Furundzija, Case No IT-95-17/1-T (10 December 1998) [163], where the Chamber acknowledged a growing body of international jurisprudence that evinces a strong momentum to ‘addressing, through legal process, the use of rape in the course of detention and interrogation as a means of torture and, therefore, as a violation of international law.’
[120] Akayesu, Case No ICTR-96-4-T (2 September 1998) [733]–[734], where the Chamber stated that rape crimes
constitute genocide in the same way as any other act as long as they were committed with the specific intent to destroy, in whole or part, a particular group, targeted as such ... Sexual violence was an integral part of the process of destruction, specifically targeting Tutsi women and specifically contributing to their destruction and the destruction of the Tutsi group as a whole.
[121] Akayesu, Case No ICTR-96-4-T (2 September 1998) [597].
[122] The Chamber in Celebici, Case No IT-96-21-T (16 November 1998) [941], [963] held that the sexual violence that occurred in the context of that case was inflicted not only for the prohibited purpose of punishing the victims and obtaining information as a part of interrogation, but also because they were women. As such, the infliction of violence was held to be discriminatory and this constituted a prohibited purpose for the purpose of the definition of torture. See also Committee on the Elimination of Discrimination Against Women, General Recommendation 12, Violence Against Women, UN Doc HRI/GEN/1/REV.1 AT 78 (1994). The Committee recognised that gender-based violence is a form of discrimination which impairs women’s enjoyment of human rights and fundamental freedoms.
[123] Celebici, Case No IT-96-21-T (16 November 1998) [494]. The Tribunal stated the elements of torture as follows (emphasis added):
This would appear to mean that where it can be shown that violence was perpetrated by an ‘official’ against a woman, because she is a woman (which is inevitably the case when it comes to rape) prosecution for torture may be possible.
[124] On the issue of the limitations of the definition of torture see, eg, Catharine MacKinnon, ‘On Torture: A Feminist Perspective on Human Rights’ in Kathleen Mahoney and Paul Mahoney (eds), Human Rights in the Twenty-First Century: A Global Challenge (1993) 21; Katarina Tomasevski, Women and Human Rights (1993); Hilary Charlesworth, Christine Chinkin and Shelley Wright, ‘Feminist Approaches to International Law’ (1991) 85 American Journal of International Law 613, 627–9; Rhonda Copelon, ‘Recognizing the Egregious in the Everyday: Domestic Violence as Torture’ (1994) 25 Columbia Human Rights Law Review 291; Evelyn Aswad, ‘Notes: Torture by Means of Rape’ (1996) 84 Georgetown Law Journal 1913.
[125] See Akayesu, Case No ICTR-96-4-T (2 September 1998) [708]. Despite the fact that Akayesu was not alleged to have committed any acts of sexual violence himself, his physical presence, attitude and utterances were held to constitute tacit encouragement of the rapes that were committed. See also Furundzija, Case No IT-95-17/1-T (10 December 1998) [267], [274], where Furundzija was held criminally liable as a co-perpetrator of torture and for aiding and abetting rape through his continued interrogation of the victim as the rapes were taking place. Article 7(1) of the Statute of the International Tribunal for the Former Yugoslavia, above n 8 (and art 6 of the Statute of the International Tribunal for Rwanda, above n 9) extends direct criminal responsibility beyond those who directly commit the crime, to those who plan, instigate or aid and abet the crime, by assisting or providing encouragement or ‘moral support which has a substantial effect on the perpetration of the crime’. This must be combined with a mens rea that the acts ‘assist in the commission of the offence’: Furundzija, Case No IT-95-17/1-T (10 December 1998) [274]. See also the discussion in the judgment of the ICTY in Tadic, Case No IT-94-1-T (7 May 1997) [666], [689]; Askin, above n 115, 105.
[126] For text of the indictment, see Tadic, Case No IT-94-1-T (7 May 1997) [1]–[12].
[127] The Coalition consists of more than 100 organisations and is coordinated by the International Centre for Human Rights and Democratic Development in Montreal, Canada.
[128] Coalition for Women’s Human Rights in Conflict Situations, Respecting Amendment of the Indictment and Supplementation of the Evidence to Ensure the Prosecution of Rape and Other Sexual Violence Within the Competence of the Tribunal, amicus curiae brief regarding rape in Rwanda, Prosecutor v Akayesu, May 1997, <http://www.hri.ca/doccentre/violence/amicus-brief.
shtml>.
[129] Indeed, the NGO Coalition for an International Criminal Court, which consisted of 316 organisations, played a crucial role during drafting sessions for the Statute. Groups effectively lobbied governments on issues such as the rights of children, women and victims, definitions of crimes and rules of procedure for the Court. The General Assembly acknowledged the important role of NGOs in the drafting of the Statute in GA Res 52/160, 52 UN GAOR (72nd plen mtg), UN Doc A/52/49 (1997). This resolution effectively gave accredited NGOs the same consultative status they enjoy with the Economic and Social Council of the United Nations (ECOSOC). Consultative status permits NGOs to attend meetings, gain access to documents and the opportunity to deliver oral and written statements. However, in practice, the resources available to NGOs are limited and some non-government organisations complained during the Rome Conference that their lack of access to meetings and poor facilities restricted their ability to lobby effectively.
[130] See Rome Statute, above n 2, art 43(6).
[131] Nuremberg Charter, above n 86, art 6(c).
[132] Statute of the International Tribunal for Rwanda, above n 9, art 3.
[133] Rome Statute, above n 2, art 7(1)(h).
[134] See Robinson, above n 95, 54.
[135] Rome Statute, above n 2, art 7(1)(k).
[136] Bassiouni, Crimes Against Humanity, above n 10, 320.
[137] Draft Statute, above n 27.
[138] Geneva Conventions, above n 103. See also the two Additional Protocols of 1977: Protocol Additional to the Geneva Convention of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflict, opened for signature 12 December 1977, 1125 UNTS 3, 16 ILM 1391 (entered into force 7 December 1978) (‘Additional Protocol I’). As at 28 October 1998, there were 152 States Parties; Protocol Additional to the Geneva Convention of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts, opened for signature 12 December 1977, 1125 UNTS 609, 16 ILM 1442 (entered into force 7 December 1978) (‘Additional Protocol II’). As at 5 May 1999, there were 144 States Parties.
[139] Rome Statute, above n 2, art 8(1) (emphasis added).
[140] See Arsanjani, above n 20, 33.
[141] Statute of the International Tribunal for Rwanda, above n 9, art 4 allows prosecution for serious violations of Common Article 3 of the Geneva Conventions and Additional Protocol II, above n 138. The decision of the UN Security Council to allow for the prosecution of war crimes in the context of the Rwandan conflict — a non-international armed conflict — was an important step in overcoming the conventional distinctions between international and non-international armed conflicts.
[142] See Tadic, Case No IT-94-1-T (7 May 1997) [568], where the majority of the Appeals Chamber found that all serious violations of international humanitarian law except for grave breaches of the Geneva Conventions are applicable in both international and non-international armed conflicts. See also Celebici, Case No IT-96-21-T (16 November 1998) [202]; Meron, ‘International Criminalization’, above n 92; Theodor Meron, ‘The Continuing Role of Custom in the Formation of International Humanitarian Law’ (1996) 90 American Journal of International Law 238, 242–4.
[143] Additional Protocol II, above n 138, arts 2, 12, 13–14, 16–17.
[144] Hague Convention for the Pacific Settlement of International Disputes, 29 July 1899, [1901] UKTS 9, [1901] Cmnd 798 (entered into force 4 September 1900).
[145] Hague Convention for the Pacific Settlement of International Disputes, 18 October 1907, [1907] UKTS 6, [1907] Cmnd 4575 (entered into force 26 January 1910).
[146] That is, in both international and non-international armed conflicts.
[147] Convention for the Protection of Cultural Property in the Event of Armed Conflict, opened for signature 14 May 1954, 249 UNTS 215 (entered into force 7 August 1956).
[148] Convention on the Rights of the Child, opened for signature 20 November 1989, GA Res 44/25, 44 UN GAOR (Supp 49), UN Doc A/44/25 (1989), 28 ILM 1448 (entered into force 2 September 1990).
[149] United Nations Convention on the Safety of United Nations and Associated Personnel, opened for signature 15 December 1994, UN Doc A/49/742 (1994), 34 ILM 482 (1995) (not yet in force). There are presently nine parties. Twenty-two parties are required for the Convention to enter into force.
[150] For example, in the prohibitions on intentional attacks on civilian populations, the Red Cross or Red Crescent protective emblems, UN and associated personnel, or on objects of cultural or other recognised significance.
[151] See Arsanjani, above n 20, 34–5.
[152] Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxic Weapons and on Their Destruction, opened for signature 10 April 1972, 1015 UNTS 163 (entered into force 26 March 1975).
[153] Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction, opened for signature 13 January 1993, 32 ILM 800 (entered into force 29 April 1997).
[154] Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May be Deemed to be Excessively Injurious or Have Indiscriminate Effect, opened for signature 27 October 1980, 19 ILM 1523 (entered into force 2 December 1983); Additional Protocol to the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May be Deemed to be Excessively Injurious or Have Indiscriminate Effect (Protocol IV), opened for signature 13 October 1995, [1998] ATS No 8, 35 ILM 1218 (1996) (entered into force 30 July 1998).
[155] Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on Their Destruction, [1999] ATS No 3, 36 ILM 1507, opened for signature 3 December 1997 (entered into force 1 March 1999).
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