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ANDREAS SCHLOENHARDT[*]
On 1 July 2002, the International Criminal Court (ICC) came into existence, marking the end of over fifty years of deliberation concerning the creation of a permanent global court to prosecute particularly heinous crimes of international significance. The Rome Statute of the International Criminal Court[1] now has 139 Signatories,[2] with further countries expected to accede.
The creation of the ICC is a milestone towards building a global criminal justice system. Like no other institution, the ICC has the ability to bring to justice those people accused of the most serious criminal offences. The perpetrators of these crimes, and their accomplices, will no longer be able to escape prosecution and extradition by hiding behind national legal obstacles which prevent their trial. ‘In the prospect of an international criminal court’, said UN Secretary-General Kofi Annan,
lies the promise of universal justice. That is the simple and soaring hope of this vision. We are close to its realisation. We will do our part to see it through till the end. We ask you … to do yours in our struggle to ensure that no ruler, no State, no junta and no army anywhere can abuse human rights with impunity. Only then will the innocents of distant wars and conflicts know that they, too, may sleep under the cover of justice; that they, too, have rights, and that those who violate those rights will be punished.[3]
Unfortunately – despite early attempts to include some of them – the great majority of transnational organised crimes are outside the jurisdiction of the International Criminal Court. Attempts to include crimes such as drug trafficking in the ICC Statute were met by great opposition, so that the final text of the ICC Statute restricts the Court’s jurisdiction under article 5 to only three-and-a-half crimes: genocide, article 6; crimes against humanity, article 7; war crimes, article 9; and the yet to be defined and finalised crime of aggression.
Despite the strict limitation of the ICC’s jurisdiction, the creation of the Court has generated the idea, and perhaps the ambition, to strengthen the universal criminalisation of transnational organised crimes by allowing their prosecution through an international authority, especially in instances when national agencies do not have the ability, capacity, or political will to prosecute or extradite alleged offenders. There is some debate in judicial and academic circles as to whether the existing offences under the ICC Statute encompass certain transnational organised crimes, and whether the Statute should be expanded to include crimes that have been recognised in international treaties. This debate, and its evolution, are the subject of this article.
While the treaties on transnational organised crime,[4] drug trafficking,[5] migrant smuggling,[6] trafficking in persons,[7] arms smuggling,[8] et cetera have created a system for Signatories to deal with alleged perpetrators by either prosecuting or extraditing them, perhaps the greatest failure of the existing regime is that it leaves enforcement, prosecution and punishment of the offences to individual nations.
The current system of domestic and international law on transnational organised crime leaves too many loopholes for criminals; it allows for too many concessions which can be made by Signatories; and it has in many instances failed to bring the principal organisers of global criminal operations to justice. The current system has failed to establish a mechanism that ensures that suspected offenders are indeed arrested, properly charged and investigated, and prosecuted and punished fairly and adequately.[9]
For example, although countries have multiple tools, both multilateral and bilateral, to seek extradition and/or prosecution of persons engaged in transnational organised crime, the same range of tools, along with many national provisions, allow countries to create great obstacles to the effective and efficient prosecution of offenders. Provisions in international criminal law conventions include mechanisms to enable Signatories to prosecute offenders of transnational organised crime in their territory (aut judicare) or seek extradition of those who are located abroad (aut dedere). In addition, bilateral and multinational extradition treaties, mutual legal assistance treaties (MLATs), other agreements over judicial cooperation, and law enforcement memoranda of understanding (MoUs) have been established to assert jurisdiction and prosecute criminals within domestic criminal justice systems. But the very same body of law — both domestic and international law — enables countries legitimately to refuse extradition, which too often results in no action being taken against suspects at all, or at best provides only ‘mock’ trials to satisfy the aut dedere aut judicare obligation.
For example, international conventions allow countries to refuse extradition if they have no bilateral extradition agreement with the requesting country;[10] if they suspect that the person will be prosecuted for reasons of gender, ethnicity, nationality, race, religion or political opinion;[11] if their domestic laws prohibit the extradition of their own nationals;[12] in the absence of dual criminality;[13] or they can surrender the person under the condition that he/she will return to serve the sentence.[14] Further, extradition requests may be refused if the requested country considers the offence ‘political’ or ‘military’,[15] or if it does not consider the alleged offence sufficiently serious to warrant extradition and severe penalties.[16] And if extradition is refused in favour of domestic prosecution, local trials often produce little outcome and rarely any substantive conviction if most of the evidence and witnesses are located overseas.
In short, the current system of international criminal law conventions provides a patchwork of mechanisms for judicial cooperation, but it is fully dependent on prosecution at domestic levels to produce any results.[17] International organisations such as Interpol are of little use, as they cannot initiate, let alone conduct investigations, or effect the arrest of persons and seize assets. Interpol primarily relies on the voluntary cooperation and contribution of Member States, and the reluctance of some nations to engage in Interpol cooperation is all too well known and documented.[18] But it is this reliance on national action which creates the greatest obstacle towards effective action against transnational organised crime, and which has created so many safe havens for drug traffickers, migrant smugglers, money launderers and other suspects. This is most convincingly demonstrated in both the drug industry which is booming in countries such as Afghanistan and Myanmar, and the high level of money laundering that is occurring in many South Pacific and Caribbean nations. The opportunities offered by globalisation have enabled sophisticated criminal organisations to take advantage of the discrepancies in different legal systems and the non-cooperative attitude of many nations.
It is for this reason that there is a strong argument to centralise powers to investigate, prosecute and punish transnational organised crime and terrorism in one international agency to complement the activities of national authorities. It would be activated only when those national agencies are unable, incapable or unwilling to intervene. Giving an International Criminal Court jurisdiction over crimes such as drug trafficking, migrant smuggling, trafficking in persons, arms smuggling, money laundering and the like will mean greater certainty of arresting, prosecuting, and punishing those who organise, carry out or otherwise engage in these crimes. The ICC would make international law enforcement more efficient and add another layer of criminal justice; it would provide another forum for prosecution in addition to those established at national levels.
The idea of an international criminal court can be traced back at least to the aftermath of Word War I and the early days of the League of Nations. The idea became more substantive after World War II, with the conclusion of the Convention on the Prevention and Punishment of the Crime of Genocide of 9 December 1948.[19] By elevating the offence of genocide to the first truly international crime, the international community recognised that ‘in order to liberate mankind from such an odious scourge, international co-operation is required’.[20] Article 6 of the Genocide Convention went as far as suggesting that persons charged with the offence of genocide shall be tried either before domestic courts or by ‘such international penal tribunal as may have jurisdiction’.[21]
To enforce the provisions of the Convention, the UN General Assembly Resolution that established the Genocide Convention also initiated discussions to create an international criminal court with jurisdiction over the crime of genocide. It recommended that the International Law Commission (ILC) ‘study the desirability and possibility of establishing an international judicial organ for the trial of persons charged with genocide’,[22] and prepare a Draft Code of Offences against the Peace and Security of Mankind.[23] A first draft was presented by the ILC in 1951,[24] followed by a second draft in 1953-54.[25]
The lack of consensus on a definition of aggression created an early stalemate in the elaboration process, but it was the Cold War division between the Socialist and Western blocs that hindered any further discussion of options for the establishment of an international criminal court for the following 36 years.
The establishment of the International Criminal Court as it exists today goes back to an initiative of the year 1989 in which Trinidad and Tobago made a request to the UN General Assembly to explore the possibility of establishing an international court with jurisdiction over drug trafficking offences.[26] With strong support from Caribbean nations and early backing by the US Government, the General Assembly asked the International Law Commission to resume its work on an ICC statute.[27] In 1994, the ILC submitted a new draft statute to the General Assembly.[28] This development coincided with the atrocities committed in the conflicts in the former Yugoslavia and Rwanda in the early 1990s, which resulted in the creation of two temporary international criminal tribunals — the International Criminal Tribunal for the Former Yugoslavia (ICTY)[29] and the International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda … (ICTR)[30] — to try individuals responsible for the war crimes, crimes against humanity and genocides committed during these conflicts. The creation and work of the ICTY and ICTR lent significant support to the calls for a permanent international criminal court.[31]
In 1995, the UN General Assembly created an Ad Hoc Committee on the Establishment of an International Criminal Court, and after considering the Ad Hoc Committee’s report,[32] handed the drafting of the ICC Statute to the Preparatory Committee on the Establishment of an International Criminal Court. The Preparatory Committee met for the next two years and completed the drafting in April 1998.[33] The UN General Assembly then decided to convene the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, subsequently held in Rome, Italy, from 15 June to 17 July 1998, ‘to finalise and adopt a convention on the establishment of an international criminal court’.[34] The Conference adopted the Rome Statute of the International Criminal Court which entered into force on 1 July 2002.
The ICC is now fully operative. It is based in The Hague, Netherlands. The Court may exercise its jurisdiction either when the case is referred to the ICC prosecutor by a Signatory or by the UN Security Council.[35] The ICC prosecutor may also initiate an investigation at her or his own discretion on the basis of information received, subject to authorisation of the ICC Pre-Trial Chamber.[36]
As mentioned above, countries represented at the Rome Conference agreed to limit the jurisdiction of the ICC to what are regarded as the most serious crimes of international concern. Article 5 of the ICC Statute now grants the ICC jurisdiction over aggression, crimes against humanity, genocide, and war crimes. As will be discussed shortly,[37] there has been consensus that only those four crimes are well established under customary international law, and that the Statute of the ICC only seeks to consolidate established rules of customary international criminal law rather than codifying other principles of international law.
The following parts of this article explore the feasibility of expanding the mandate of the International Criminal Court to enable the Court to prosecute certain transnational organised crimes. This will be done in two ways: first, it will be examined whether the existing jurisdiction of the ICC can be interpreted in a way that covers transnational crimes. Secondly, it will be discussed whether the ICC mandate could be extended by adding further offences to the Court’s jurisdiction.
The jurisdiction of the International Criminal Court (ICC) is limited to the four crimes set out in article 5 of the ICC Statute and defined in articles 6-9.[38] The crimes of genocide, war crimes and the draft definitions of the crime of aggression share little similarity with the activities of transnational criminal organisations. There is, however, some debate as to whether some transnational crimes, in particular trafficking in persons, can amount to a crime against humanity within the meaning of article 7 of the ICC Statute.
The essence of a crime against humanity is an act (or omission)[39] which constitutes or results in a very serious breach of human rights committed as part of a widespread or systematic practice. Article 7(1) of the ICC Statute defines crimes against humanity as specific acts
committed as part of a widespread or systematic attack directed against any civilian population with knowledge of the attack.[40]
To establish criminal responsibility for a crime against humanity, it needs to be proven that one of the acts specified in article 7(1)(a)-(k)[41] — such as, for example, murder, extermination, enslavement etc — were committed as part of
1. a widespread or systematic attack, article 7(1), (2)(a);
2. against any civilian population, article 7(1), (2)(a);
3. by a perpetrator;
4. pursuant to a Government policy, or tolerated by the State, article 7 (2)(a);
5. with knowledge of the attack, article 7(1).
It is no longer required that the attack is connected with an armed conflict (6) or that the perpetrator acted with a discriminatory motive (7).
It is required that crimes against humanity involve a ‘widespread or systematic attack’, a highly orchestrated, methodically planned large-scale action involving a substantial number of victims. In article 7(2)(a) of the ICC Statute attack is defined as ‘a course of conduct involving the multiple commission of acts referred to in [article 7(1)(a)-(k)].’[42]
These elements of article 7 have been unanimously interpreted as requiring a very high threshold. The crimes to be brought before the ICC must be of extreme gravity, of mass scale, and constitute an attack on humanity. In contrast, sporadic, isolated, uncoordinated and random incidents are regarded as insufficient to amount to a widespread or systematic attack.[43]
With a view to transnational organised crime, trafficking in persons in particular, this stringent requirement will exclude many, if not most cases from the jurisdiction of the International Criminal Court. Many trafficking organisations only operate on small and local scales and their structure and activities can rarely be regarded as highly orchestrated. However, examples of highly sophisticated trafficking networks which systematically recruit their victims from specific areas, often involving the use of severe violence, rape, kidnappings and sexual slavery, are plenty. These types of operations will undeniably exceed the high threshold of article 7 and there can be little doubt about the orchestration and coordination of these ‘attacks’.
Article 7(1) of the ICC Statute defines the victim or target of crimes against humanity as ‘any civilian population’. Accordingly, the attack must be directed not just against a random group of persons or isolated individuals. There is consensus that the victim of a crime against humanity must form a clearly identifiable group, usually, but not exclusively, of persons who share a religious, national, ethnic, linguistic, or other background, often in conflict with that of the perpetrator.[44]
This requirement eliminates most transnational organised crimes from the scope of crimes against humanity, including many instances of trafficking in persons, which are driven by financial motives and do not target specific groups. There are, however, multiple instances of trafficking committed by State actors and criminal organisations which directly target victims from specific backgrounds, from specific geographical areas, in specific socioeconomic circumstances or of specific gender.
In addition, Piotrowicz argues that a crime against humanity can also be committed by traffickers against individuals that are part of a group but do not form a group as individuals:
[I]t may be that women and children from a particular national, ethnic or religious group are targeted not principally because they belong to that group, but rather because, belonging to that group, they are in circumstances where they are particularly vulnerable to exploitation. In this case the primary motivation may be financial, not political, but the group is still targeted because of its vulnerability in that particular political environment.[45]
A crime under article 7 of the ICC Statute can be committed by an individual, groups of persons, or an organisation, both in official and unofficial capacities. It is noteworthy that the attack does not have to come from the State or a State organ. Moreover, criminal responsibility for crimes against humanity extends to persons who direct and organise the attack, aid, abet or otherwise participate in it. With respect to trafficking in persons, it is possible to charge organisers and financiers of the operations, those who recruit and transport persons across borders, and those who harbour them, prostitute, buy or otherwise exploit trafficked persons. [46]
The case of Tadic before the ICTY examined in great length whether crimes against humanity can be committed by private individuals and non-State organisations. Here, it was held that crimes against humanity can also be committed ‘by terrorist organisations’, and that ‘private individuals with de facto power or organised in criminal gangs or groups might also commit crimes against humanity’.[47] The literature on the ICC unanimously agrees that an identical reading must be applied to crimes against humanity under article 7 of the ICC Statute.[48] Thus, it seems possible that a crime against humanity can be committed by criminal organisations such as sophisticated trafficking networks and their members, and even by ‘by ordinary businessmen, medical and training personnel, and so forth’.[49]
While there seems to be consensus that crimes against humanity can be committed by non-State actors, the question that does remain is to what extend the act must be carried out or tolerated by the State. Article 7(2)(a) of the ICC Statute requires that the attack occurs ‘pursuant to or in furtherance of a State or organisational policy to commit such attack’.[50] While the Tadic case confirmed that crimes against humanity can in some circumstances be committed by non-State actors, it appears from article 7(2)(a) that the criminal act or acts must either be authorised by the State, or must be part of official or unofficial State policy. The Elements of Crimes, too, require that the attack was committed ‘pursuant to or in furtherance of a State or organisational policy to commit such attack.’[51]
It is sufficient that the attack is (indifferently) tolerated by a government. ‘Such policy’ as the Elements of Crime state ‘in exceptional circumstances [can] be implemented by a deliberate failure [of the State] to take action …’ However, ‘the existence of such a policy cannot be inferred solely from the absence of governmental or organisational action.’[52]
The case law before the ICTY and ICTR provides examples of groups of perpetrators who committed crimes against humanity in their private capacity, but their actions were either connected with government policy or were not prevented by official authorities. Further, in Tadic, the ICTY held that crimes against humanity can also be committed ‘on behalf of entities exercising de facto control over a particular territory but without international recognition or formal status of a “de jure” state’.[53]
In contrast, in the case of Krnojelac the ICTY found no requirement that the perpetrator is either associated with State policy or has territorial control:
[T]here is no requirement under customary international law that the acts of the accused person (or of those persons for whose acts he is criminally responsible) be connected to a policy or plan. … It could be considered sufficient for there to be a strong hatred or prejudice against a particular group, then that may be sufficient for the offence to be made out, in the absence of any policy to harm such a group.[54]
In summary, the case law and literature does not offer a conclusive answer.[55] There seems to be general consensus that non-state actors can commit crimes against humanity, but it is unclear whether their acts, if committed in a non-official capacity, must at least be approved or condoned by an official body for it to fall under article 7 of the ICC Statute. A broad interpretation in favour of including all acts of non-official perpetrators would render crimes against humanity more different to the other crimes under the ICC Statute which require a much closer nexus to official policy, organisation and operation. On the other hand, limiting the offence to only those acts that have been committed in an official capacity would significantly reduce the application of the offence, perhaps to the extent that many acts conventionally regarded as crimes against humanity, would fall outside the scope of article 7. According to Antonio Cassese, this would go ‘beyond what is required under international customary law and unduly restrict the notion under discussion.’[56]
It would thus seem that those crimes which are actively and severely prosecuted and punished by the State will not be regarded as crimes against humanity under the ICC Statute as they fail to meet the requirement of article 7(2)(a). If, however, the acts committed, such as rape, enslavement, trafficking, forced prostitution and so on, are tolerated by the State or if authorities ‘turn a blind eye’ to these activities, they may be treated as crimes against humanity if they otherwise meet the high thresholds required by article 7.[57]
In the case of trafficking in persons, there are examples where countries have been reluctant to take action against traffickers, where corrupt officials have cooperated with trafficking organisations, or where governments have encouraged — openly or subtly — the recruitment of foreign sex workers or the sale and kidnapping especially of children and young girls in rural and remote country areas. It would follow that those instances of trafficking in persons, if committed repeatedly and systematically, can indeed be regarded as crimes against humanity.[58]
To be found guilty for an offence under article 7 of the ICC Statute the prosecution must establish that the accused acted ‘with knowledge of the attack’. It is thus required that the perpetrator had some awareness that the attack was taking place;[59] it is not required to establish that, as a principal or participant, he or she intended the attack or that he/she ‘had knowledge of all characteristics of the attack or the precise details of the plan or policy of the State or organisation’.[60] Further, the prosecution need not prove that the accused agreed to or accepted the policy, or planned the attack he/she was part of, or that he/she had the intention to achieve a particular result through the attack.[61] Some authors, however, seem to suggest that the perpetrator also needed to be aware of the policy or plan behind the attack, but without requiring knowledge of precise details.[62]
In summary, the threshold for the mental elements of offences under article 7 is rather low. All that needs to be shown is that the specific act (conduct) was committed intentionally,[63] and that the accused acted with some awareness that his/her acts were part of a widespread or systematic attack against the civilian population.[64] Only individuals who are completely unaware of the attack will escape criminal responsibility.[65] Kelly Askin further recommends a broad reading of the knowledge requirement to prevent ‘a serious detriment’; accordingly ‘keeping with recognised norms, presumed or imputed knowledge can likely be inferred from all surrounding circumstances.’[66]
Thus, with a view to trafficking in persons and perhaps other forms of transnational organised crime, it has become possible to charge those offenders who intentionally engage in, organise, aid, abet, facilitate, or otherwise participate in specific acts such as enslavement and sexual slavery, forced prostitution, rape, or trafficking, being aware that their actions are part of an orchestrated operation.
Contrary to some earlier definitions of crimes against humanity, the attack under article 7 of the ICC Statute ‘need not constitute a military attack’.[67] To this end, the ICC Statute consolidates rules under customary international law which do not require a nexus to armed conflict as a necessary element of crimes against humanity.[68] In contrast, the ICTY only deals with crimes against humanity committed during armed conflict.[69]
It is therefore possible for crimes against humanity to be committed during peace-time by non-combatants, thus making it possible to charge persons who commit the offence as part of a criminal operation.
Lastly, the scope of application of crimes against humanity has been broadened by the abolition of the requirement of motive on the part of the perpetrator. Under some earlier definitions the prosecution needed to establish that the accused acted with a discriminatory motive. This is no longer required under article 7 of the ICC Statute. [70]
Consequently, it has become possible to charge persons who commit the crime solely for the purpose of financial gain, or who do not have any specific motive whatsoever, so long as the act amounts to a widespread or systematic attack against a civilian population. According to Piotrowicz, ‘the elements of the crime … are wide enough to encompass financial motivation alone as sufficient to trigger the application of Article 7, so long as the trafficking operation is widespread or systematic and aimed at a particular civilian population.’[71]
In addition to the elements of crimes against humanity, for a conviction under article 7 of the ICC Statute the prosecution must also establish proof of a specific act which formed part of the widespread or systematic attack against a civilian population. Article 7(1)(a)-(k) contains a list of eleven specific acts, ranging from murder to crimes such as rape, apartheid, torture and ‘other inhumane acts of similar character’. This list of acts contains a substantial number of offences which are closely associated with trafficking in persons, namely enslavement, rape, sexual slavery, enforced prostitution, and other forms of sexual violence of comparable gravity.
Article 7(2)(c) of the ICC Statute defines enslavement as :
the exercise of any or all powers attaching to the right of ownership over a person and includes the exercise of such power in the course of trafficking in persons, in particular women and children.[72]
In line with article 30 of the ICC Statute, the prosecution must establish the material element of exercising such powers and the fault element of intention to exercise them.
This definition reflects the concept of enslavement under customary international law and the Slavery Convention of 1926.[73] The ICTY case of Kunarac and others, for instance, defined enslavement as ‘exploitation; the exaction of forced or compulsory labour or service, often without remuneration and often, though not necessarily, involving physical hardship; sex; prostitution; and human trafficking.’[74]
The definition makes explicit mention of trafficking in persons using the same technical term as the Protocol to Prevent, Suppress and Punish Trafficking in Persons, but it contains no reference to the Protocol, nor does s (2) of article 7 define the term ‘trafficking in persons’. Enslavement under the ICC Statute covers in particular, instances of trafficking in persons for the purpose of forced labour. In contrast, as will be shown in the next paragraph, trafficking for sexual purposes is regarded as sexual slavery under article 7(1)(g). This distinction, however, is rather academic and of little practical relevance. In fact, forced labour may also encompass instances of involuntary work in brothels, as dancers or elsewhere in the sex industry. The inclusion of enslavement and sexual slavery covers a very broad spectrum of patterns and purposes of trafficking in persons, so that any instance in which a person is sold, lent, or otherwise treated like chattel can, subject to the other requirements, amount to a crime against humanity.
It is noteworthy that under article 7(2)(c), for enslavement, no proof of maltreatment, physical, sexual or psychological abuse is necessary. It is not required that the victims of trafficking have been forced or threatened to perform compulsory, uncompensated labour:
Thus the victims may be adequately fed and housed, given access to medical treatment, not subjected to physical or psychological abuse, but they may nevertheless be enslaved. … The methods used by traffickers in assuming control over women, retaining that control and their sexual exploitation, leaves no room for doubt that the treatment of their victims fits into this definition.[75]
Sexual slavery under article 7(1)(g) is not defined in the ICC Statute and there is no conventional or case law on this type of crime against humanity.[76] As mentioned previously, there is no clear distinction between enslavement under article 7(c) and sexual slavery, except, of course, that the forced occupation under paragraph (g) must be of a sexual nature. Again, there is no requirement of physical or psychological abuse. The victim, too, does not have to be exploited sexually; it is the compulsory service that the victim has to perform that must be of a sexual kind.
For a crime against humanity involving sexual slavery, it is necessary to prove that the perpetrator intentionally forced the victim to engage in one or more acts of a sexual nature, knowing that his or her conduct forms part of a widespread or systematic attack. Many instances of trafficking in persons can be considered sexual slavery, especially if persons are forced to work in the sex industry, or where they are recruited, tricked or sold for sexual purposes.[77] It may also include those cases where women are forced to work in brothels, though these instances may be better regarded as enforced prostitution.
In the context of trafficking in persons it is noteworthy that unlike the Protocol to Prevent, Suppress and Punish Trafficking in Persons, none of the specific acts that form part of crimes against humanity require any proof that the accused obtained a benefit of any kind out of the activity.[78]
As with sexual slavery, the ICC Statute does not define the term ‘enforced prostitution’, and there is no conventional or customary authority for it in international law. It remains unclear as to what constitutes enforced prostitution, and what sets this offence apart from enslavement and, in particular, from sexual slavery. Elsewhere,
forced prostitution was used to describe a situation in which women and girls are sold or prostituted by their husbands or parents or some other person to whom laws or practices grant or impute ownership over the female … when persons with imputed authority force or coerce one into sexual servitude, that crime is forced prostitution.[79]
The motivation of the accused is irrelevant, though of course in the context of trafficking many victims are forced into prostitution to generate financial profit. It is not necessary that the perpetrator physically assaults the victim; any use or threat of force or coercion will suffice. This includes, for example, fear of violence, duress, detention, psychological oppression or abuse of power, or by taking advantage of a coercive environment, or otherwise abusing the victim’s incapacity to give consent. Particularly in the context of trafficking, where women may be imprisoned, deprived of their identity documents, and held in places where they do not know their location, this wider definition is useful. It recognises that not only physical force may be used to exploit people. It also includes situations where the victim has become so demoralised that she/he effectively has no will to consent to working as a prostitute.[80]
One further specific act listed in article 7(1)(g) that is closely associated with trafficking in persons is rape. Many instances of trafficking in persons involve the rape of the victims, by the traffickers themselves, other people who exercise control over the victims – by brothel-owners or their customers. Rape, along with other forms of sexual violence, is often used to break the will of victims of trafficking, or to threaten or force them into sexual slavery or prostitution.
To amount to a crime against humanity, it needs to be demonstrated that the rape occurred as a systematic or widespread attack. This in particular will eliminate criminal responsibility for those customers who engage in non-consensual sexual intercourse with the victims, as customers will rarely, if ever, have any awareness that their actions form part of a broader, orchestrated attack within the meaning of article 7 of the ICC Statute.[81]
While the ICC Statute does not define the elements of rape any further, the case law developed by the ICTR and later adopted by the ICTY have consistently interpreted the term ‘rape’ as a ‘physical invasion of a sexual nature, committed under circumstances which are coercive’.[82] A similar interpretation of rape under the ICC Statute has been suggested.
Lastly, crimes against humanity can be committed through ‘other forms of sexual violence of comparable gravity’ which form part of a widespread and systematic attack against a civilian population.[83] This last option under article 7(1)(g) may cover some instances not already included in the earlier sexual offences, such as, for example, other instances of sexual assault that are not rape but of similar seriousness.[84]
It may be possible to interpret crimes against humanity under article 7 of the ICC Statute so as to encompass serious cases of trafficking in persons conducted by criminal organisations. Trafficking in persons, especially women and children can certainly fall within the jurisdiction of the ICC. This is expressly acknowledged in the statute and the Elements of Crimes of the ICC Statute. It is clear then, that trafficking may be a crime against humanity. However, ‘it is equally clear that not all trafficking is necessarily a crime against humanity.’[85] Only the most severe, perhaps most brutal and most orchestrated instances of trafficking could ever meet the high thresholds of article 7, and only then if the acts committed have some association with State policy or practice, which may also be manifested by a deliberate inactivity of the State to take action against traffickers.
The reality is, however, that under the current law and in the current political climate it is unlikely that trafficking in persons committed by criminal organisations will be brought to trial before the ICC. It is difficult to imagine that any Signatory will consider common patterns of trafficking grave enough to request intervention by the ICC prosecutor. Further, the requirements under article 7 are so high that many cases will not be prosecuted simply because of the difficulties in providing sufficient evidence for the material elements of crimes against humanity. However, as the experience of the ICTR and ICTY has shown, there are many instances of trafficking which have been brought before international criminal tribunals, thus leaving the hope that the international community will act again and bring cases of a similar scale as those that occurred in Rwanda and the Former Yugoslavia before the International Criminal Court.
Rather than interpreting the existing mandate of the International Criminal Court, cases of transnational organised crime could also be brought within the jurisdiction of the Court by simply adding additional crimes to the ICC Statute. In fact, it was the proposal for a court to prosecute drug trafficking that led to the establishment of the ICC.[86] Several proposals were made at the Rome Conference for inclusion of transnational organised crimes such as drug trafficking, trafficking in small arms, and money laundering.[87]
During the various drafting stages of the ICC Statute the general sense was to differentiate crimes under international law, between ‘customary crimes’ and ‘treaty crimes’, with only the first category to be incorporated into the mandate of the ICC. It was argued that only crimes against humanity, war crimes, genocide, and aggression are universal ‘core’ crimes which apply by custom, while other crimes such as drug trafficking apply only by convention ‘in the sense that they are punishable only in the territory of State Parties to the treaties on the respective subjects and these States may not necessarily be State Parties to the ICC Statute.’ [88]
It is questionable whether this distinction is valid and sustainable. The question also arises as to whether the inclusion of other crimes into the ICC Statute is indeed warranted, desirable and achievable, and whether it is feasible from political and economic viewpoints. The following sections will explore these issues in relation to those organised crimes considered during the drafting process: drug trafficking, trafficking in small arms, money laundering and offences against the environment.
Offences involving narcotic drugs and psychotropic substances were among the first crimes to be recognised under international law, dating back to discussions at the Shanghai international opium conference of 1909,[89] which were translated into legal obligations in the First International Opium Convention of 1912.[90] Since then, a total of thirteen international agreements on drug control have been concluded along with ten international instruments on drug related issues.[91] The last, and perhaps most significant addition to this list was the 1988 Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances,[92] now known as the Vienna Convention, which establishes a comprehensive regime directed specifically at preventing and suppressing drug trafficking and associated crimes such as money laundering. Today, the international law on trafficking in narcotic drugs and psychotropic substances contains a wealth of widely accepted mechanisms to prohibit the illicit manufacturing, transfer, sale, use, possession et cetera of these substances, along with money laundering and corruption. It also provides mutual legal assistance and judicial cooperation measures, extradition clauses, provisions on law enforcement cooperation, technical assistance and training, and prevention mechanisms.
It was, as mentioned earlier, the call for an international court with jurisdiction over narcotrafficking that ultimately resulted in the creation of the ICC. In 1989, Trinidad and Tobago — frustrated with the inability to investigate international drug trafficking rings, the lack of capacity of smaller states to prosecute offenders and the obstacles of cross-border law enforcement and judicial cooperation — proposed to the United Nations to establish an international court with jurisdiction over such offences, recognising the
established link between illegal trafficking in narcotic drugs and other recognised criminal activities which endanger the constitutional order of States and violate basic human rights.[93]
The proposal was included into the agenda of the 44th Session of the UN General Assembly,[94] and found strong support from other Caribbean nations and initially also by the United States.[95] The UN General Assembly then requested the International Law Commission
to address the question of establishing an international criminal court or other criminal trial mechanisms with jurisdiction over … persons engaged in illicit trafficking in narcotic drugs across national frontiers …[96]
Over the following six years, the ILC prepared several drafts which formed the basis of the statute for an International Criminal Court: in 1991, a first Draft Code of Crimes against the Peace and Security of Mankind;[97] in 1993 and 1994, a Draft Statute for an International Criminal Court,[98] which both made specific mention of drug trafficking; and in 1996 a further draft Code of Crimes against the Peace and Security of Mankind,[99] which did not contain such a reference.
The 1991 Draft Code of Crimes against the Peace and Security of Mankind in article 25 contained a very comprehensive offence of ‘illicit traffic in narcotic drugs on a large scale.’[100] This draft also provided for an international offence of ‘wilfully causing or ordering the causing of widespread, long-term and severe damage to the natural environment’.[101]
The drafts of a Statute for an International Criminal Court submitted by the ILC in 1993 and 1994 envisaged a broad mandate of the ICC. The 1993 draft gave the ICC jurisdiction over three kinds of offences: (i) crimes under general international law, (ii) crimes under so-called self-executing conventions, and (iii) crimes under ‘suppression conventions’, which included a reference to the 1988 Vienna Convention.[102] The 1994 draft covered five (types of) crimes:[103] (a) genocide, (b) aggression, (c) ‘serious violations of the laws and customs applicable in armed conflict’, (d) crimes against humanity, and (e) ‘crimes, established under or pursuant to the treaty provisions listed in the Annex, which, having regard to the conduct alleged, constitute exceptionally serious crimes of international concern.’ There were two criteria for including crimes in the Annex:
a. the crimes are themselves defined by the treaty so that an international criminal court could apply that treaty as law in relation to the crime, subject to the nullum crime guarantee in Article 39;
b. the treaty created either a system of universal jurisdiction based on the principle aut dedere aut judicare, or the possibility for an international criminal court to try the crimes, or both, thus recognising clearly the principle of international concern.[104]
The Annex lists fourteen treaty crimes, including, inter alia, the 1988 Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, some of the international anti-terrorism conventions, but no other convention dealing with transnational organised crime.[105]
The ILC thus established a distinction between a ‘non-exhaustive list of crimes under general international law’ in subparagraphs (a)-(d) and an ‘exhaustive enumeration’ of ‘what may be termed treaty crimes’ in subparagraph (e).[106] With reference to the latter category the ILC found that these crimes were sufficiently established and defined under conventional law and that the ICC should obtain jurisdiction over those offences, ‘having regard to the conduct alleged, [that] constitute an exceptionally serious crime of international concern’, while offences below this threshold were to be left to national courts to deal with.[107] The 1994 Draft further established in article 53(2)(b) that State Parties that refuse to surrender accused persons to the international court are obliged to prosecute the matter before their own authorities. The draft also in article 35(c) reserved a right for the court to declare a matter inadmissible if it is regarded as ‘not of such gravity to justify further action by the Court’.[108]
In the following two years, opposition within the ILC to include ‘treaty crimes’ grew substantially. The concern focussed specifically on the potential width of the scope of such offences and the possibility that they may overwhelm the resources of an international court. With a view to drug trafficking as criminalised under the 1988 Vienna Convention, the proposed mandate was subsequently reduced to only ‘serious offences’ (without setting out a definition of what exactly amounts to ‘serious’), and later to ‘exceptionally serious offences having an international dimension’.[109] As reservations continued, in March 1998 — in a final attempt to keep drug trafficking within the ICC Statute — Costa Rica, Guyana, Jamaica, and Trinidad and Tobago proposed to limit the jurisdiction to ‘large scale transboundary offences’.[110]
In 1996, the ILC presented a separate draft to the UN General Assembly for a Code of Crimes against the Peace and Security of Mankind.[111] This draft no longer included drug trafficking and, in articles 16-20, only recognised aggression, genocide, crimes against humanity, crimes against UN and associated personnel, and war crimes as ‘crimes against the peace and security of mankind’.[112]
In 1988, the Rome Conference was convened to finalise the text of the ICC Statute. When the plenipotentiaries first met in Rome, drug trafficking was still under consideration for inclusion into the mandate of the International Criminal Court. The first drafts considered by the Rome Conference envisaged incorporating ‘crimes involving the illicit traffic in narcotic drugs and psychotropic substances’.
As opposition towards the inclusion of these crimes grew, Trinidad and Tobago, Barbados, Dominica and Jamaica again offered to raise the threshold for offences under the draft statute. Contrary to the earlier draft discussed by the ILC, this new proposal sought to include drug trafficking in the jurisdiction of the ICC if committed:
(a) on a large scale (and)(or) in a transboundary context;
(b) within the framework of an organised and hierarchical structure;
(c) with the use of violence and intimidation against private persons, judicial persons or other institutions, or members of the legislative, executive or judicial arms of government, (thereby) creating fear or insecurity within a state or disrupting its economic, social, political or security structures or with other consequences of a similar nature; or
(d) in a context in which corrupt influence is exerted over the public, the media, and public institutions.[113]
This limitation of the scope found significant support among developing nations, including Algeria, Argentina, Barbados, Dominica, the, India, Jamaica, Kyrgyz Republic, Libya, Macedonia, Madagascar, Nigeria, Sri Lanka, Tajikistan, Thailand, Trinidad and Tobago and Turkey; additionally, the Holy See supported this limitation. But at the same time, the support of industrialised nations, and the United States in particular, faded during the Conference.[114]
Ultimately, drug trafficking was not included in the final text of the ICC Statute, and nor was there enough support to renegotiate the scope of the drug trafficking offence in the way in which aggression and terrorism are currently considered for inclusion in the ICC Statute by UN committees. Instead, some ‘treaty crimes’, including the trafficking in illicit drugs and psychotropic substances, were left to be considered by a future review conference.[115] This outcome, as argued by some writers, ‘places discussion of those crimes at a disadvantage, since the Review Conference will not have the benefit of negotiations which, had the proposal been accepted, would have taken place in the Preparatory Commission in relation to them.’[116] ‘A review and inclusion is not going to happen soon, and the mere fact that the ICC’s statute will have to be amended to include such offences will be a formidable barrier to the ICC ever taking responsibility for them.’[117]
What then are the arguments for omitting drug trafficking from the ICC Statute?
Those opposing the idea of the ICC gaining jurisdiction over drug trafficking and other ‘treaty crimes’ argue that, firstly, these crimes do not have the same international status as the other offences under international criminal law; second, that the nature and scale of such crimes is less serious than, for instance, genocide and war crimes; third, that the worldwide level of drug trafficking and other transnational organised crimes would exceed the capacity and resources of any international court; and fourth, that the sovereignty issues of some nations may bar prosecution of such offences by an international authority. In April 1996, the UN Preparatory Committee on the Establishment of an International Criminal Court summarised these concerns:
Drug trafficking should not be included because these crimes were … of such a quantity as to flood the court; the court would not have the necessary resources to conduct lengthy and complex investigations required to prosecute the crimes; the investigation of the crimes involved highly sensitive information and confidential strategies; and the crime could be more effectively investigated and prosecuted by national authorities under existing international cooperation arrangements.[118]
Much of the debate since the proposal by Trinidad and Tobago in 1989 surrounded the international legal status, recognition, and lack of historical precedent of inclusion of treaty crimes such as drug trafficking into the mandate of international criminal tribunals, especially in comparison to the application and recognition of genocide, aggression, and war crimes.
The argument was made that those crimes now included in the ICC Statute, crimes against humanity, war crimes, genocide, and aggression — and only those — have customary status, are self-executing, and have universal application, thus binding States even if they have not formally signed relevant conventions. Building on this point is the argument that the role of the ICC Statute was only to consolidate and codify existing principles of customary international criminal law.
In contrast, offences such as drug trafficking were regarded as treaty crimes, defined by convention rather than custom. It was argued that such offences are not self-executing and do not have universal application in the sense that their application is confined to the territory of the Signatories. Another impediment is that unlike customary international law, conventional international criminal law does not operate without the existence of national legislation, even when international treaties provide for a jurisdictional basis. For example, the fact that countries that sign up to the ICC Statute may not have signed treaties such as the 1988 Vienna Convention — and vice versa — was considered a reason not to include these treaty crimes in the mandate of the ICC. The view was adopted that the ICC’s operation would thus depend not on whether a country was State Party to the ICC Statute, but whether it has signed the convention establishing the relevant offence.[119]
Further, it was stated that it was not the role of the ICC to progressively develop international criminal law beyond the customary crimes.[120] The United States, supported by other European and western nations, expressed the view that:
This court should not concern itself with incidental or common crimes, nor should it be in the business of deciding what even is a crime. This is not the place for progressive development of the law into uncertain areas, or for the elaboration of new and unprecedented criminal law. The court must concern itself with those atrocities which are universally recognised as wrongful and condemned.[121]
The position to differentiate offences under international law between customary and conventional crimes finds significant support in the literature, though questions remain whether the distinction is sustainable. Obviously, the former offences were regarded as more important than the latter. It is doubtful, however, that crimes such as genocide or crimes against humanity are recognised — in policy and in practice — by more countries around the world than offences such as drug trafficking.[122] There may be arguments to support a position that narcotrafficking amounts to customary international criminal law. The offence of trafficking in narcotic drugs and psychotropic substances has a long history in international law, has extra-territorial application, provides for the obligation to extradite or prosecute (aut dedere aut judicare), and has been for some time a truly transnational offence. Its commission involves multiple jurisdictions, perhaps even more than genocide or crimes against humanity which have less conventional history and often do not even cross international borders.[123]
Elsewhere, it has been argued that
Despite the universal concern about drug trafficking and drug abuse, which is reflected in the large number of Parties to the 1988 [Vienna] Convention, there can be little doubt that the acts criminalised in Article 3 are not crimes under customary international law. The wide participation in the Convention might suggest that the first criterion for a rule of customary international law — generality of practice — is close to being satisfied; however, the second criterion for such a rule — opinio juris — would not be met, for it could not reasonably be contended that the criminalisation of the wide range of conduct in the Convention … arises out of legal obligation, as distinct from a contractual treaty obligation.[124] …
Thus, the real distinction between core crimes and treaty crimes … consists in the level and quality of support for them from the international community, that is, generality of practice as the quantitative index of customary law, and the sense of legal obligation (opinio juris) as the qualitative index of that law.[125]
During the discussion in the International Law Commission and at the Rome Conference there was a perception among some participants that drug trafficking is less serious than crimes of aggression, genocide, crimes against humanity and war crimes, and that an international court should not have jurisdiction over ‘trivial’ offences which may reduce the standing and reputation of the court.[126]
However, there is little substance to these views, and the repeated attempts, by Caribbean nations in particular, to demonstrate the seriousness of international drug trafficking and its impact on smaller states, are most laudable. There can be no doubt that the global trafficking in narcotic drugs and psychotropic substances has for the past forty years been the most pressing of all criminal justice issues, which is also manifested in the enormous amount of money and resources that has been invested in fighting the phenomenon at least since US President Nixon declared the ‘war on drugs’ in 1969. All countries, industrialised and developing, spend more effort and money on preventing and suppressing drug trafficking than perhaps on all other crimes combined, including those under customary international law. Only the resources invested in the ‘war on terror’ may have recently outstripped those spent on fighting the drug problem.[127]
Regrettably, however, one has to agree with Boister’s observation that:
[t]he international community as a whole … would have to exhibit a much greater conviction than presently exists that these offences seriously endanger its interests and shock its collective conscience. … At present it is not states but individuals that sponsor drug offences and most states do not perceive these offences as either a threat to the international order or as a breach of a fundamental norm. … Until it does so, drug trafficking will neither be an international crime nor fall within the ICC’s jurisdiction.[128]
Perhaps more convincing is the argument that jurisdiction over drug trafficking would overwhelm the resources of an international criminal court, or, as Boister put it, ‘the ICC would be cheaper to start up and to run if it only had jurisdiction over core crimes’.[129] From the moment proposals for such a court were put forward, there has been concern over the resources needed to prosecute offences of the magnitude of the global illicit drug trade. This concern triggered the amendments to the scope and threshold of a drug trafficking offence under the ICC Statute and the limitation to very serious offences. But even the narrowest of definitions still failed to meet the reservations of many delegations at the Rome Conference, who continuously argued that the inclusion of drug trafficking in the ICC Statute would result in the ICC using its limited budget to prosecute only drug cases.[130]
In an attempt to find a compromise and to address this concern, the possibility was raised that the proceeds confiscated in drug trafficking cases be used to fund the investigations and prosecutions of the ICC. In support of this proposal, the point was made that the 1988 Vienna Convention in fact specifically suggests contributing funds from the sale of proceeds or property to ‘intergovernmental bodies specialising in the fight against illicit traffic in and abuse of narcotic drugs and psychotropic substances’.[131]
Ultimately, drug trafficking was not included in the ICC Statute, thus leaving the offence to prosecution by national agencies, and most authors do not seem to challenge this ‘resources argument’. But, as the case of the Caribbean nations demonstrates, smaller and less developed nations have very limited resources to fight the ‘war on drugs’ and, even if the political will exists, have little ability to obtain cooperation from larger states.[132] Thus the resources argument is, at best, circular, as even an under-resourced ICC would have at least a much better mandate to prosecute large-scale transnational trafficking rings than any national agency ever will.
Lastly, some countries based their opposition to the inclusion of drug trafficking on internal considerations of national sovereignty and confidentiality. The United States in particular, although a long advocate of an international drug court, expressed its unwillingness to share information on international drug traffickers with an ‘ambivalent and unknown’ international criminal court for fear that its own investigations be jeopardised and sources of intelligence be put in danger.[133]
However, it is this obstacle of suspicion and lack of trust that the jurisdiction of an international body is trying to overcome. As long as countries adopt the view that they cannot share their intelligence, evidence and other information, the ‘war on drugs’ is doomed to fail, which, in return, only strengthens the argument to include crimes such as drug trafficking into the mandate of the ICC.[134]
Several other crimes were proposed for inclusion into the ICC Statute during the consultations of the International Law Commission and also at the Rome Conference.
During the drafting of a Code of Crimes against Peace and Mankind by the ILC, the Commission briefly considered whether ‘wilful and severe damage to the environment’ can amount to a crime of the same gravity as other offences covered by the draft Code. The 1991 Draft Code of Crimes against the Peace and Security of Mankind in article 26 contained an offence of ‘wilfully causing or ordering the causing of widespread, long-term and severe damage to the natural environment.’[135] The general consensus appeared to be that environmental offences of a particularly heinous and orchestrated nature may in fact be regarded as cases of aggression, crimes against humanity, war crimes, or perhaps terrorism, but that the separate inclusion of such a crime in the Code would not be warranted. There was no proposal to include this kind of offence into the 1996 draft Code of Crimes against Peace and Mankind or the ICC Statute.[136]
Trafficking in small arms was one of the crimes considered at the Rome Conference. Similar to drug trafficking, it too has wide-reaching impacts and dire consequences, especially on smaller countries. This may explain why the Madagascan delegation orally proposed the inclusion of this offence. Madagascar too, considered the dumping of nuclear waste in foreign countries as an international crime over which the ICC ought to have jurisdiction. Further, money laundering was considered by some as a crime worth including in the ICC Statute; this view was expressed orally by Nigeria at the Rome Conference. However, none of these offences were seriously discussed for inclusion in the ICC Statute by the Rome Conference, and also were not mentioned for possible consideration by a Review Conference.[137]
Perhaps surprisingly, piracy, the oldest of all international criminal offences, was at no time considered for inclusion in the ICC Statute. Unlike any of the other crimes within and outside the ICC’s mandate, piracy is perhaps the most universally recognised international offence and there is general consensus that even outside the relevant Law of the Sea conventions piracy is an offence of customary international criminal law.[138]
The inadequacies of the current system to investigate, prosecute and convict transnational organised crime are obvious and long-standing. Every year, too many people exploit the discrepancies between different criminal justice systems and the loopholes of international criminal law to their best advantage, resulting in too many perpetrators escaping prosecution, too many victims being abused or killed at the hands of transnational criminal organisations and too great a profit being made by global crime networks. ‘Crime pays’ as long as nations fail to cooperate more closely in law enforcement and judicial proceedings. Nations will continue to lose their ‘war on crime’ unless they resort to the weapons of international prosecution.
Transnational organised crime is a problem in need of a solution; the newly created International Criminal Court is a solution in need of problems. The creation of the International Criminal Court has created an opportunity to overcome many of the deficiencies of the past. It offers a new forum to prosecute cases that would otherwise not be dealt with. It offers a more reliable tool to prosecute seemingly unreachable and uncontrollable mafia bosses and drug cartels, as it is less vulnerable to intimidation and corruption by criminal gangs. It offers perhaps a step towards a global criminal justice system in which there is no safe haven for those engaging in transnational organised crime.[139]
This aim, however, remains distant as long as ‘governments have no desire to turn the ICC Statute into a comprehensive codification of international criminal law.’[140] This article has demonstrated that political reservations towards broadening the ICC’s mandate remain a hindrance, as countries continue to place their sovereignty ahead of criminal justice.
A further obstacle lies in the fact that the system of international criminal law, its enforcement and jurisdiction, is only slowly emerging and is still being developed into a more comprehensive body of law. The rather academic and perhaps artificial distinction between conventional and customary international law is also unhelpful in elaborating and promoting a comprehensive system of international justice.[141]
Given the reluctance of states to broaden and strengthen the mandate of the ICC, some have suggested the establishment of regional criminal courts instead. This may have the advantage of bringing together those countries that share not only borders, but also similar interests and similar problems. It may enable those countries that have the political will to act decisively against drug trafficking, trafficking in persons and other types of transnational organised crime to join forces and leave behind those that lack the will and capacity to commit themselves to concerted action. Elements of this type of cooperation are visible among the members of the European Union and, to a lesser extent, in regional organisations such as ASEAN or the Inter-American system. However, this approach fails to overcome and eliminate the shortcomings of the existing regimes and simply shifts loopholes for criminals to exploit elsewhere.[142]
Only very slowly are countries coming to understand that to prevent impunity for transnational crime, they must cooperate more closely and establish mutual trust at bilateral and multilateral levels. With growing levels of transnational organised crime on the one hand, and success stories of the arrest of key criminal leaders on the other, some countries have started to acknowledge that international criminal law is a valuable complement to domestic enforcement efforts and thus worth supporting. As the example of the Caribbean nations has shown, smaller nations depend largely on the cooperation of the larger powers if they wish to investigate traces of transnational organised crime and prosecute offenders. Thus, an international criminal court would be of enormous practical assistance to these states. It would also have a symbolic value; it ‘would illustrate that no one is above the law. [It] would serve as stabilising reference points for floundering national criminal justice systems.’[143]
[*] PhD (Law), Lecturer, The University of Queensland, TC Beirne School of Law, Brisbane, Australia. The author wishes to thank Ms Margaret Purdy, Ottawa, the staff at the Liu Institute of Global Studies, University of British Columbia, Vancouver, and Mr Jason McDougald, Jones Day New York, for their cooperation, inspiration, and friendship at the time this article was taking shape.
[1] Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187 UNTS 3 (entered into force 1 July 2002) (‘ICC Statute’).
[2] As on 20 August 2004, www.un.org/law/icc/statute/romefra.htm.
[3] Kofi A Annan, Speech delivered at the UN Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Rome, Italy, 15 June-17 July 1998.
[4] Convention against Transnational Organised Crime, Annex 1, UN Doc A/GA RES/55/383 (2000).
[5] See Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, UN Doc E/CONF.82/15 Corr.1 (1988); Single Convention on Narcotic Drugs, opened for signature 30 March 1961, 976 UNTS 105 (entered into force 13 December 1964); and earlier conventions and protocols.
[6] Protocol against the Smuggling of Migrants by Land, Sea and Air, supplementing the United Nations Convention against Transnational Organized Crime, G.A. res. 55/25, Annex III, 55 U.N. GAOR Supp. (No. 49), [65], UN Doc A/45/49 (Vol. 1) (2001).
[7] See Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children, GA Res 25, annex II, UN GAOR, 55th Sess., Supp. No. 49, [60], UN Doc A/45/49 (Vol. 1) (2001); Convention for the Suppression of Traffic in Persons and of the Exploitation of Prostitution of Others, 96 UNTS 271 (entered into force 25 July 1951); and earlier conventions.
[8] Protocol against the Illicit Manufacturing of and Trafficking in Firearms, their Parts and Components and Ammunition, UN Doc A/RES/383/Add.2 (2000).
[9] On the principle aut dedere aut judicare generally see M Cherif Bassiouni and Edward M Wise, Aut Dedere aut Judicare: The Duty to Prosecute of Extradite in International Law (1st ed, 1995) 3-69.
[10] See, for example, Convention against Transnational Organised Crime, Annex 1, UN Doc A/GA RES/55/383, art 16(4) (2000).
[11] Ibid.
[12] Cf ibid, art 16(7) (2000); Cf Bassiouni & Wise, above n 9, 10, 62.
[13] See, for example, ibid, art 16(1)
[14] See, for example, ibid, art 16(11)
[15] Cf Extradition Act 1988 (Cth) s 7. See generally Bassiouni & Wise, above n 9, 10-11.
[16] See, for example, above n 10, art 16(7) (2000).
[17] See further Molly McConville, ‘A Global War on Drugs: Why the United States Should Support the Prosecution of Drug Trafficking in the International Criminal Court’ (2000) 37(1) American Criminal Law Review 75, 80-84.
[18] Carrie Donigan Guymon, ‘International Legal Mechanisms for Combating Transnational Organized Crime: The Need for a Multilateral Convention’ (2000) 18 Berkeley Journal of International Law 53, 72-73; McConville, above n 17, 80; Andreas Schloenhardt, Migrant Smuggling – Illegal Migration and Organised Crime in Australia and the Asia Pacific Region (2003) 305-307.
[19] Convention on the Prevention and Punishment of the Crime of Genocide, 78 UNTS 277, entered into force 12 January 1951(‘Genocide Convention’).
[20] Genocide Convention, Preamble.
[21] Ibid art 6.
[22] Prevention and Punishment of the Crime of Genocide, GA Res 260 U.N. GAOR, 3rd Sess, [177], UN Doc A/810 (1948).
[23] Formulation of the principles recognized in the Charter of the Nurnberg Tribunal and in the judgement of the Tribunal, A/Res/177 (II), UN GAOR, 2nd sess, UN Doc A/519 (1947).
[24] Yearbook of the International Law Commission, vol II, [134], UN Doc A/CN.4/SER.A/1951/Add.1 (1978).
[25] Ibid 149.
[26] Letter dated 21 August 1998 from the Permanent Representative of Trinidad and Tobago to the United Nations Addressed to the Secretary-General, UN Doc A/44/195 (1989); Convention on the Rights of the Child, GA Res 44/25, annex, 44 UN GAOR Supp. (No. 49), UN Doc A/44/49 (1989), (entered into force 2 September 1990).
[27] Summary record of the 38th meeting: 6th Committee, held on Friday, 10 November 1989, New York, General Assembly, 44th session, UN Doc A/C.6/44/SR.38-41 (1989). See further Part III A.3 below.
[28] Report of the International Law Commission on the work of its forty-sixth session, UN Doc A/49/10 (1994).
[29] Resolution 808 (1993) / adopted by the Security Council at its 3175th meeting, on 22 February 1993, SC Res 808, UN Doc S/RES/808 (1993); Resolution 827 (1993) / adopted by the Security Council at its 3217th meeting, on 25 May 1993, SC Res 827, UN Doc S/RES/827 (1993).
[30] Resolution 955 (1994) / adopted by the Security Council at its 3453rd meeting, on 8 November 1994, SC Res 955, UN Doc S/RES/955 (1994).
[31] See further, Kriangsak Kittichaisaree, International Criminal Law (1st ed, 2001) 22-27; William A Schabbas, An Introduction to the International Criminal Court (2nd ed, 2004) 10-13.
[32] United Nations, Report of the Ad Hoc Committee on the Establishment of an International Criminal Court, UN GAOR, 50th sess, Supp No 22, UN Doc A/50/22 (1995).
[33] United Nations, Draft Statute for the International Criminal Court, Report of the Preparatory Committee on the Establishment of an International Criminal Court, UN Doc A/CONF.183/2/Add.1 (1998).
[34] United Nations, Establishment of an International Criminal Court, GA Res 52/160, UN GAOR, 52nd sess, Supp No 49, UN Doc A/RES/52/160 (1997). See generally on the work of the Rome Conference, Roy S Lee, ‘The Rome Conference and Its Contributions to International Law’, in Roy S Lee (ed), The International Criminal Court, The Making of the Rome Statute (1999) 13-26.
[35] ICC Statute , arts 13(a)-(b), 14
[36] Ibid art 13(c), 15.
[38] The crime of aggression has yet to be defined but is referred to in art 5(1)(d) ICC Statute.
[39] Claire de Than and Edwin Shorts, International Criminal Law and Human Rights Law (1st ed, 2003) para 5-030.
[40] ICC Statute, art 7(1).
[42] ICC Statute, art 7(2)(a).
[43] Antonio Cassese, International Criminal Law (2003) 65-66; de Than & Shorts, above n 39, [5-004, 5-005]; See also ICC Assembly of State Parties, Official Records of the Assembly of States Parties to the Rome Statute of the International Criminal Court, [116], ICC Doc ICC-ASP/1/3 (2002), requiring ‘a course of conduct involving the multiple commission of acts’.
[44] Herman von Hebel and Darryl Robinson, ‘Crimes within the Jurisdiction of the Court’, in Roy S Lee (ed), The International Criminal Court, The Making of the Rome Statute (1999) 79, 95-97; Ryszard Piotrowicz, ‘Preempting the Protocol: Protecting the Victims and Punishing the Perpetrators of People Trafficking’ in Christine Kreuzer (ed), Frauenhandel – Menschenhandel – Organisierte Kriminalitaet (unpublished manuscript; copy held with author, 2004) 1, 25.
[45] Piotrowicz, above n 44, 25; but see de Than & Shorts, above n 39, [5-005]: ‘in crimes against humanity the victim is not being targeted as an individual per se but because that person forms part of the civilian population.’
[46] Piotrowicz, above n 44, 24.
[47] ‘DULE’ Opinion and Judgment (Prosecutor v Dusko Tadic) [1997] ICTY 1, para 654 (‘Tadic’).
[48] Cf Schabbas, above n 31, 44; de Than & Shorts, above n 39, para 5-004.
[49] Cf Cassese, above n 43, 83; Piotrowicz, above n 44, 26; de Than and Shorts, above n 39, [5-004].
[50] ICC Statute, art 7(2)(a)
[51] ICC Assembly of State Parties, Official Records of the Assembly of States Parties to the Rome Statute of the International Criminal Court, [116], ICC Doc ICC-ASP/1/3 (2002).
[52] Ibid [116], n 6.
[53] Tadic [1997] ICTY 1, para 654; De Than and Shorts, above n 39, [5-008].
[54] Prosecutor v Milorad Krnolejac Judgment [2002] ICTY 1, para 58.
[55] Cf Cassese, above n 43, 83; Piotrowicz, above n 44, 21; United Nations, Report of the International Law Commission on the work of its forty-eighth session, UN Doc A/51/10 A/51/358/Add.1 (1994), reprinted in United Nations, Yearbook of the International Law Commission, vol II, pt 2, [47], UN Doc A/CN.4/SER.A/1996/Add.1 (Part 2) (1996).
[56] Cassese, above n 43, 93.
[57] Cf Cassese, above n 43, 66.
[58] Cf Piotrowicz, above n 44, 25.
[59] ICC Statute, art 30(3)
[60] ICC Assembly of State Parties, Official Records of the Assembly of States Parties to the Rome Statute of the International Criminal Court, [116], ICC Doc ICC-ASP/1/3 (2002).
[61] de Than and Shorts, above n 39, [5-007]; cf Cassese, above n 43, 82.
[62] de Than and Shorts, above n 39, [5-007].
[63] ICC Statute, art 30(2)(a).
[64] Cf Cassese, above n 43, 82; Piotrowicz, above n 44, 21.
[65] Schabbas, above n 31, 45.
[66] Kelly D Askin, ‘Crimes within the Jurisdiction of the International Criminal Court’ (1999) 10 Criminal Law Forum 33, 43.
[67] ICC Assembly of State Parties, above n 60, [116].
[68] Cf Askin, above n 66, 40 with reference to Prosecutor v Dusko Tadic [1997] ICTY 1; see also von Hebel and Robinson, above n 44, 92-93; de Than and Shorts, above n 39, [5-003].
[69] Statute of the International Tribunal, 32 ILM 1203, art 5 (1993).
[70] Von Hebel & Robinson, above n 44, 93-94; Schabbas, above n 31, 45.
[71] Piotrowicz, above n 44, 25.
[72] ICC Statute, arts 7(2)(c).
[73] International Convention to Suppress the Slave Trade and Slavery, opened for signature 25 September [1927] LNTSer 19; 1926, 60 LNTS 253, art 1(1) (entered into force 9 March 1927); cf Askin, above n 66, 40 fn 31; de Than and Shorts, above n 39, [5-013].
[74] Prosecutor v Dragoljub Kunarac Radomir Kovac and Zoran Vukovic [2001] ICTY 2, paras 542-543.
[75] Piotrowicz, above n 44, 21-22.
[76] Askin, above n 66, 44.
[77] Askin, above n 66, 44-45
[78] Piotrowicz, above n 44, 22-23.
[79] Cf Askin, above n 66, 44.
[80] Piotrowicz, above n 44, 23.
[81] Piotrowicz, above n 44, 23-24.
[82] The Prosecutor of the Tribunal v Jean Paul Akayesu ICTR-96-4-I (September 1998) para 597, adopted in The ‘Celebici’ Case (Prosecutor v Zejnil Delalic Zdravko Mucic) [1998] ICTY 2, para 479; cf Cassese, above n 43, 78-79.
[83] ICC Statute, art 7(1)(g)
[84] See further, Askin, above n 66, 42.
[85] Piotrowicz, above n 44, 25.
[87] See Part III.A below.
[88] Cf Askin, above n 66, 35-36.
[89] See further Neil Boister, Penal Aspects of the UN Drug Conventions (Kluwer Law, 2001) 27.
[90] International Opium Convention, opened for signature 23 January [1922] LNTSer 29; 1912, 8 LNTS 187 (entered into force 31 December 1914).
[91] Patrick Robinson, ‘The Missing Crimes’ in Antonio Cassese, Paola Gaeta and John RWD Jones (eds), The Rome Statute of the International Criminal Court: A Commentary, vol 1 (2000) 497, 498.
[92] Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, opened for signature 20 December 1988, UN Doc E/CONF.82/15 Corr.1 (entered into force 11 November 1990).
[93] As cited in Robinson, above n 91, 500.
[94] Summary record of the 38th meeting: 6th Committee, held on Friday, 10 November 1989, New York, General Assembly, 44th session, UN Doc A/C.6/44/SR.38-41 (1989); United Nations General Assembly, Report of the 6th Committee, UN Doc A/44/770 (1989).
[95] Cf Neil Boister, ‘The Exclusion of Treaty Crimes From the Jurisdiction of the Proposed International Criminal Court: Law, Pragmatism, Politics’ (1998) 3 Journal of Armed Conflict Law 27, 27; McConville, above n 17, 90 with further references; and Robinson, above n 91, 499-500.
[96]United Nations, International criminal responsibility of individuals and entities engaged in illicit trafficking in narcotic drugs across national frontiers and other transnational criminal activities: establishment of an international criminal court with jurisdiction over such crimes, UN GAOR, 44th sess, Supp No 49, UN Doc A/44/39 (4 Dec 1989).
[97] United Nations, Draft Code of Crimes against the Peace and Security of Mankind, UN Doc A/CN.4/L.459/Add.1 (1991). On the 1991 draft see generally Lyal L Sunga, The Emerging System of International Criminal Law, Development in Codification and Implementation (1997).
[98] United Nations, Draft Statute for an International Criminal Court, Report of the International Law Commission at its forty-fifth Session, 48 UN GAOR Supp No 10, UN Doc A/48/10 (1993) 255-335; United Nations, Draft Statute for an International Criminal Court, Report of the International Law Commission on the work of its 46th session, 2 May-22 July 1994, UN GAOR, 49th sess, Supp No 10, [29-140], UN Doc A/49/10 (1994); reprinted in United Nations, Yearbook of the International Law Commission, vol II, pt 2, UN Doc A/CN.4/SER.A/1994/Add.1 (Part 2) (1994).
[99] United Nations, Report of the International Law Commission on the work of its forty-eighth session, 6 May to 26 July 1996, UN Doc A/51/10 (1994), reprinted in United Nations, Yearbook of the International Law Commission, vol II, pt 2, UN Doc A/CN.4/SER.A/1996/Add.1 (Part 2) (1996). On the 1996 draft see generally Sunga, above n 97, 13-15.
[100] Cf Sunga, above n 97, 217-218.
[101] See Part III.B below.
[102] Cf Boister, ‘The Exclusion of Treaty Crimes From the Jurisdiction of the Proposed International Criminal Court’, above n 95, 27-28 with further references.
[103] United Nations, Draft Statute for an International Criminal Court, Report of the International Law Commission on the work of its forty-sixth session, 2 May to 22 July 1994, [art 20], UN Doc A/49/10 (1994).
[104] United Nations, Report of the International Law Commission on the work of its forty-sixth session, 2 May to 22 July 1994, UN GAOR Supp No 10, UN Doc A/49/10, as cited in Robinson, above n 91, 501.
[105] United Nations, Draft Statute for an International Criminal Court, Report of the International Law Commission on the work of its forty-sixth session, 2 May to 22 July 1994, [n 147], UN Doc A/49/10 (1994), reprinted in United Nations, Yearbook of the International Law Commission, vol II, pt 2, [70-73], UN Doc A/CN.4/SER.A/1994/Add.1 (Part 2) (1994); cf Boister, above n 95, 28; McConville, above n 17, 91-92; Robinson, above n 91, 501; Sunga, above n 97, 21-25.
[106] United Nations, Yearbook of the International Law Commission,above n 105; Cf Sunga, above n 97, 22.
[107] Ibid.
[108] Ibid.
[109] Ibid.
[110] Boister, Penal Aspects of the UN Drug Conventions, above n 88, 538; Boister, above n 95, 31, 33; see Robinson, above n 91, 503-504, with a reference to the official documentation at 501 n 12. See also Sunga, above n 97, 218-217.
[111] United Nations, Report of the International Law Commission on the work of its forty-eighth session, 6 May to 26 July 1996, UN Doc A/51/10 (1994), reprinted in United Nations, Yearbook of the International Law Commission, vol II, pt 2, UN Doc A/CN.4/SER.A/1996/Add.1 (Part 2) (1996).
[112] Ibid.
[113] UN Doc A/Conf.183/C.1/lL.48 (3 July 1998). See also Robinson, above n 91, 504.
[114] Kittichaisaree, above n 31, 226; Robinson, above n 91, 505-506; von Hebel and Robinson, above n 44, 80-81, 85-87; and McConville, above n 17, 93.
[115] United Nations, Final Act of the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Resolution E, UN Doc A/CONF.183/10 (1998).
[116] Robinson, above n 91, 505-506.
[117] Boister, above n 89, 539.
[118] United Nations Preparatory Committee on the Establishment of an International Criminal Court, Summary of the Proceedings of the Preparatory Committee during the period 25 March-12 April 1996, [paras 71-72], UN Doc A/AC.249/CRP.3/Rev.2 (1996) as cited in Boister, above n 89, 541; cf McConville, above n 17, 97.
[119] Cf M Cherif Bassiouni, ‘Universal Jurisdiction for International Crimes: Historical Perspectives and Contemporary Practice’ (2001) 42 Virginia Journal of International Law 81, 106; Boister, above n 95, 30.
[120] Boister, above n 89, 539-540; Kittichaisaree, above n 31, 226; Robinson, above n 91, 501, 503.
[121] Cited in Boister, above n 95, 28-29 referring to Agenda Item 150, the Establishment of an International Criminal court, in the Sixth Committee (23 Oct 1997).
[122] Cf Robinson, above n 91, 502-503, 507.
[123] Cf Boister, above n 95, 30; Robinson, above n 91, 507-510.
[124] Robinson, above n 91, 507.
[125] Ibid 509-510.
[126] Cf McConville, above n 17, 91-92, 98-99; Barbara M Yarnold, “Doctrinal Basis for the International Criminalisation Process: (1994) 8 Temple ICLR 85, 103. See also the comments by Robinson, above n 91, 502: ‘The length to which the ILC went to ensure that drug crimes had the required level of gravity for inclusion in the Statute’s is remarkable.
[127] Cf the views expressed in United Nations, Preparatory Committee on the Establishment of an International Criminal Court, Summary of the Proceedings of the Preparatory Committee during the period 25 March to 12 April 1996, [paras 71-72], UN Doc A/AC.249/CRP.3/Rev.2 (1996); Sunga, above n 97, 21, 206.
[128] Boister, above n 89, 542-543.
[129] Boister, above n 95, 37.
[130] United Nations, Preparatory Committee on the Establishment of an International Criminal Court, Summary of the Proceedings of the Preparatory Committee during the period 25 March to 12 April 1996, [paras 71-72], UN Doc A/AC.249/CRP.3/Rev.2 (1996); Boister, above n 89; Boister, above n 95, 35; von Hebel and Robinson, above n 44, 86; Robinson, above n 91, 503.
[131] McConville, above n 17, 98-99.
[132] Cf Robinson, above n 91, 501.
[133] Boister, above n 95, 36, 38.
[134] See also the comment made by Boister, above n 95, 34: ‘Those opposed to the inclusion of treaty crimes with the jurisdiction the ICC cite these inadequacies as reasons for exclusion; those in favour of ICC jurisdiction over such crimes cites these inadequacies as reasons for exclusion’.
[135]United Nations, Draft Code of Crimes against the Peace and Security of Mankind, UN Doc A/CN.4/L.459/Add.1 (1991).
[136] Robinson, above n 91, 522-523; Sunga, above n 97, 224-225, 226.
[137] Kittichaisaree, above n 31, 229.
[138] This observation is shared by Silverman, An Appeal to the United Nations: Terrorism must come within the jurisdiction of an international criminal court (1997) cited in Boister, above n 95, 31; and by de Than and Shorts, above n 39, [9-001]: ‘By committing the crime of piracy the offenders have put themselves outside the pale and protection of all states. … As a result, it is now universally acknowledged that all States possess the jurisdiction and responsibility to arrest and prosecute those involved in piratical acts.’
[139] Cf Boister, above n 89, 539; Boister, ‘ above n 95, 34-35; McConville, above n 17, 98-99.
[140] Askin, above n 66, 58.
[141] Bassiouni, above n 119, 82-83.
[142] Sunga, above n 97, 219; Boister, above n 95, 39.
[143] Boister, above n 95, 37, 39; cf Sunga, above n 97, 206.
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