The Territorial Jurisdiction of the International Criminal Court 9781107034273, 1107034272

Table of contents :
Cover
Half title
Title
Copyright
Contents
Foreword
Acknowledgements
Table of Cases
Table of treaties and selected other instruments
List of selected acronyms and abbreviations
1 Introduction
1.1 Objective
1.2 Structure and approach
2 Definitions and State territorial jurisdiction
2.1 Introduction
2.2 The territorial jurisdiction of the International Criminal Court
2.3 The Lotus Case: territorial jurisdiction in international law
2.4 Territoriality and territorial fictions
2.4.1 Subjective territoriality
2.4.2 Objective territoriality/ubiquity
2.4.2.1 Scope; defining constituent elements; intent, modes of participation, attempt and preparatory acts
2.4.2.2 Ubiquity
2.4.2.3 The effects doctrine
2.5 Jurisdictional rule of reason in international law and the International Criminal Court
3 The preparatory works of Article 12(2)(a)
3.1 Purpose of the chapter; sources; caveats; structure
3.2 The International Law Commission’s work on the Statute of an International Criminal Court; territorial jurisdiction
3.3 The Ad Hoc Committee (1995) and the Preparatory Committee (1996-1998)
3.4 Negotiations at the Rome Conference
3.5 Conclusions
4 Instruments of interpretation of the Rome Statute and Article 12(2)(a)
4.1 Introduction
4.2 Interpretation of the Rome Statute in accordance with the Vienna Convention on the Law of Treaties; contextual and teleological interpretation
4.3 Interpretation of the Rome Statute in accordance with the Statute’s rules of interpretation
4.3.1 Interpretation of Article12(2)(a) of the Rome Statute in accordance with Article21(3)
4.3.2 Interpretation of Article12(2)(a) of the Rome Statute in accordance with the principle of legality
4.4 Interpretation of the Rome Statute in accordance with the legal nature of the provision
4.5 Conclusion
5 ‘The conduct in question’
5.1 Introduction
5.1.1 The problem: post-Rome negotiations in the 2008-2009 Aggression Working Group
5.1.2 The doctrinal conditions
5.1.2.1 State territory as connecting link
5.1.2.2 The inherent power of the Court to decide on its jurisdiction (compétence de la compétence/kompetenz kompetenz)
5.1.2.3 Interpretation of ICC jurisdiction, delegation of authority and limitations
5.1.2.4 The usefulness of international law rules
5.1.2.5 The usefulness of national law
5.2 ‘Conduct in question’ as conduct, including act or omission
5.3 ‘Conduct in question’ as ‘crimes in question’
5.4 Interim conclusion
5.5 Localization of criminal activity
5.5.1 Delimiting the Court’s territorial jurisdiction on the basis of consequences or ubiquity and the application of rules and principles of international law
5.5.2 Delimiting the Court’s territorial jurisdiction on the basis of consequences or ubiquity and the application of general principles of law
5.5.3 Delimiting the Court’s territorial jurisdiction on the basis of consequences or ubiquity and the application of human rights rules
5.6 Localization of crimes committed over the internet
5.6.1 Cybercrimes and crimes committed through the internet as Rome Statute crimes
5.6.2 Searching for the minimum common denominator for the localization of online criminal activity
5.6.2.1 Treaty law: the 2001 Cybercrime Convention
5.6.2.2 EU instruments
5.6.2.3 National law
5.6.3 Conclusion
5.6.4 The territorial jurisdiction of the International Criminal Court over incitement to commit genocide through online activity
5.7 Conclusion
6 The effects doctrine
6.1 The problem and the structure of the argument: between policy and law
6.2 Should the Court adopt the effects doctrine of jurisdiction? The policy approach
6.3 Can the Court adopt the effects doctrine? The legal implications
6.3.1 Criminal jurisdiction: the form of liability
6.3.1.1 National legislation
6.3.1.2 The Nippon Case
6.3.1.3 Conclusion
6.3.2 Territorial jurisdiction
6.3.3 Over-regulation and jurisdictional conflicts
6.3.4 Pacta tertiis: violation of sovereignty of States not Parties
6.3.5 Practical aspects: collection of evidence
6.3.6 Delimiting effects: qualifications
6.3.7 Jurisdictional reasonableness and the ICC Statute: cases, situations and Mbarushimana
6.4 Effects, cases and situations
6.5 Conclusion
7 Belligerent occupation and ICC territorial jurisdiction
7.1 Introduction
7.2 The problem
7.3 Basic principles and rules
7.4 The application of Article12(2)(a) in State Party territories occupied by another State Party
7.5 The application of Article12(2)(a) in State Party territories occupied by a State not Party
7.6 The application of Article12(2)(a) in the territory of a State not Party occupied by a State Party
7.6.1 ‘[W]ithin the territory’ meaning ‘under their control’ in Article12(2)(a) Rome Statute? The effect of Article21(3) Rome Statute; The policy argument
7.6.2 ‘[W]ithin the territory’ meaning ‘under their control’ in Article12(2)(a) Rome Statute? The effect of Article21(3) Rome Statute; The legal argument
7.6.2.1 An example
7.6.2.2 The main issue
7.7 Conclusions
8 Challenges to the territorial jurisdiction of the Court
8.1 Challenges to the jurisdiction of the Court; definitions
8.2 Challenges to the jurisdiction of the Court; the general procedural framework
8.2.1 Standing to file a challenge to the Court’s jurisdiction and participate in the proceedings
8.2.2 The form of the challenge, page and time limits
8.2.2.1 The earliest opportunity/the identification of a case
8.2.2.2 The commencement of the trial
8.2.2.3 Scheduling orders
8.2.2.4 Page limits
8.2.3 Burden and standard of proof
8.2.4 Suspension of investigation
8.3 Challenges to the jurisdiction of the Court ratione loci
8.4 Procedural stages
8.4.1 Pre-Trial Chamber
8.4.2 Trial Chamber
8.4.3 Appeals Chamber
8.5 Concluding remarks
9 Concluding remarks
Bibliography
Index

Citation preview

THE TER R ITOR IAL JUR ISDICTION OF THE INTERNATIONAL CR IMINAL COUR T

There are many variables of territoriality available to national courts under contemporary international law. Does the same apply to the International Criminal Court? And, if so, what are the limits to the teleological expansion of the Court’s territorial jurisdiction as regards, for example, the partial commission of a crime in State not Party territory, crimes committed over the internet or crimes committed in occupied territories? Michail Vagias’ analysis of the law and procedure surrounding the territorial jurisdiction of the Court examines issues such as the application of localization theories of territoriality and the means of interpretation for Article 12(2)(a); the principle of legality (nullum crimen sine lege) and human rights law for the interpretation of jurisdictional provisions; comp´etence de la comp´etence; crimes committed over the internet; and the procedure for jurisdictional objections. michail vagias is a lecturer at the Hague University of Applied Sciences and at Nyenrode New Business School, Amsterdam.

THE TER R ITOR IAL JUR ISDICTION OF THE INTERNATIONAL CR IMINAL COUR T MICHAIL VAGIAS Foreword by JOHN DUGARD

University Printing House, Cambridge CB2 8BS, United Kingdom Cambridge University Press is part of the University of Cambridge. It furthers the University’s mission by disseminating knowledge in the pursuit of education, learning and research at the highest international levels of excellence. www.cambridge.org Information on this title: www.cambridge.org/9781107034273  c Michail Vagias 2014

This publication is in copyright. Subject to statutory exception and to the provisions of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press. First published 2014 A catalogue record for this publication is available from the British Library Library of Congress Cataloguing in Publication data Vagias, M. (Michales) author. The territorial jurisdiction of the International Criminal Court / Michail Vagias. p. cm. Includes bibliographical references and index. ISBN 978-1-107-03427-3 (hardback) 1. International Criminal Court. 2. Jurisdiction (International law) 3. International criminal courts. I. Title. KZ7375.V34 2014 341.4ʹ2 – dc23 2013037553 ISBN 978-1-107-03427-3 Hardback Cambridge University Press has no responsibility for the persistence or accuracy of URLs for external or third-party internet websites referred to in this publication, and does not guarantee that any content on such websites is, or will remain, accurate or appropriate.

CONTENTS

Foreword: John Dugard page ix Acknowledgements xii Table of cases xiv Table of treaties and selected other instruments xxxi List of selected acronyms and abbreviations xxxvi 1

Introduction

1

1.1 Objective 6 1.2 Structure and approach

2

9

Definitions and State territorial jurisdiction

12

2.1 2.2 2.3 2.4

Introduction 12 The territorial jurisdiction of the International Criminal Court 12 The Lotus Case: territorial jurisdiction in international law 13 Territoriality and territorial fictions 13 2.4.1 Subjective territoriality 16 2.4.2 Objective territoriality/ubiquity 17 2.4.2.1 Scope; defining constituent elements; intent, modes of participation, attempt and preparatory acts 17 2.4.2.2 Ubiquity 22 2.4.2.3 The effects doctrine 24 2.5 Jurisdictional rule of reason in international law and the International Criminal Court 31

3

The preparatory works of Article 12(2)(a)

37

3.1 Purpose of the chapter; sources; caveats; structure 37 3.2 The International Law Commission’s work on the Statute of an International Criminal Court; territorial jurisdiction 41 3.3 The Ad Hoc Committee (1995) and the Preparatory Committee (1996–1998) 47 3.4 Negotiations at the Rome Conference 51 3.5 Conclusions 59

v

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contents

4

Instruments of interpretation of the Rome Statute and Article 12(2)(a) 61 4.1 Introduction 61 4.2 Interpretation of the Rome Statute in accordance with the Vienna Convention on the Law of Treaties; contextual and teleological interpretation 61 4.3 Interpretation of the Rome Statute in accordance with the Statute’s rules of interpretation 64 4.3.1 Interpretation of Article 12(2)(a) of the Rome Statute in accordance with Article 21(3) 64 4.3.2 Interpretation of Article 12(2)(a) of the Rome Statute in accordance with the principle of legality 67 4.4 Interpretation of the Rome Statute in accordance with the legal nature of the provision 73 4.5 Conclusion 74

5

‘The conduct in question’

79

5.1 Introduction 79 5.1.1 The problem: post-Rome negotiations in the 2008–2009 Aggression Working Group 79 5.1.2 The doctrinal conditions 82 5.1.2.1 State territory as connecting link 83 5.1.2.2 The inherent power of the Court to decide on its jurisdiction (comp´etence de la comp´etence/ kompetenz kompetenz) 83 5.1.2.3 Interpretation of ICC jurisdiction, delegation of authority and limitations 85 5.1.2.4 The usefulness of international law rules 89 5.1.2.5 The usefulness of national law 90 5.2 ‘Conduct in question’ as conduct, including act or omission 91 5.3 ‘Conduct in question’ as ‘crimes in question’ 96 5.4 Interim conclusion 100 5.5 Localization of criminal activity 101 5.5.1 Delimiting the Court’s territorial jurisdiction on the basis of consequences or ubiquity and the application of rules and principles of international law 102 5.5.2 Delimiting the Court’s territorial jurisdiction on the basis of consequences or ubiquity and the application of general principles of law 111 5.5.3 Delimiting the Court’s territorial jurisdiction on the basis of consequences or ubiquity and the application of human rights rules 124 5.6 Localization of crimes committed over the internet 130

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5.6.1 Cybercrimes and crimes committed through the internet as Rome Statute crimes 135 5.6.2 Searching for the minimum common denominator for the localization of online criminal activity 139 5.6.2.1 Treaty law: the 2001 Cybercrime Convention 140 5.6.2.2 EU instruments 142 5.6.2.3 National law 143 5.6.3 Conclusion 151 5.6.4 The territorial jurisdiction of the International Criminal Court over incitement to commit genocide through online activity 153 5.7 Conclusion 158

6

The effects doctrine

162

6.1 The problem and the structure of the argument: between policy and law 162 6.2 Should the Court adopt the effects doctrine of jurisdiction? The policy approach 163 6.3 Can the Court adopt the effects doctrine? The legal implications 171 6.3.1 Criminal jurisdiction: the form of liability 172 6.3.1.1 National legislation 172 6.3.1.2 The Nippon Case 178 6.3.1.3 Conclusion 180 6.3.2 Territorial jurisdiction 183 6.3.3 Over-regulation and jurisdictional conflicts 185 6.3.4 Pacta tertiis: violation of sovereignty of States not Parties 6.3.5 Practical aspects: collection of evidence 188 6.3.6 Delimiting effects: qualifications 190 6.3.7 Jurisdictional reasonableness and the ICC Statute: cases, situations and Mbarushimana 196 6.4 Effects, cases and situations 201 6.5 Conclusion 205

7

Belligerent occupation and ICC territorial jurisdiction 7.1 7.2 7.3 7.4

Introduction 209 The problem 210 Basic principles and rules 212 The application of Article 12(2)(a) in State Party territories occupied by another State Party 214 7.5 The application of Article 12(2)(a) in State Party territories occupied by a State not Party 220

187

209

viii

contents 7.6 The application of Article 12(2)(a) in the territory of a State not Party occupied by a State Party 224 7.6.1 ‘[W]ithin the territory’ meaning ‘under their control’ in Article 12(2)(a) Rome Statute? The effect of Article 21(3) Rome Statute; The policy argument 224 7.6.2 ‘[W]ithin the territory’ meaning ‘under their control’ in Article 12(2)(a) Rome Statute? The effect of Article 21(3) Rome Statute; The legal argument 230 7.6.2.1 An example 230 7.6.2.2 The main issue 232 7.7 Conclusions 241

8

Challenges to the territorial jurisdiction of the Court 8.1 Challenges to the jurisdiction of the Court; definitions 243 8.2 Challenges to the jurisdiction of the Court; the general procedural framework 249 8.2.1 Standing to file a challenge to the Court’s jurisdiction and participate in the proceedings 250 8.2.2 The form of the challenge, page and time limits 254 8.2.2.1 The earliest opportunity/the identification of a case 255 8.2.2.2 The commencement of the trial 259 8.2.2.3 Scheduling orders 262 8.2.2.4 Page limits 263 8.2.3 Burden and standard of proof 263 8.2.4 Suspension of investigation 266 8.3 Challenges to the jurisdiction of the Court ratione loci 269 8.4 Procedural stages 270 8.4.1 Pre-Trial Chamber 270 8.4.2 Trial Chamber 274 8.4.3 Appeals Chamber 274 8.5 Concluding remarks 281

9

Concluding remarks Bibliography Index 329

287

282

243

FOREWORD

The International Criminal Court (ICC) has been in existence for over a decade. Hopes that it would end impunity and secure international criminal justice have not been met. To a large extent this is due to the limited jurisdictional powers conferred upon the Court. In terms of the Rome Statute the Court has jurisdiction only over crimes where ‘conduct in question occurred’ in the territory of a State Party or where the person accused of the crime is a national of a State Party. Suggestions made at the Rome Conference that adopted the Statute that the Court should have universal jurisdiction, which would have given the Court competence to try a person for any international crime irrespective of where the crime was committed or by whom it was committed, were not accepted. A type of universal jurisdiction was introduced to allow the Security Council, acting under Chapter VII of the UN Charter, to refer a situation in which international crimes appear to have been committed to the Prosecutor of the Court for investigation and possible prosecution. But as this is a political decision subject to the veto of the permanent members of the Security Council it is a very narrow basis for jurisdiction, as appears from the fact that it has been invoked only twice in ten years, in the cases of Darfur and Libya. In effect, this jurisdictional structure means that the ICC has jurisdiction only over international crimes committed in in the territory of State Parties, by the nationals of State Parties or in the territory of non-State Parties that do not have the support of one member of the Security Council. States that are not committed to ending impunity for international crimes and that are not parties to the Rome Statute – of which there are some seventy in the world – are therefore beyond the reach of the ICC. The Rome Statute was a treaty that was hastily drafted and agreed to at a brief moment in time of idealism and enthusiasm for international criminal justice. States committed to the ideal of an international criminal court and an effective non-governmental organisation (NGO) community were acutely aware of the necessity of reaching agreement on ix

x

foreword

a statute for an international criminal court in the six weeks set aside for the conference in Rome, lest this opportunity be lost forever. The result is an imperfect treaty that is unlikely to be amended substantially. The task of persuading some 120 states to agree to an amendment expanding jurisdiction is remote. This means that the only way to expand the reach of international criminal justice is to expand the jurisdictional provisions of the Rome Statute by means of interpretation. This requires the Prosecutor and the Court itself to construe these provisions as generously as possible within the framework of the law. Unfortunately, this has not occurred to date. Successive Prosecutors have preferred to avoid questions of jurisdiction by investigating situations referred to the Court by State Parties involving crimes committed in their own territories or situations referred to the Court by the Security Council. The Court, too, has been largely deferential to the interests of States in not extending the jurisdiction of the Court. This state of affairs presents a challenge to scholars to suggest ways in which the jurisdictional reach of the ICC may be expanded to advance the cause of the suppression of impunity, to which the Rome Statute is committed. Michail Vagias has met this challenge in his study on the territorial jurisdiction of the ICC which, in a scholarly and carefully researched manner, presents a vision for a Court with wider powers that might be achieved by means of creative interpretation, within the legitimate parameters of treaty interpretation, with no amendment to the Rome Statute. The first part of Vagias’ study is designed to show that the ICC has an inherent power to determine its own jurisdiction. This is done by a careful consideration of the rules of jurisdiction, the history of the drafting of the Rome Statute and the principles of treaty interpretation in the context of national and international jurisprudence and scholarly writings. Vagias then turns to his central thesis, that a teleological interpretation of Article 12(2)(a)of the Court’s Statute, dealing with territorial jurisdiction, would allow the Court to exercise jurisdiction over crimes whose effect is felt in the territory of a State Party. In reaching this conclusion, he is guided by the laws and judicial decisions of States, particularly the United States in the enforcement of its anti-trust laws, which permit their courts to exercise civil and criminal jurisdiction over economic crimes, such as price-fixing and cartel agreements, that are planned and executed abroad but whose effect is felt in the forum State. Vagias argues that there is a greater moral justification for extending the reach of international criminal law to include the effects of war crimes, crimes against humanity and genocide than there is to do so in the case of economic crimes. There can

foreword

xi

be no comparison, he argues, between the effects of the murder or torture of thousands of individuals committed in a foreign state and the effects of price-fixing committed in a foreign state. Vagias’ proposal would, for example, give the ICC jurisdiction over a situation in which a massacre occurred in a State not Party to the Rome Statute that resulted in an exodus of refugees to a neighbouring State party to the Rome Statute that required the latter State to take measures to accommodate and care for the refugees. Suggestions that this would introduce universal jurisdiction through the back door are unfounded, as the application of the effects doctrine to international crime would still require some tangible connection between the crime and the State Party’s territory. Another situation that Vagias addresses is the question of jurisdiction over international crimes committed in occupied States. Here, he examines situations in which the occupied State is a Party to the Rome Statute, and where the occupying State either is or is not a Party to the Statute. Few will disagree with his conclusion that in such cases the Court will have jurisdiction over crimes committed in the occupied territory. The situation in which international crimes are committed in a non-State Party is less clear, as Vagias concedes. This section contains an insightful examination of the nature and consequences of belligerent occupation in the context of the territorial jurisdiction of the ICC. Disappointment has been expressed over the failure of the ICC to achieve more than it has done in its first decade of operation. It should, however, be remembered that the ICC is still, relatively, an institutional infant seeking to find its way in life and to establish the bounds of its possibilities. What it needs at present is not dismissive criticism but constructive suggestions as to how it might improve its performance. Vagias makes proposals in this study which go to the root of the Court’s possibilities in respect of jurisdiction. They may be bold but they are carefully reasoned, comply with accepted rules of treaty interpretation and enjoy support from both national and international jurisprudence. If followed, they would result in an expanded jurisdiction for the Court. They would also serve to deter non-State Parties from actions involving international crimes whose effects might be felt in neighbouring States Party to the Rome Statute. This book contains an innovative and creative message that could advance the principal concerns of the ICC. It is in the best traditions of constructive scholarship. john dugard The Hague

ACKNOWLEDGEMENTS

This book is based on research conducted for my PhD thesis, entitled ‘The Territorial Jurisdiction of the International Criminal Court’ and successfully defended at the Faculty of Law of Leiden University on 25 May 2011. The work has been rewritten and updated till 28 February 2013. The research was originally funded in part by the Hellenic Scholarship Foundation (2007–2010). It was also supported in many ways by The Hague University of Applied Sciences, and in particular Program Managers Ernst van Bemmelen van Gent, Hilde Cadenau and Barbara Heezen-Gerritsen. I am thankful for their support. From an academic perspective, first and foremost, I am very grateful to John Dugard and Larissa van den Herik for their guidance as my PhD Supervisors throughout all these years. I was fortunate to have a unique combination of international lawyers overseeing my work, challenging me at every step, keeping me focused and optimistic. It has been an honour and a privilege to work with them. The members of my Defence Committee have been influential in the post-2011 work on this book. Their instructive comments and insightful questions gave me food for thought and led to important additions after the defence. I want to thank especially for their written comments Carsten Stahn (on procedure) and Cedric Ryngaert (on the rule of reason, among many others). Discussions on the topic – with a pinch of encouragement and a dose of scepticism when needed – were always possible with some of the representatives of my esteemed alma mater, Democritus University Law School: Constantine Antonopoulos, Paroula Naskou-Perraki and the bridge between Komotini and Leiden, Thomas Skouteris. This work and my life have greatly benefited from their contributions. My students in The Hague inspired my pen and kept me firmly in touch with reality. Among them, a special thank you is reserved for my research assistants, Olivia Flasch, Raluca Popescu and especially Janos Ferencz, who were instrumental in the final presentation of this work. xii

acknowledgements

xiii

I am grateful for their timely assistance and dedication. On that note, my gratitude goes also to Nienke van Schaverbeke, Elizabeth Spicer and Richard Woodham of Cambridge University Press for their editorial assistance – and forbearance. I would also like to thank Eric Koppe and Philip van Tongeren of T.M.C. Asser Press for their kind permission to use parts of my earlier publications. The staff of the Peace Palace Library – special thanks to Niels van Tol – and Leiden Law Library have always been very helpful. On a personal note, the Teneketzis Family has a special place in my heart; Athena, Anastasios, Cristie, Dimosthenis and Barbara feel always close to me. The help of my friends was nothing short of indispensable; Ioannis, Theo, Axelle and Peter, Geri and Daniel helped in too many ways to number; they know all about this book by now . . . Finally, I am proud to have in my family Maria Kirtsani, a great teacher on the art of living. For my sister Efi and my mother Aliki, I have no words to express my love. This book is dedicated to them. Michail Vagias The Hague, 1 March 2013

TABLE OF CASES

Permanent Court of International Justice Case Concerning Certain German Interests in Polish Upper Silesia (Merits) [1926] PCIJ Rep. Ser. A, No. 7; 200 Case Concerning Legality of Use of Force (Serbia and Montenegro v. Belgium) (Preliminary Objections) (Separate Opinion of Judge Kre´ca) [2004] ICJ Rep. 279; 200 The Case of the S.S. Lotus (France v. Turkey) [1927] PCIJ Rep. Ser. A, No. 10; 13, 17–18, 31, 86, 102–103, 108, 111, 159, 164, 204

International Court of Justice Advisory Opinion on Certain Expenses of the United Nations (Article 17 paragraph 2 of the Charter) [1962] ICJ Rep. 151; 39 Advisory Opinion on Conditions of Admission of a State to Membership in the United Nations [1948] ICJ Rep. 57; 39 Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt, Advisory Opinion [1980] ICJ Rep. 89; 8, 36, 86, 88 Application of the Convention of 1902 Governing the Guardianship of Infants (Netherlands v. Sweden) (Separate Opinion of Judge Spender) [1958] ICJ Rep. 121; 91 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro) (Judgment) [2007] ICJ Rep. 43; 105, 153 Application of the International Convention on Elimination of All Forms of Racial Discrimination (Georgia v. Russia) (Provisional easures Order) [2008] ICJ Rep. 24; 209, 238–240 Armed Activities in Territory of Congo (Democratic Republic of the Congo v. Uganda) (Merits) [2005] ICJ Rep. 168; 215, 222, 239 Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium) (Judgment) [2002] ICJ Rep. 3; 24, 29, 102, 105, 170, 216 Barcelona Traction Case (Belgium v. Spain) (Judgment) [1970] ICJ Rep. 3; 186

xiv

table of cases

xv

Case Concerning Certain Criminal Proceedings in France (Democratic Republic of the Congo v. France) (Pleadings) [2003] ICJ Rep. 4; 33 Case Concerning Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States of America) (Judgment) [1986] ICJ Rep. 14; 35, 265 Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France) (Judgment) [2008] ICJ Rep. 177; 37, 90–91 Competence of the General Assembly for the Admission of a State to the United Nations [1950] ICJ Rep. 4; 39 Jurisdictional Immunities of the State (Germany v. Italy, Greece intervening) [2012] ICJ Rep. 1; 71, 74, 126, 244 Legal Consequences for States of Continued Presence of South Africa in Namibia (Southwest Africa) (Advisory Opinion) [1971] ICJ Rep. 16; 211 Legal Consequences of Construction of Wall in Occupied Palestinian Territory (Advisory Opinion) [2004] ICJ Rep. 136; 213, 224, 239 Legality of the Use by a State of Nuclear Weapons in Armed Conflict (Advisory Opinion) [1996] ICJ Rep. 66; 73, 86 Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain) (Judgment) [1995] ICJ Rep. 6; 38 Oil Platforms (Islamic Republic of Iran v. United States of America) (Judgment) [2003] ICJ Rep. 161; 35, 89 Rights of Nationals of the United States of America in Morocco (France v. United States of America) (Judgment) [1952] ICJ Rep. 212; 91 Trial of Pakistani Prisoners of War (Pakistan v. India) (Request for Indication of Provisional Measures) [1973] ICJ Rep. 328; 170

International Criminal Tribunal for the Former Yugoslavia ICTY, Prosecutor v. Radoslav Brđanin (Judgment) IT-99–36-T (1 September 2004); 153 ICTY, Prosecutor v. Zejnil Delali´c et al. (Celebici) (Judgment) IT-96–21-T (16 November 1998); 71, 75, 99 ICTY, Prosecutor v. Miroslav Deronji´c (Judgment) IT-02–61 (30 March 2004) (Dissenting Opinion of Judge Schomburg); 122 ICTY, Prosecutor v. Drazen Erdemovi´c (Separate and Dissenting Opinion of Judge Cassese) IT-96–22-A (7 October 1997); 90, 122 ICTY, Prosecutor v. Anto Furundˇzija (Judgement) IT-95–17/1-T (10 December 1998); 121 ICTY, Prosecutor v. Dragoljub Kunarac et al. (Judgment) IT-96–23-T (22 February 2001); 123 ICTY, Prosecutor v. Zoran Kupreˇski´c (Judgment) IT-95–16-T (14 January 2000); 119 ICTY, Prosecutor v. Milan Milutinovi´c et al. (Decision on Dragoljub Ojdani´c’s Motion Challenging Jurisdiction – Joint Criminal Enterprise) IT-99–37-AR72 (21 May 2003); 248

xvi

table of cases

ICTY, Prosecutor v. Milan Milutinovi´c, Nikola Sˇainovi´c, Dragoljub Ojdani´c, Nebojsa Pavkovi´c, Vladimir Lazarevi´c and Sreten Luki´c (Decision on Dragoljub Ojdani´c’s Motion to Prohibit Witness Proofing) IT-05–87-T (12 December 2006); 115 ICTY, Prosecutor v. Duˇsko Tadi´c (Decision on Defence Motion for Interlocutory Appeal on Jurisdiction) IT-94–1-I (2 October 1995); 77, 83, 117 ICTY, Prosecutor v. Duˇsko Tadi´c (Judgment) IT-94–1-A (15 July 1999); 39, 77, 117

International Criminal Tribunal for Rwanda Prosecutor v. Jean-Paul Akayesu (Judgment) ICTR-96–4-T (2 September 1998); 153–7 Prosecutor v. Simon Bikindi (Judgement and Sentence) ICTR-01–72-T (2 December 2008); 153 Prosecutor v. Callixte Kalimanzira (Judgment) ICTR-05–88-T (22 June 2009); 153–5 Prosecutor v. Ferdinand Nahimana, Jean-Bosco Barayagwiza and Hassan Ngeze (Judgment) ICTR-99–52-A (28 November 2007), (the Media Appeal); 153–4, 156 Prosecutor v. Georges Ruggiu (Judgement and Sentence) ICTR-97–21–1 (1 June 2000); 156

International Criminal Court Prosecutor v. Omar Hassan Ahmad Al-Bashir (Decision on the Prosecution’s Application for a Warrant of Arrest Against Omar Hassan Ahmad Al-Bashir) ICC-02/05–01/09–3 (4 March 2009); 64, 68–69, 80, 89, 96, 109, 212, 250 Prosecutor v. Omar Hassan Ahmad Al-Bashir (Decision pursuant to Article 87(7) of the Rome Statute on the Failure by the Republic of Malawi to Comply with the Cooperation Requests Issued by the Court with Respect to the Arrest and Surrender of Omar Hassan Ahmad Al-Bashir) ICC-02/05–01/09–139) (12 December 2011); 171, 223 Prosecutor v. Jean-Pierre Bemba Gombo (Warrant of Arrest for Jean-Pierre Bemba Gombo replacing the Warrant of Arrest issued on 23 May 2008) ICC-01/ 05–01/08–15-tEng (10 June 2008); 282 Prosecutor v. Jean-Pierre Bemba Gombo (Decision on the Prosecutor’s Application for a Warrant of Arrest Against Jean-Pierre Bemba Gombo) ICC-01/05–01/08–14-tENG (17 July 2008); 283 Prosecutor v. Jean-Pierre Bemba Gombo (Decision on Application for Interim Release) ICC-01/05–01/08 (20 August 2008); 66 Prosecutor v. Jean-Pierre Bemba Gombo (Decision Adjourning the Hearing pursuant to Article 67(7)(c)(ii) of the Rome Statute) ICC-01/05–01/08 (3 March 2009); 62–63, 77, 80, 205 Prosecutor v. Jean-Pierre Bemba Gombo (Decision pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo) ICC- 01/05–01/08–424 (15 June 2009); 264, 283

table of cases

xvii

Prosecutor v. Jean-Pierre Bemba Gombo (Decision on the Admissibility and Abuse of Process Challenges) ICC-01–05/01–08 (24 June 2010); 260–261 Prosecutor v. Jean-Pierre Bemba Gombo (Decision on the Request of Mr Bemba to Give Suspensive Effect to the Appeal Against the ‘Decision on the Admissibility and Abuse of Process Challenges’) ICC-01/05–01/08–817 (OA 3) (9 July 2010); 278 Prosecutor v. Saif Al-Islam Gaddafi and Abdullah Al-Senussi (Decision on Libya’s Postponement of the Execution of the Request for Arrest and Surrender of Abdullah Al-Senussi pursuant to Article 95 of the Rome Statute and Related Defence Request to refer Libya to the UN Security Council) ICC-01/11–01/11-354 (14 June 2013); 258–259 Prosecutor v. Laurent Koudou Gbagbo (Decision Requesting Observations from the Parties on the Schedule of the Confirmation of Charges Hearing) ICC-02/ 11–01/11–107 (4 May 2012); 262 Prosecutor v. Laurent Koudou Gbagbo (Decision on the Conduct of the Proceedings Following the Defence Challenge to the Jurisdiction of the Court pursuant to Article 19 of the Rome Statute) ICC-02/11–01/11–153 (15 June 2012); 249, 273 Prosecutor v. Laurent Koudou Gbagbo (Decision on the ‘Corrigendum of the Challenge to the Jurisdiction of the International Criminal Court on the Basis of Articles 12(3), 19(2), 21(3), 55 and 59 of the Rome Statute Filed by the Defence for President Gbagbo’ (ICC-02/11–01/11-129)) ICC-02/11–01/11–212 (15 August 2012); 201, 243–4, 246 Prosecutor v. Laurent Koudou Gbagbo (Directions on the Submissions of Observations) ICC-02/11–01/11–236 (31 August 2012); 279–280 Prosecutor v. Laurent Koudou Gbagbo (Decision on Observations Submitted by the ˆ d’lvoire) ICC-02/11–01/11–254 (1 October 2012); 263 Republic of Cote Prosecutor v. Laurent Koudou Gbagbo (Decision on Observations Submitted by OPCV on Behalf of Victims) ICC-02/11–01/11–256 (5 October 2012); 279 Prosecutor v. Laurent Koudou Gbagbo (Judgment on the Appeal of Mr Laurent Koudou Gbagbo against the Decision of Pre-Trial Chamber I on Jurisdiction and Stay of Proceedings) ICC-02/11-01/11 (OA 2) (12 December 2012); 62–3, 66–7, 85, 93, 97, 165, 243–4, 246, 251, 257, 275–7 Prosecutor v. Ahmad Muhammad Harun and Ali Kushayb (Decision on the Prosecution Application under Article 58(7) of the Statute) ICC-02/05–01/07–1-Corr. (27 April 2007); 272 Prosecutor v. Germain Katanga (Judgment on the Appeal of Mr Germain Katanga Against the Decision of the Pre-Trial Chamber I Entitled ‘Decision on the Defence Request Concerning Languages’) ICC-01/04–01/07 (OA 3) (27 May 2008); 38 Prosecutor v. Germain Katanga and Mathieu Ngundjolo Chui (Decision on the Confirmation of Charges) ICC-01/04–01/07–717 (30 September 2008); 65–66, 90, 99, 215

xviii

table of cases

Prosecutor v. Germain Katanga and Mathieu Ngudjdo Chui (Reasons for the Oral Decision on the Motion Challenging the Admissibility of the Case (Article 19 of the Statute)) ICC-01/04–01/07 (16 June 2009); 110, 268 Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui (Judgment on the Appeal of Mr Germain Katanga against the Oral Decision of Trial Chamber II of 12 June 2009 on the Admissibility of the Case) ICC-01/04–01/07 (OA 8) (25 September 2009); 260 Prosecutor v. Uhuru Muigai Kenyatta et al. (Decision on the Prosecutor’s Application for Summonses to Appear for Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali) ICC-01/09–02/11–1 (18 July 2012); 252 Prosecutor v. Joseph Kony et al. (Decision on the Admissibility of the Case under Article 19(1) of the Statute) ICC-02/04–01/05 (10 March 2009); 251 Le Procureur c. Lubanga Dyilo (Version publique expurg´ee de la requˆete de la D´efense en autorisation d’interjeter appel de la D´ecision de la Chambre Pr´eliminaire I du 29 janvier 2007 sur la confirmation des charges en conformit´e avec les d´ecisions de la Chambre Pr´eliminaire du 7 et 16 f´evrier 2007) ICC-01/04-01/06-836 (22 F´evrier 2007); 219 Prosecutor v. Thomas Lubanga Dyilo (Decision on the Prosecutor’s Application for a Warrant of Arrest, Article 58) ICC-01/04–01/06–8-Corr. (10 February 2006); 250 Prosecutor v. Thomas Lubanga Dyilo (Decision on the Prosecutor’s Application for a Warrant of Arrest, Article 58) ICC-01/04–01/06–37 (10 February 2006); 216 Prosecutor v. Thomas Lubanga Dyilo (Decision Establishing General Principles Governing Applications to Restrict Disclosure pursuant to Rule 81(2) and (4) of the Rules of Procedure and Evidence) ICC-01/04–01/06–108 (19 May 2006); 66 Prosecutor v. Thomas Lubanga Dyilo (Decision on Thomas Lubanga Dyilo’s Brief Relative to Discontinuance of Appeal, Appeals Chamber) ICC-01/04–01/06–176 (3 July 2006); 279 Prosecutor v. Thomas Lubanga Dyilo (Judgment on the Prosecutor’s Appeal against the Decision of Pre-Trial Chamber I entitled ‘Decision Establishing General Principles Governing Application to Restrict Disclosure pursuant to Rule 81(2) and (4) of the Rules of Procedure and Evidence’) ICC-01/04–01/06–568 (13 October 2006); 269 Prosecutor v. Thomas Lubanga Dyilo (Decision on the Practices of Witness Familiarization and Witness Proofing) ICC-01/04–01/06 (8 November 2006); 114, 123 Prosecutor v. Thomas Lubanga Dyilo (Judgment on the Appeal of Thomas Lubanga Dyilo against the Decision on the Defence Challenge to the Jurisdiction of the Court pursuant to Article 19(2)(a) of the Statute of 3 October 2006) ICC-01/04–01/06 1–772 (OA 4) (14 December 2006); 12, 66, 199, 238, 245, 257 Prosecutor v. Thomas Lubanga Dyilo (Decision on the Confirmation of Charges) ICC-01/04–01/06-803-tEN (29 January 2007); 36, 63, 65, 69, 90, 138, 209, 215–19, 222 Prosecutor v. Thomas Lubanga Dyilo (Judgment on the Appeal of Mr Thomas Lubanga Dyilo against the Decision of Pre-Trial Chamber I entitled ‘Decision sur la demande

table of cases

xix

de mise en liberte provisoire de Thomas Lubanga Dyilo’) ICC-01/04–01/06–824 (13 February 2007); 66 Prosecutor v. Thomas Lubanga Dyilo (Decision on the Admissibility of the Appeal of Mr Thomas Lubanga Dyilo against the Decision of the Pre-Trial Chamber I entitled ‘Decision sur la Confirmation des Charges of 29 January 2007’) ICC-01/04–01/06 (OA 8) (13 June 2007); 62 Prosecutor v. Thomas Lubanga Dyilo (Judgment on the Appeals of the Prosecutor and the Defence against Trial Chamber I’s Decision on Victim’s Participation of 18 January 2008) ICC-01/04–01/06 (OA 9, OA 10) (11 July 2008); 63 Prosecutor v. Thomas Lubanga Dyilo (Judgment on the Appeal of the Prosecutor against the Decision of Trial Chamber I entitled ‘Decision on the Release of Thomas Lubanga Dyilo’) ICC-01/04–01/06 (OA 12) (21 October 2008); 67 Prosecutor v. Thomas Lubanga Dyilo (Decision Giving Notice to the Parties and Participants that the Legal Characterization of the Facts May be Subjected to Change in Accordance with Regulation 55(2) of the Regulations of the Court, Appeals Chamber) ICC-01/04–01/06 (8 December 2009); 238 Prosecutor v. Thomas Lubanga Dyilo (Judgment on the Appeals of Mr Lubanga Dyilo and the Prosecutor against the Decision of Trial Chamber I of 14 July 2009 entitled ‘Decision Giving Notice to the Parties and Participants that the Legal Characterization of the Facts may be Subject to Change in Accordance with Regulation 55(2) of the Regulations of the Court’) ICC-01/04–01/06 (OA 15, OA 16) (8 December 2009); 38 Prosecutor v. Thomas Lubanga Dyilo (Judgment pursuant to Article 74 of the Statute) ICC-01/04- 01/06–2842 (14 March 2012); 220 Prosecutor v. Callixte Mbarushimana (Defence Request for Disclosure) ICC-01/04–01/10–29 (14 December 2010); 273 Prosecutor v. Callixte Mbarushimana (Defence Request for an Order for State Cooperation pursuant to Article 57(3)(b) ICC-01/04–01/10–76 (14 March 2011); 273 Prosecutor v. Callixte Mbarushimana (Defence Request to Convene a Status Conference) ICC-01/04- 01/10–153 (15 May 2011); 273 Prosecutor v. Callixte Mbarushimana (Second Defence Request to Convene a Status Conference for the Purpose of Obtaining Cooperation from the Democratic Republic of the Congo) ICC-01/04–01/10–219 (7 June 2011); 273 Prosecutor v. Callixte Mbarushimana (Defence Request for Reclassification) ICC-01/04–01/10–284 (14 July 2011); 273 Prosecutor v. Callixte Mbarushimana (Defence Challenge to the Jurisdiction of the Court) ICC-01/04- 01/10–290 (19 July 2011); 272–3 Prosecutor v. Callixte Mbarushimana (Order to the Prosecutor Requesting Observations on the ‘Defence Challenge to the Jurisdiction of the Court’) ICC-01/04–01/10–297 (20 July 2011); 273 Prosecutor v. Callixte Mbarushimana (Defence Request for Leave to Reply to the Prosecution’s Response to the Defence Challenge to the Jurisdiction of the Court

xx

table of cases

and Defence Request to Adduce Oral Testimony) ICC-01/04–01/10–323 (1 August 2011); 203, 269 Prosecutor v. Callixte Mbarushimana (Decision on the Schedule of the Confirmation Hearing) ICC-01/04–01/10–356 (12 August 2011); 273 Prosecutor v. Callixte Mbarushimana (Defence Request for the Compliance of the Democratic Republic of the Congo with ICC-01/04–01/10–56-Conf-Exp) ICC-01/04- 01/10–123 (27 April 2011); 273 Prosecutor v. Callixte Mbarushimana (Decision on the Prosecutor’s Application for a Warrant of Arrest Against Callixte Mbarushimana) ICC-01/04–01/10–1 (11 October 2010); 197, 200, 204, 269 Prosecutor v. Callixte Mbarushimana (Decision on the ‘Defence Challenge to the Jurisdiction of the Court’) ICC-01/04–01/10–451 (26 October 2011); 63, 75, 84, 96, 196–7, 199–200, 203, 243–4, 254, 264–5, 270, 272, 275, 283 Prosecutor v. Francis Kirimi Muthaura et al. (Decision on the Prosecutor’s Application for Summonses to Appear for Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali) ICC-01/09–02/11-1 (8 March 2011); 252 Prosecutor v. Francis Kirimi Muthaura et al. (Decision on the ‘Prosecution’s Application Requesting Disclosure after a Final Resolution of the Government of Kenya’s Admissibility Challenge’ and Establishing a Calendar for Disclosure Between the Parties) ICC-01/09–02/11–64 (20 April 2011); 267, 269 Prosecutor v. Francis Kirimi Muthaura et al. (Decision on the ‘Request for an Oral Hearing pursuant to Rule 156(3)’) ICC-01/09–02/11–251 (17 August 2011); 279 Prosecutor v. Francis Kirimi Muthaura et al. (Decision Requesting Observations on the Schedule for the Confirmation of Charges Hearing) ICC-01/09–02/11–272 (30 August 2011); 262–3 Prosecutor v. Francis Kirimi Muthaura et al. (Decision on the Schedule of the Confirmation of Charges Hearing) ICC-01/09–02/11–321 (13 September 2011); 249, 273 Prosecutor v. Francis Kirimi Muthaura et al. (Submissions on Jurisdiction on Behalf of Uhuru Kenyatta) ICC-01/09–02/11–339 (19 September 2011); 272 Prosecutor v. Francis Kirimi Muthaura et al. (Transcript, Confirmation of Charges Hearing) (Transcript) ICC-01/09- 02/11-T-4-ENG ET (21 September 2011); 254, 273 Prosecutor v. Francis Kirimi Muthaura et al. (Decision on the Confirmation of Charges pursuant to Article 61(7)(a) and (b) of the Rome Statute), Dissenting Opinion by Judge Hans-Peter Kaul, ICC-01/09–02/11–382-Red (26 January 2012); 247–8, 265 Prosecutor v. Francis Kirimi Muthaura et al. (Decision on the Confirmation of Charges pursuant to Article 61(7)(a) and (b) of the Rome Statute) ICC-01/ 09–02/11–382-Red (26 January 2012); 243, 245, 248, 265 Prosecutor v. Francis Kirimi Muthaura et al. (Directions on the Submission of Observations pursuant to Article 19(3) of the Rome Statute and Rule 59(3) of the Rules of Procedure and Evidence) ICC-01/09–02/11–394 (2 February 2012); 279

table of cases

xxi

Prosecutor v. Francis Kirimi Muthaura et al. (Decision on the ‘Observations on the Directions on the Submission of Observations pursuant to Article 19(3) of the Rome Statute and Rule 59(3) of the Rules of Procedure and Evidence’) ICC-01/09–02/11–400 (OA 4) (20 February 2012); 281 Prosecutor v. Francis Kirimi Muthaura et al. (Decision on the Request of Mr Kenyatta and Mr Muthaura for Suspensive Effect) ICC-01/09–02/11–401 (29 February 2012); 278 Prosecutor v. Francis Kirimi Muthaura et al. (Decision on the Appeal of Mr Francis Kirimi Muthaura and Mr Uhuru Muigai Kenyatta against the Decision of Pre-Trial Chamber II of 23 January 2012 Entitled ‘Decision on the Confirmation of Charges pursuant to Article 61(7)(a) and (b) of the Rome Statute’) ICC-01/09–02/11–425 (OA 4) (24 May 2012); 62, 85, 93, 196, 243, 246, 248, 265–6, 278 Prosecutor v. William Samoei Ruto et al. (Decision on the Prosecutor’s Application for Summonses to Appear for William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang) ICC-01/09-01/11–01 (8 March 2011); 265 Prosecutor v. William Samoei Ruto et al. (Decision on the Prosecutor’s Application for Summons to Appear for William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang) ICC-01/09-01/11–1 (18 July 2011); 252 Prosecutor v. William Samoei Ruto et al. (Decision on the Schedule for the Confirmation of Charges Hearing) ICC-01/09–01/11 (25 August 2011); 263, 273 Prosecutor v. William Samoei Ruto et al. (Decision on the ‘Filing of Updated Investigation Report by the Government of Kenya in the Appeal Against the Pre-Trial Chamber’s Decision on Admissibility’) ICC-01/09–01/11–234 (28 July 2011); 275 Prosecutor v. William Samoei Ruto et al. (Judgment on the Appeal of the Republic of Kenya Against the Decision of Pre-Trial Chamber II of 30 May 2011 entitled ‘Decision on the Application by the Government of Kenya Challenging the Admissibility of the Case pursuant to Article 19(2)(b) of the Statute’) ICC-01/09–01/11 (OA 11-307) (30 August 2011); 168, 186, 199, 250, 253, 256, 258–9 Prosecutor v.William Samoei Ruto et al. (Defence Challenge to Jurisdiction, Defence for Mr Ruto and Mr Sang) ICC-01/09–01/11–305 (30 August 2011); 272 Prosecutor v. William Samoei Ruto et al. (Decision on the Confirmation of Charges pursuant to Article 61(7)(a) and (b) of the Rome Statute) ICC-01/09–01/11–373 (23 January 2012); 243 Prosecutor v.William Samoei Ruto et al. (Directions on the Submission of Observations pursuant to Article 19(3) of the Rome Statute and Rule 59(3) of the Rules of Procedure and Evidence) ICC-01/09–01/11–383 (2 February 2012); 279 Prosecutor v. William Samoei Ruto et al. (Decision on the ‘Observations on the Directions on the Submission of Observations pursuant to Article 19(3) of the Rome Statute and Rule 59(3) of the Rules of Procedure and Evidence’) ICC-01/09–01/11–390 (20 February 2012); 280

xxii

table of cases

Prosecutor v.William Samoei Ruto et al. (Decision on the Appeal of Mr William Samoei Ruto and Mr Joshua Arap Sang against the Decision of Pre-Trial Chamber II of 23 January 2012 entitled ‘Decision on the Confirmation of Charges pursuant to Article 61(7)(a) and (b) of the Rome Statute’) ICC-01/09–01/11–414 (OA 3, OA 4) (24 May 2012); 62, 85, 93, 196, 243, 247 Situation in the Central African Republic (Decision Assigning the Situation in the Central African Republic to Pre-Trial Chamber III) ICC-01/05 (19 January 2005); 97 Situation in the Republic of Cˆote d’Ivoire (Judge Fern´andez de Gurmendi’s Separate and Partly Dissenting Opinion to the Decision pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of ˆ d’Ivoire) ICC-02/11–15 (3 October 2011); 271 Cote Situation in the Republic of Cˆote d’Ivoire (Decision pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of ˆ d’Ivoire) ICC-02/11–14 (3 October 2011); 264, 270–2 Cote Situation in Darfur (Decision on Victim Participation in the Appeal of the Office of the Public Counsel for the Defence against Pre-Trial Chamber I’s Decision of 3 December 2007 and in the Appeals of the Prosecutor and the Office of the Public Counsel for the Defence against Pre-Trial Chamber I’s Decision of 6 December 2007) ICC-02/05–138 (18 June 2008); 280 Situation in the Democratic Republic of the Congo (Decision Assigning the Situation in the Democratic Republic of the Congo to Pre-Trial Chamber I) ICC-01/04 (5 July 2004); 97 Situation in the Democratic Republic of the Congo (Decision on the Applications for Participation in the Proceedings of VPRS 1, VPRS 2, VPRS 3, VPRS 4, VPRS 5 and VPRS 6) ICC-01/04–101-tEN-Corr. (17 January 2006); 250 Situation in the Democratic Republic of the Congo (Judgment on the Prosecutor’s Appeal Against the Decision of the Pre-Trial Chamber I entitled ‘Decision on the Prosecutor’s Application for Warrants of Arrest, Article 58’) ICC-04– 01–169-US-Exp (13 July 2006); 76–7, 84, 88, 165 Situation in the Democratic Republic of the Congo (Judgment on the Prosecutor’s Application for Extraordinary Review of Pre-Trial Chamber I’s 31 March 2006 Decision Denying Leave to Appeal) ICC-01/04–168 (13 July 2006); 35 Situation in the Democratic Republic of the Congo (Decision Requesting Clarification on the Prosecutor’s Application under Article 58) ICC-01/04–575 (6 September 2010); 203, 272 Situation in the Democratic Republic of the Congo (Prosecution’s Application under Article 58) ICC-01/04–573-US-Exp (20 August 2010); 197 Situation in the Republic of Kenya (Decision Requesting Clarification and Additional Information) ICC-01/09–15 (18 February 2010); 272 Situation in the Republic of Kenya (Decision pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Kenya) ICC-01/09–19 (31 March 2010); 37, 66, 84, 96–8, 100, 168, 203, 264, 271–2

table of cases

xxiii

Situation in Uganda (Decision Assigning the Situation in Uganda to Pre-Trial Chamber II) ICC-02/04 (5 July 2004); 97 Situation in Uganda (Decision on the Prosecutor’s Application that the Pre-Trial Chamber Disregard as Irrelevant the Submission Filed by the Registry on 5 December 2005) ICC-02/04–01/05 (9 March 2006); 84

International Tribunal of the Law of the Sea M/V Saiga Case (No. 2) (St Vincent v. Guinea) (Judgment), International Law Reports 120 (1999) 143; 8

European Court of Justice Case T-9/04, AC Treuhand v. Commission [2008] ECR I-1501; 177 Case C-366, Air Transport Association of America and Others, Opinion of Advocate-General Kokott, 6 October 2011; 31 Joined Cases C-628/10 P and C-14/11 P, Alliance One International, Inc. and Standard Commercial Tobacco Co., Inc. v. European Commission and European Commission v. Alliance One International, Inc. and Others [2012] 5 CMLR 14; 177 Case T-279/02, Degussa v. Commission [2006] ECR II-897; 177 Case C-266/06, Evonik Degussa v. Commission [2008] ECR I-00081; 177 Case T-102/96, Gencor Ltd v. Commission of the European Communities [1999] ECR II-753; 29, 183, 194 Case T-204/03, Haladjian Fr`eres SA v. Commission [2006] ECR-II-3779; 34, 195 Case 48/69, Imperial Chemical Industries Ltd v. Commission (‘Dyestuffs’) [1972] ECR; 29 Case C-106/11, M. J. Bakker v. Minister van Financi¨en [2012] ECR NYP; 34 Case T-1/89, Rhˆone-Poulenc SA v. Commission [1991] ECR II-867; 177 ´ rad pro ochranu hospod´aˇrsk´e soutˇeˇze Case C-17/10, Toshiba Corporation and others v. Uˇ [2012] ECR NYP; 177 Cases C-89, 104, 114, 116, 117, 125–129/85, Wood Pulp Cases, A. Alstrom Osakeyhtio et al. v. Commission (Joined Cases) [1988] ECR; 29

European Court of Human Rights Al-Adsani v. United Kingdom (App. No. 35763/97) ECHR 21 November 2001; 181 Al-Saadoon and Mufdhi v. UK (App. No. 61498/08) ECHR 30 June 2009 (Admissibility Decision); 225 Aquilina v. Malta (App. No. 25642/94) ECHR 29 April 1999; 127 Bankovi´c et al. v. Belgium et al. (App. No. 52207/99) ECHR 2001-XII 335; 234 Behrami and Behrami v. France (App. No. 71412/01) and Saramati v. France, Germany and Norway (App. No. 78166/01) ECHR 2 May 2007; 234 C. R. v. United Kingdom, 21 EHRR 363, 22 November 1995; 125

xxiv

table of cases

Co¨eme et al. v. Belgium (App. Nos. 32492/96, 32547/96, 32548/96, 33209/96 and 33210/96) 2000-VII ECHR 75 (Judgment of 22 June 2000); 21, 72, 126 Cyprus v. Turkey (App. No. 25781/94) ECHR, Grand Chamber, 10 May 2001; 222 Demopoulos et al. v. Turkey (App. No. 46113–99) ECHR, Grand Chamber, 1 March 2010 (Admissibility Decision); 222 Ilascu v. Moldova and Russia (App. No. 48787/99) 8 July 2004, ECHR 2004-VII; 234 Ireland v. United Kingdom (App. No. 5310/71) ECHR 18 January 1978; 127 Issa et al. v. Turkey (App. No. 31821/96) ECHR 16 November 2004; 234 Isaak v. Turkey (App. No. 44587/98) ECHR 24 June 2008; 234 Jorgi´c v. Germany (App. No. 74613/01) ECHR 12 July 2007; 72, 126 Kononov v. Latvia (App. No. 36376/04) ECHR 17 May 2010; 125 K.U. v. Finland (App. No. 2872/02) (Merits and Just Satisfaction) ECHR 2 December 2008; 140 Loizidou v. Turkey (App. No. 15318/89) ECHR 23 March 1995; 234 ¨ Ocalan v. Turkey (App. No. 46221/99) ECHR 12 May 2005; 234 Ould Dah v. France (App. No. 13113/03) ECHR 17 March 2009; 125 Pad and Others v. Turkey (App. No. 60167/00) ECHR 28 June 2007; 234 Ramirez Sanchez v. France (App. No. 28780/95) ECHR 24 June 1996; 234 Saddam Hussein v. Albania et al. (App. No. 23276/04) ECHR 14 March 2006 (Admissibility Decision); 225 Sawoniuk v. United Kingdom (App. No. 63716/00) ECHR 2001-III, 29 May 2001; 71, 128 Sigurjonsson v. Iceland (App. No. 16130/90) Ser. A No. 264; 38 Sokurenko and Strygun v. Ukraine (App. Nos. 29458/04, 29465/04) ECHR (Judgment of 20 July 2006); 72, 126 Sunday Times v. United Kingdom (App. No. 65387/74) ECHR 26 April 1979, 2 EHRR 245; 125 Vondas and others v. Greece (App. No. 43588/06) ECHR 5 February 2009; 236 Women on Waves et al. v. Portugal (App. No. 31276/05) ECHR 3 February 2009; 234 Young, James and Webster v. United Kingdom (App. No 7601/76; 7806/77) (1981) ECHR Ser. A No. 44; 38 Z. et al. v. UK (App. No. 29392/95) ECHR 10 May 2001; 124 Zand v. Austria (App. No. 7360/76) ECHR Report of the Commission, 12 October 1978; 126

European Commission of Human Rights G. v. Switzerland (App. No. 16875/90) ECHR, Commission Decision of 10 October 1990; 127 K¨ubli v. Switzerland (App. No. 17495/90) ECHR, Commission Decision of 2 December 1992; 127

table of cases

xxv

R v. Federal Republic of Germany (App. No. 11506/85) ECHR, Commission Decision of 10 October 1986; 127 X. v. Austria (App. No. 4161/69) Yearbook of the European Commission on Human Rights (1970); 127

Inter-American Court of Human Rights Inter-American Court of Human Rights, Advisory Opinion on Juridical Condition and Rights of the Undocumented Migrants (concurring opinion of Judge A. A. Canc¸ado Trindade) OC-18/03 (17 September 2003); 165 Inter-American Court of Human Rights, Fairen Garbi and Solis Corrales (Preliminary Objections), Judgment (Ser. C) No. 2 (26 June 1987); 63 Inter-American Court of Human Rights, Ivcher-Bronstein v. Peru, Judgment (Ser. C) No. 74 (6 February 2001); 126 Inter-American Court of Human Rights, Loayza-Tamayo v. Peru, Merits, Judgment (Ser. C) No. 33 (17 September 1997); 126

Inter-American Commission of Human Rights Inter-American Commission on Human Rights, Coard et al. v. United States, Case No. 10.951, Report No. 109/99 (29 September 1999); 234, 237 Sergio Euden Lopez Burgos v. Uruguay, Communication No. R.12/52 (6 June 1979), Views of 29 July 1981, 68 ILR 29; 234

International Military Tribunals International Military Tribunal (Nuremberg), Judgment and Sentences (1 October 1946), reprint. in American Journal of International Law, 41 (1947); 87 US v. Lothar Eisentrager, 14 L. Rep. of Trials of War Crim. (US Military Commission 1948); 3

Domestic courts Australia Dow Jones v. Gutnick, 210 CLR 575 (2002); 134, 150

Belgium Bertchmann v. Soci´et´e Anonyme des Charbonnages d’ Argenteau, Cour de Cassation [Cass.] [Court of Cassation] 22 ILR 207, 208 (1958) (Belg.); 19

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table of cases

Erdal v. Council of Ministers, Arbitragehof [Constitutional Court], Decision No. 73/2005, Oxford Reports on International Law in Domestic Courts, ILDC 9 (BE 2005) (20 April 2005) (Belg.); 70, 74

Canada Citron v. Z¨undel, 175 DLR 512 (1999); 147 Libman v. The Queen, [1985] 2 SCR 178; 34, 106 Mugesera v. Canada (Minister of Citizenship and Immigration) Supreme Court of Canada, 2005 SCC 39, [2005] 2 SCR 9 (28 June 2005); 153–4 R. v. Deutsch [1986] SCR 2; 21 R. v. Finta, Canada, [1989] 82 ILR 425, Judgment (High Court of Justice); 70 R. v. Finta, [1992] 98 ILR 520, Judgment (Can. Ont. CA); 70–1 R. v. Finta, [1994] 104 ILR 284, Judgment (SCC); 70, 164 United States v. L´epine [1994] 1 SCR 286; 34

Cyprus Tomko v. Republic of Cyprus per the Department of Population Register and Immigration of the Ministry of Interior, Case No. 709/2006 (Judgment) 20 June 2007 (Supreme Court of Cyprus), reported in Oxford Reports on International Law, ILDC 834 (CY 2007); 222

France Cour d’Appel de Paris, Judgment of 17 March 2004, 11`eme Chambre, Chambre des Appels Correctionnels, No. 03/01520; 148, 149 In Re Feld and Newman, Cour de Cassation, 25 May 1967, 48 ILR 88; 18 LICRA et Union des ´Etudiants Juifs de France v. Yahoo! Inc. et Yahoo!.Fr, Tribunal de Grande Instance de Paris, Ordonnance de r´efer´e du 22 mai 2000; 148 LICRA et Union des ´Etudiants Juifs de France v. Yahoo! Inc. et Yahoo!.Fr, Tribunal de Grande Instance de Paris, Ordonnance de r´efer´e du 20 nov´embre 2000; 134, 148 Timothy K. et Yahoo! c. Minist`ere Public, Judgement of 17 March 2004 11`eme Chambre, Chambre des Appels Correctionnels, No. 03/01520; 148, 149 Minist`ere Public c. Weiler, Case No. 0718523043, Trib. Gr. Inst. Paris, 17`eme Chambre, 3 March 2011; 150 Tribunal de Grande Instance de Paris, Judgement of 11 February 2003, 17`eme Chambre, Chambre de la Presse, No. 0104305259; 148

Germany Control Commission Court of Appeal in Germany (British Zone), Director of Prosecutions v. Hobbs, 17 ILR 138 (27 April 1950); 22

table of cases

xxvii

In re Jorgi´c, Federal Republic of Germany, Federal Constitutional Court (BVerfG), 12 December 2000, 135 ILR 152; 34, 36 In re T¨oben, Decision of the District Court of Mannheim, Urt. v. 10.11.1999 – 5 KLs 503 Js 9551/99 (1999); 146, 149 In re T¨oben, Decision of the Federal Court Court of Justice (BGH), Urt. v. 12.12.2000 – 1 StR 184/00, reported in 54(8) NJW (2001); 133, 146

India Mobarik Ali Ahmed v. State of Bombay, AIR 1957, SC 857; 14

Israel Cr. A. 4596/05, The State of Israel v. Ze’ev Rosenstein, Appeal Judgment (30 November 2005), reported in Oxford Reports on International Law in Domestic Courts, International Law of Domestic Courts (IL 2005) 159; 34

Italy In re Condorelli, 19 ILR 1952 (5 July 1952); 229 Lozano v. Italy, Case No. 33171/2008. Appeal Judgment, reported in Oxford Reports in International Law, ILDC 1085 (IT 2008) (Court of Cassation, It.) (Rapporteur Felur P. Palcetti); 239 In re Moshe, Italian Court of Cassation, Judgment No. 4741, Section V (Pen.) (27 December 2000); 150 In re Scarpato, 18 ILR 625, 626–627 (1951) (Court of Cassation, Italy); 214

Japan Chin Chi-Huo (alias Ken Honda) v. Japan, 26 ILR 704 (1958-II) (1 June 1955); 214

Kenya Musisi v. Republic [1969] EA 493, (1969), 48 ILR 91 (HCK) (Kenya); 22

Netherlands Appeal in Cassation on the Interests of the Law, Supreme Court of the Netherlands (18 September 2001); 70 R.Wijngaarde and R.A. Hoost v. Desire Delano Bouterse, Court of Appeal of Amsterdam (20 November 2000), Netherlands Yearbook of International Law, 32 (2001); 70

Namibia S v. Mwinga, [1994] NACH 10; 20

xxviii

table of cases New Zealand

R. v. Misic, [2001] 3 New Zealand Law Reports 1 (CA); 138 Solicitor-General v. Reid [1997] 3 NZLR 617, 631–632 (1997) (CA) (NZ); 34, 106

Singapore Lim Siong Khee v. Public Prosecutor, [2001] SGDC 32 (Singapore District Court); 138 Public Prosecutor v. Muhammad Nuzaihan bin Kamal Luddin, [2000] SLR 34 (High Court of Singapore); 136 Public Prosecutor v. Taw Cheng Kong, 2 SLR 410, Singapore Court of Appeal (1998); 31

South Africa American Soda Ash Corp. & CHC Global (Pty) Ltd v. Competition Commission of South Africa et al., Case 12/CAC/DEC01, Appeal to Competition Appeal Court (25 October 2002), reported in Oxford Reports on International Law in Domestic Courts, International Law in Domestic Courts (ZA 2002) 493; 30, 195

Spain In re Augusto Pinochet, Audiencia Nacional, 119 ILR 331; 105

Switzerland Evgeny Adamov v. Federal Office of Justice (Judgment) Federal Tribunal (Switz.), ATF 132 II 81, ILDC 339 (CH 2005), 22 December 2005; 36 Novi´c v. Public Prosecutor of the Canton of Basel-Stadt, Cour de Cassation [Cass.] [Court of Cassation], 22 ILR 515 (1955); 19

United Kingdom of Great Britain and Northern Ireland County Council of Fermanagh v. Farrendon, 2 ILR 109, 109–110 (1933); 14 Norris v. Government of the United States and Others, [2008] UKHL 16; 174 R. v. Duncan Wallace Smith [1996] (No. 2), 2Cr. App. R 1; 15 R. v. Governor of Brixton Prison, ex parte Levin, [1997] QB 65 (Court of Appeals); 133 R. v. Latif, R. v. Shahzad, [1996] 1WLR 104 347 1 All ER 353; 20 R. v. Smith (Wallace Duncan) (No. 4), [2004] 2 Cr. App. R 17; 15, 150–1 R. v. Sheppard and Whittle, [2010] EWCA Crim. 65 (Court of Appeal, Criminal Division, England) (29 January 2010); 133, 150–1, 158 R. v. Whittle, R. v. Brammar, R. v. Allyson, [2008] EWCA Crim. 2560; 174

table of cases

xxix

Rio Tinto Zinc Corpn v. Westinghouse, [1978] AC 547; 173 Somchai Liangsiripraesert v. US, (1990) 29 ILM 1390; 14, 20, 33, 182, 207

United States Animal Science Products, Inc. v. China Minmetals Corp., 654 F.3d 462 (3rd Cir., 2011); 193 Autocephalous Greek-Orthodox Church of Cyprus and Republic of Cyprus v. Goldberg et al., 917 F.2d 278, 293 (7th Circ. 24 October 1990); 222 Centerprise International Ltd v. Micron et al. (in re Dynamic Random Access Memory Antitrust Litigation), F.Suppl. 2d, 2006 WL 515629 (ND Cal., 2006); 193 F. Hoffman-LaRoche et al. v. Empargan SA, 542 US 155 (2004); 190–1, 194 H R Rep. No. 97–686 (1982), reprint. 1982 USCCAN 2487; 193 Hartford Fire Ins. Co. v. California, 509 US 764, 796 (1993); 27–8, 179, 191, 193 In re Grand Jury Subpoena Duces Tecum Addressed to Canadian Int’l Paper Co. 72 F.Suppl. 1013 (SDNY, 1947); 27 Kruman et al. v. Christie’s International et al., 284 F.3d 384, 390 (2nd Circ., 2002); 25, 28, 182 Laker Airways Ltd v. Sabena, 731 F.2d 909, 923 (DC Cir., 1984); 30, 184 Mannington Mills v. Congoleum Corporation, 595 F.2d 1287, 1297–8 (3rd Circ., 1979); 27 Minn-Chem., Inc. et al. v. Agrium, Inc. et al., 683 F.3d 845 (7th Cir., 2012); 190–1, 193–4 Minnesota v. Granite Gate Resorts, Inc. (1997) 568 NW 2d 715 (Minn. Ct. App.); 146 National Bank of Canada v. Interbank Card Association, 666 F.2d 6, 8 (2nd Circ., 1981); 28 Re Lo Dolce, 106 F.Suppl. 455 (1952); 217 State v. Hall, 114 NC 909, 19 SE 602 (1894); 14 Strassheim v. Daily, 221 US 280, 285 (1911); 14, 17, 178 Timberlane Lumber Co. v. Bank of America, 549 F.2d 597 (9th Circ., 1976); 27 United Phosphorus Ltd v. Angus Chemical Co., 131 F.Suppl. 2d 1003 (ND Ill., 2001); 193 United States v. Aluminium Company of America (ALCOA) et al., 148 F.2d 416, 443 (2nd Cir., 1945); 25, 28, 184, 190–2 United States v. Anderson, 326 F.3d 1319 (11th Cir., 2003); 191 United States v. AU Optronics Corporation et al. (In re TFT–LCD (Flat Panel) Antitrust Litigation), F.Suppl. 2d, 2011 WL 1464858 (ND Cal. 2011); 180, 191–2 United States v. AU Optronics Corporation et al. (United States’ Sentencing Memorandum) Case No. CR-09–0110 SI, United States District Court (ND Cal., San Francisco Division, 20 September 2012); 191 United States v. Davis, 905 F.2d 245 (9th Cir., 1990); 20, 128, 182 United States v. Hsuan Bin Chen et al., F.Suppl. 2d, 2011 WL 332713 (ND Cal., 2011); 180, 191–2 United States v. LSL Biotechnologies, 379 F.3d 672 (9th Cir., 2004); 191, 193–4

xxx

table of cases

United States v. Nippon Paper Industries Co. Ltd et al., 109 F.3d 1 (1st Cir., 1997); 166, 178–9, 191–2, 206 United States v. Nippon Paper Industries Co. Ltd, et al., 118 S. Ct. 1116 (1998); 180 United States v. Nippon Paper Industries Co. Ltd, 62 F.Suppl. 2d 173 (D. Mass., 1999); 179 US v. Caicedo, 47 F.3d 370, 372 (9th Circ., 1995); 128 US v. Ian Norris, 753 F.Suppl. 2d 492 (ED Pa., 2010); 174 US v. Imperial Chemical Industries, 105 F.Suppl. 215 (1952); 26 US v. Kahn, 35 F.3d 426 (9th Circ., 1994); 128 US v. Klimavicius-Viloria, 144 F.3d 1249, 1257 (9th Circ., 1998); 128 US v. List (The Hostages Case), 8 Law Reports of Trials of MajorWar Criminals (1949); 214 US v. Peterson, 812 F.2d 486, 493 (9th Cir., 1987); 20, 128 US v. The Watchmakers of Switzerland Information Center, 133 F.Suppl. 40 (SDNY, 1955), reargument, 134 F.Suppl. 710 (SDNY, 1955), dismissed [1963] Trade Cases (CCH) 600 (SDNY, 1962); 26 US v. Yousef, 327 F.3d 56, 112 (2nd Cir., 2003); 20, 86, 128 Verizon Communications Inc. v. Law Offices of Curtis v. Trinko LLP, 540 US 398 (2004); 172 Westinghouse Electric Corp. Uranium Contracts Litigation, Subpoena Duces Tecum, 563 F.2d. 992 (10th Circ., 1977); 26 Westinghouse Electric Corp. v. Rio Algom Ltd, 617 F.2d 1248 (7th Circ., 1980); 26 Westinghouse Electric Corp. v. Rio Algom Ltd, 480 F.Suppl. 1138 (1979); 30 Yahoo! Inc. v. LICRA and UEJF, 169 F. Suppl. 2d 1181, 1192, 1194 (ND Cal., 2001); 149 Yahoo! v. LICRA, 433 F.3d 1199 (CA 9th Circ., 2006); 149

Zimbabwe S. v. Mharapara, 1985 (2) ZLR 211 (SC) 84 ILR 1, 17 Supreme Court of Zimbabwe, Judgment of 17 October 1985; 31, 182, 184

TABLE OF TREATIES AND SELECTED OTHER INSTRUMENTS

Additional Protocol to the Convention on Cybercrime, Concerning the Criminalization of Acts of a Racist and Xenophobic Nature Committed through Computer Systems, ETS No. 189, Strasbourg, 28 January 2003, entered into force 1 March 2006; 140–1 Agreement between the Government of the US and the Commission of the European Communities Regarding the Application of their Competition Laws, 23 September 1991, 30 ILM 1487 (1991); 27 Agreement between the Government of the US and the Government of Australia on Mutual Antitrust Enforcement Assistance, 27 April 1999; 28 Agreement between the Government of the US and the Government of Canada Regarding the Application of their Competition and Deceptive Marketing Practices Laws, 3 August 1995; 27–28 Agreement between the Government of the US and the Government of the Federal Republic of Germany Relating to Mutual Cooperation Regarding Restrictive Business Practices, 23 June 1976, 27 UST 1956; 27 Agreement Concerning the Application of the Treaty on Mutual Legal Assistance in Criminal Matters of 6 January 1994, Note No. 34/01, effected by exchange of notes At Washington 30 April and 1 May 2001, entered into force 1 May 2001, State Dept. No. 01–65, available at: Westlaw, 2001 WL 715884; 173 American Convention on Human Rights, 22 November 1969, entered into force 18 July 1978, 1144 UNTS 123, (1970) 9 ILM 673; 126–7, 234 Antitrust Criminal Penalty Enforcement and Reform Act of 2004, Pub. Law 108–237 (22 June 2004); 172 Brottsbalken [Criminal Code] (Swed.); 22 Chicago Convention on International Civil Aviation, 7 December 1944, entered into force 4 April 1947, 15 UNTS 295; 234 Chinese Computer Information Network and Internet Security, Protection and Management Regulations (1997); 136 Code P´enal Suisse (Switz.); 20, 22 Code de Proc´edure P´enale (Fr.); 18 Competition Act, 2002 (Ir.); 175 Competition Act, 5 March 2004 No. 12 (Nor.); 175

xxxi

xxxii

table of treaties and instruments

Competition Act, RSC 1985 (Can.); 175 Competition Act 1998 (South Africa); 195 Computer Crime Act No. 24/07 (Sri Lanka); 144 Computer Crimes Act 1997, Act 563 (Malaysia); 145 Computer Fraud and Abuse Act (1986) (US); 145 Computer Misuse Act, Act 19 of 1993 (Revised 31 July 2007); 144–5 Computer Misuse Act (1990) (UK); 144 Computer Misuse Act of Brunei Darussalem (2007); 144 Computer Misuse (Amendment) Bill (2012) (Singapore); 145 Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, Vienna, 20 December 1988, entered into force 11 November 1990, 28 ILM 493, UN Doc. El CONF. 82/15 Corr. 1; 19, 21, 79, 104 Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, 10 December 1984, entered into force 26 June 1987, 23 ILM 1027, 1465 UNTS 85; 14, 104, 234 Convention drawn up on the basis of Article K.3 of the Treaty of European Union on the protection of the European Communities financial interests 1997 OJ (C 195); 24 Convention for the Suppression of Terrorist Bombing, 15 December 1997, 2149 UNTS 284; 104 Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation, 10 March 1988, 1678 UNTS 221; 104 Convention on Cybercrime, Council of Europe, 185 European Treaty Series (23 November 2001), entered into force 1 July 2004; 135–7, 140–2, 151–2 Article 22(1); 140–1 Convention on the Physical Protection of Nuclear Material, 3 March 1980, 1987 UNTS 125; 104 Convention on the Prevention and Punishment of the Crime of Genocide, Paris, 9 December 1948, entered into force 12 January 1951, 78 UNTS 277; 14, 45, 105, 153 Article VI; 14, 105 Convention on the Protection of the European Communities’ Financial Interests, OJ (C 316), 27 November 1995; 105 Convention on Psychotropic Substances, 21 February 1971, 1019 UNTS 175; 104 Convention on the Safety of United Nations and Associate Personnel, UNGA Res. 49/59, 49 UN GAOR Suppl. (No. 49) 299, UN Doc. A/49/49 (9 December 1994), 2051 UNTS 363; 79, 104 Criminal Code of the People’s Republic of China, 14 March 1997; 22 Criminal Code of Tasmania (1924); 144 Criminal Justice Act 1993 (UK); 18, 22 Council of Europe Civil Law Convention on Corruption, 4 November 1999, CETS No. 174; 104 Council of Europe Convention on the Protection of the Environment through Criminal Law, 4 November 1988,CETS No. 172; 104

table of treaties and instruments

xxxiii

Council of Europe Criminal Law Convention on Corruption, Strasbourg, 27 January 1999, entered into force, 1 July 2002, CETS No. 173; 24 Council of Europe European Convention on Extradition, Paris, 13 December 1957, CETS No. 24; 24 Electronic Transactions Ordinance (2002), incorporated in Council of Europe, Cybercrime Legislation – Country Profile: Pakistan (23 February 2010); 145 Enterprise Act 2002 (Eng.); 173–4 European Convention on Human Rights, 4 November 1950, entered into force 3 September 1953, 213 UNTS 221, CETS No. 5; 125–7, 129, 234 Article 5; 126 Article 6; 129 Article 7; 125–6 European Convention on Mutual Assistance in Criminal Matters, 20 April 1959, CETS No. 030; 90 Federal Economic Crimes Law, No. 8137/90; 175 Foreign Extraterritorial Measures Act, F-29, 24 ILM 794 (1985) (Can.); 27 Foreign Proceedings (Excess of Jurisdiction) Act, 23 ILM 1038 (1984) (Austr.); 27 Foreign Trade Antitrust Improvements Act 15 USC s. 6a (2006); 27–28, 190–1, 193 Geneva Conventions Relative to the Protection of Civilian Persons in Time of War, 12 August 1949, 75 UNTS 287–417 (1950) (Geneva Convention IV); 213–14, 217, 226, 234 Hague Regulations (HagReg), 1907; 213–14, 227 Inter-American Convention on Forced Disappearance of Persons, Bel´em do Para, 6 September 1994, entered into force 28 March 1996, ILM 1994; 18, 105 International Antitrust Enforcement Assistance Act, Publ. L. 103–438, 108 US 4597 (1994); 27–8 International Convention against the Recruitment, Use, Financing and Training of Mercenaries, New York, 4 December 1989, entered into force, 20 October 2001, UNGA Res. 44/34 (4 December 1989), UN Doc. A/RES/44/34; 14 International Convention against the Taking of Hostages, 17 December 1979, 1316 UNTS 205; 104 International Convention for the Suppression of Counterfeiting, 20 April 1929, 112 UNTS 371; 103 International Convention for the Suppression of the Financing of Terrorism, New York, 9 December 1999, entered into force 10 April 2002, 39 ILM 268 (2000), UNGA Res. 54/109, UN Doc. A/RES/54/109; 22, 104 International Convention on the Suppression and Punishment of the Crime of Apartheid (19 January 1981) UN Doc. E/CN.4/1426 (1981); 41 International Covenant on Civil and Political Rights, 16 December 1966, entered into force 23 March 1976, 999 UNTS 171, (1967) 6 ILM 368; 126, 239 Mutual Legal Assistance Treaty (UK–US), entered into force 6 January 1994, amended 16 December 2004; 173

xxxiv

table of treaties and instruments

North American Free Trade Agreement (NAFTA) (US, Can., Mex.) chapter 15, 32 ILM 605, 663 (1993); 28 Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography, New York, 25 May 2000, 2171 UNTS 227 (2000); 140 Prevention of Electronic Crimes Ordinance, 2009; 145 Protocol against the Illicit Manufacturing of and Trafficking in Firearms, their Parts and Components and Ammunition, New York, 31 May 2001, entered into force 3 July 2005, UNGA Res. 55/255, UN Doc. A/RES/55/255; 20–21 Protocol against the Smuggling of Migrants by Land, Sea and Air, Supplementing the 2000 UN Convention against Transnational Organized Crime, Palermo, 12 December 2000, entered into force 28 January 2004, UNGA Res. 55/25 (UN GAOR Suppl. No. 49) UN Doc. A/45/49; 20 Protocol Amending the Treaty on Extradition between Australia and the United States of America of 14 May 1974, Australian Treaty Series No. 43 (1992); 138 Restatement (Third) of the Foreign Relations Law of the United States (1987); 32–3, 35, 179, 183 Sherman Antitrust Act, 15 USC ss. 1–6 (1890); 25, 172–3, 178, 190–1 Second Protocol to the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict, 17 May 1999, 2253 UNTS 212; 103, 104 Single Convention on Narcotic Drugs, 30 March 1961, 520 UNTS 151; 104 Sri Lankan Computer Crime Act No. 24 of 2007 (13 July 2007); 145 Statute of the International Criminal Tribunal for Rwanda, 8 November 1994, 33 ILM 1598, UNSC Res. 955, 49 UN SCOR, UN Doc. S/RES/955; 1, 153 Statute of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, 25 May 1993, 32 ILM 1192, UNSC Res. 827, 48 UN SCOR, UN Doc. S/RES/827; 1, 153 Strafgesetzbuch [StGb] [Penal Code] (Ger.); 22 The Rome Statute of the International Criminal Court, Rome, 17 July 1998, entered into force 1 July 2002, 2187 UNTS 3; 1, 21, 64, 87, 210 Article 12(2)(a); 1, 6–10, 12, 35, 37–59, 61, 64, 67–75, 77–83, 85, 87–90, 93, 100–101, 107, 111–3, 125, 131, 140, 155, 158–163, 168, 171–2, 183, 185–8, 196, 198, 202, 205–8, 210–2, 214, 219–220, 223–4, 230, 232–3, 235, 238–243, 282–5 Article 12(2)(b); 100, 225, 253 Article 12(3); 8, 62–3, 84, 100–1, 200–1, 210, 214, 219, 241–2, 251 Article 13; 12, 62, 96–8, 101, 200, 202–3, 235, 251, 254, 258 Article 15; 98, 258, 264, 270–2, 276 Article 17; 107, 198, 253, 268 Article 19(1); 84, 118, 161, 250, 264–5, 277 Article 19(2); 186, 245, 251–3, 255, 259–260, 263, 266, 270, 276 Article 19(3); 245, 251, 279–280

table of treaties and instruments

xxxv

Article 19(4); 259–262, 274 Article 19(5); 253, 256–7, 259 Article 19(6); 254, 262–3, 270, 274–6 Article 21(1)(b); 36, 49, 90, 159, 232 Article 21(1)(c); 90, 112–5, 119–124, 159 Article 21(3); 61, 64–7, 76, 90, 124–5, 134, 160, 189, 224–241 Article 22(1); 64, 99, 140–1 Article 30; 81, 91–2, 95, 100, 158 Article 58; 84, 251, 270, 276 Article 82; 120, 245, 255, 275–6, 281 Treaty Between the Government of the United States of America and the Government of Canada on Mutual Legal Assistance in Criminal Matters, Quebec City, 18 March 1985, 24 ILM 1092; 173 Treaty on Extradition, New York, 14 December 1990, 30 ILM 1407, UNGA Res. 45/116, UN Doc. A/RES/45/116; 24 Ugolovnyi Kodeks Rossiiskoi Federatsii (UK RF) (Criminal Code) (Russ.); 22, 175 United Nations Convention against Corruption, 9–11 December 1999; 104 United Nations Convention against Corruption, M´erida, 9 December 2003, entered into force 14 December 2005, UNGA 68/4, UN Doc. A/RES/58/4; 21 United Nations Convention against Transnational Organized Crime, 15 November 2000, 2225 UNTS 209; 104 United Nations Convention on the Law of the Sea, 10 December 1982, 1833 UNTS 397; 8, 168 United Nations – ICC Relationship Agreement, UNGA Res. A/58/318, 20 September 2004; 5, 210 Vienna Convention on the Law of Treaties, Vienna, 23 May 1969, entered into force 27 January 1980, 1155 UNTS 331, (1969) 8 ILM 679; 35, 37, 35, 39, 61, 66, 73, 89, 213 Article 29; 200, 232–3, 235, 238, 240–1, 286 Article 31; 9, 37, 61, 78, 128 Article 31(3)(b); 239 Article 31(3)(c); 65, 89, 160, 212 Article 32; 38–9, 61 War Crimes Act 1991 c. 13; 71

SELECTED ACRONY MS AND ABBREV IATIONS

ACHR ASP AU CAR CCCI CDPC CERD CPA DRC ECCC ECHR ECHR ECJ ECtHR FDLR FPLC/UPC FTAIA IACHR ICC ICCPR ICESCR ICJ ICSAD ICTR ICTY ILC ILO IST KFOR NGO

American Convention on Human Rights Assembly of States Parties African Union Central African Republic Central Criminal Court of Iraq European Committee on Crime Problems International Convention on Elimination of All Forms of Racial Discrimination Coalition Provisional Authority Democratic Republic of the Congo Extraordinary Chambers in the Courts of Cambodia European Convention on Human Rights European Court of Human Rights European Court of Justice European Court of Human Rights Democratic Forces for the Liberation of Rwanda Patriotic Forces for the Liberation of the Congo/Union of Congolese Patriots Foreign Trade Antitrust Improvements Act Inter-American Commission on Human Rights International Criminal Court International Convention on Civil and Political Rights International Convention in Economic, Social and Cultural Rights International Court of Justice International Centre for the Settlement of Antitrust Disputes International Criminal Tribunal for Rwanda International Criminal Tribunal for the Former Yugoslavia International Law Commission International Labour Organization Iraqi Special Tribunal NATO Kosovo Force non-governmental organization

xxxvi

selected acronyms and abbreviations OPCD OPCV OPT PCIJ SOFA UNCLOS UNTS UPC/RP VCLT WTO

Office of Public Council for the Defence Office of Public Council for Victims Occupied Palestinian Territories Permanent Court of International Justice Status of Forces Agreement United Nations Convention on the Law of the Sea United Nations Treaty Series Union of Congolese Patriots for Reconciliation and Peace Vienna Convention on the Law of Treaties World Trade Organization

xxxvii

1 Introduction

The creation of the International Criminal Court (ICC) took place through the adoption of the Rome Statute of the ICC on 17 July 1998.1 Historically, this marked the end of a legal Odyssey; the journey to Rome was full with well-recorded, failed attempts to create a permanent international criminal institution.2 The efforts to create such an institution after the Second World War were effectively halted for almost fifty years due to the Cold War.3 It was only in the late 1980s that there was again sufficient momentum in the international community to seriously contemplate the creation of appropriate international mechanisms to address large-scale atrocities. The events in the former Yugoslavia and Rwanda in the 1990s proved catalytic in this respect. The creation of the International Criminal Tribunals for Yugoslavia (ICTY)4 and Rwanda (ICTR)5 by the UN Security Council demonstrated that international 1 2

3

4

5

The Rome Statute of the International Criminal Court, Rome, 17 July 1998, 2187 UNTS 3 (entered into force 1 July 2002) (hereinafter, Rome Statute/ICC Statute). D. McGoldrick, ‘Criminal Trials before International Tribunals: Legality and Legitimacy’, in D. McGoldrick et al. (eds.), The Permanent International Criminal Court: Legal and Policy Issues (Oxford: Hart, 2004), 40; M.C. Bassiouni, ‘International Criminal Justice in Historical Perspective’, in M.C. Bassiouni (ed.), International Criminal Law (3rd edn, The Hague: Martinus Nijhoff, 2008), 32–39; R. Cryer, Prosecuting International Crimes (Cambridge University Press, 2005), 25; B.E. Berg, ‘The 1994 ILC Draft Statute for an International Criminal Court: A Principled Appraisal of Jurisdictional Structure’, Case Western Reserve Journal of International Law, 28 (1996), 221. A. Cassese, ‘From Nuremberg to Rome: International Military Tribunals to the International Criminal Court’, in A. Cassese et al. (eds.), The Rome Statute of the International Criminal Court: A Commentary (Oxford University Press, 2002), 9–10. Statute of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, 25 May 1993, UNSC Res. 827, 48 UN SCOR, UN Doc. S/RES/827 (hereinafter, ICTY Statute). Statute of the International Criminal Tribunal for Rwanda, 8 November 1994, UNSC Res. 955, 49 UN SCOR, UN Doc. S/RES/955 (hereinafter, ICTR Statute).

1

2

introduction

criminal justice was possible. It also strengthened the voices calling for the establishment of a permanent ICC. However, this new-found enthusiasm for international criminal justice did not entirely assuage the concerns of the international community connected to the creation of this Court. In fact, it is a mark of the extensive legal, social and political difficulties attached to the ICC project that, even in this euphoric environment, it took nothing short of almost a decade of protracted, multilateral negotiations fuelled by extensive civil society lobbying for the Court to become a reality.6 One of the most important objects of negotiation, the ‘question of questions of the entire project’,7 was the jurisdiction of the Court. Although the issue fluctuated significantly throughout the negotiating process, in the end the delegates at Rome opted mainly for territorial and nationality jurisdiction.8 Universal jurisdiction was reserved solely for Security Council referrals, in an effort to gain support for the Court from more reluctant states.9 As a result, political expediency led to what seems to be, at first sight, a double paradox. On the one hand, the 1998 ICC Statute is one of the most recent international instruments for the repression of ‘core crimes’. Yet it provides for the jurisdiction of the ICC on the basis of rules that have existed approximately since the Peace of Westphalia, if not well before that.10 The newest and most expansive rules on jurisdiction offered by the science of international law (e.g. universality, passive personality, custodial State jurisdiction) were not preferred. Universal jurisdiction was reserved only for Security Council referrals.

6 7

8

9 10

Officially, at least, the ICC saga kicked off with GA Res. 44/39, para. 1 (4 December 1989) UN Doc. A/RES/44/39. See below, Section 3.2 in detail. H.-P. Kaul and C. Kress, ‘Jurisdiction and Cooperation in the Statute of the International Criminal Court: Principles and Compromises’, Yearbook of International Humanitarian Law, 2 (1999), 143, 145. For the negotiations in Rome, see generally P. Kirsch and J.T. Holmes, ‘The Rome Conference on an International Criminal Court: The Negotiating Process’, American Journal of International Law, 93 (1999), 2. Arts. 13(b), 12(2) of the Rome Statute, above n. 1. See below Section 3.4 in detail. Reference is frequently made to the Digest of Justinian and the proposition that ‘one who administers justice beyond the limits of his territory may be disobeyed with impunity’. See T. Mommsen and P. Krueger (eds.), The Digest of Justinian (Philadelphia: University of Pennsylvania Press, 1985), 42, further, H.S. Maine, Ancient Law (New York: Dorset, reprint. 1986), 98; R.T. Ford, ‘Law’s Territory (A History of Jurisdiction)’, Michigan Law Review, 97 (1998–1999), 843; C. Ryngaert, Jurisdiction in International Law (Oxford University Press, 2008), 44.

introduction

3

On the other hand, the ICC was ostensibly created as the guardian of certain values shared by the international community as a whole.11 However, barring Security Council intervention, the Court will not be able to exercise jurisdiction on the basis of jurisdictional rules premised on principles of ‘international solidarity’12 and ‘universality.13 On the contrary, its jurisdiction will normally be based on the rule of territorial jurisdiction. This is a rule that played a leading role in the consolidation of the authority of the territorial sovereign during the rise of the Nation State.14 Thus, it would seem that, while the values are shared by all, the enforcement of such values on the international plane is reserved only for some, along the lines of traditional State consent doctrine.15 As a result, the Rome negotiations appear to have offered to the world an international mechanism for the protection of universal values through the use of sovereign tools of governance. This situation suggests that 11

12 13

14

15

O. Triffterer, ‘Preamble’, in O. Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court: Observers’ Notes, Article by Article (2nd edn, Munich: Beck Hart-Nomos, 2008), 8–9 for a classification of these as ‘basic, inherent values of the international community as a whole’. The Preamble of the Court is replete with such references, for example, ‘The States Parties to this Statute . . . Recognizing that such grave crimes threaten the peace, security and well-being of the world . . . ’; Bassiouni, ‘International Criminal Justice in Historical Perspective’, above n. 2, 29. European Committee on Crime Problems, Extraterritorial Criminal Jurisdiction (Strasburg: Council of Europe, 1990), 26–27. G.E. Langermeijer, ‘Le principe de territorialit´e’, in J.M. van Bemmelen (ed.), Le Droit ´ P´enal International Recueil d’Etudes en hommage a` Jacob Maarten Van Bemmelen (Leiden: Brill, 1965), 21–22; D. Tezcan, Territorialit´e et conflits de juridiction en droit P´enal International (Ankara: Publication de la Facult´e des sciences politiques de l’Universit´e d’Ankara, 1983), 21; I. A. Cameron, The Protective Principle of International Criminal Jurisdiction (Aldershot: Dartmouth, 1994), 22. Tezcan, Territorialit´e et conflits de juridiction, above n. 13 77–78; Ford, ‘Law’s Territory’, above n. 10, 866–868, 873–874; W. Ullmann, ‘Roman Public Law and Medieval Monarchy: Norman Rulership in Sicily’, in W. Ullmann (ed.), Jurisprudence in the Middle Ages (London: Variorum Reprints, 1980), 170; P. Viollet, L’Histoire des institutions politiques et administratives de la France, vol. II (Paris: Armand Colin et cie, 1890, reprint. Aalen: Scientia Verlag 1966), 453; A. Esmein, History of Continental Criminal Procedure with Special Reference to France (Boston: Little, Brown, 1913), 47–56; C.-L. von Bar, A History of Continental Criminal Law (Boston: Little, Brown, 1916, reprint. The Lawbook Exchange, 1999), 85–86. Note particularly here International Law Commission, ‘Summary Records of the 2209th Meeting’, UN Doc. A/CN.4/SER.A/1991, Yearbook of the International Law Commission, 1 (1991), 15–16, para. 12 (per A. Pellet) and the rationale in the first cases of universal jurisdiction for war crimes; United States v. Lothar Eisentrager, 14 L. Rep. of Trials of War Crim. (US Military Commission, 1948), 8, 15; D.D.N. Nsereko, ‘The International Criminal Court: Jurisdictional and Related Issues’, Criminal Law Forum, 10 (1999), 87, 98–99.

4

introduction

States have succeeded through the adoption of the Statute, in the name of the protection of community values, to assert once again indirectly, yet effectively, the prominence of State sovereignty on the international plane. Within the ‘contrast between consensualism and community interests’ that characterizes the Statute,16 the adopted rules on jurisdiction are closer to State sovereignty than to community values. It is clear therefore that the selection of territoriality in the Rome Statute can hardly be called a progressive development of international law. It is best seen as one of many necessary concessions to sovereignty that made possible the last-minute ‘package deal’ in Rome.17 The solution finally adopted on territoriality is today contained in Article 12(2) of the ICC Statute. Under this provision, in the event of a State referral or action proprio motu by the Prosecutor, the Court has jurisdiction only if ‘the following States are Parties to this Statute or have accepted the jurisdiction of the Court in accordance with paragraph 3; (a) The State on the territory of which the conduct in question occurred . . . ’.18 This final compromise did not go unnoticed in the literature. Authorities have extensively discussed whether endorsing territoriality at the expense of universal, custodial or other jurisdiction was the right thing to do in Rome. Obviously, in the prevailing political atmosphere of the day, there is some merit to the view that adopting universal jurisdiction would likely jeopardize the Court’s existence.19 On the other hand, however, it is difficult to disregard the argument that the final compromise left beyond the Court’s reach the typical internal conflict scenario in a State not Party. The Court would be unable to address Darfur, for example, without a Security Council referral. In those circumstances, the Court’s 16

17

18 19

These were some of the comments of the ICTY judges in plenary on the draft Statute during the ad hoc Committee on the Establishment of an International Criminal Court; Report of the Secretary-General, ‘Comments Received pursuant to Paragraph 4 of General Assembly Resolution 49/53 on the Establishment of an International Criminal Court’, UN Doc. A/AC.244/1/Add.2 (20 March 1995), 26–27. Kirsch and Holmes, ‘The Rome Conference on an International Criminal Court’, above n. 8, 9–11; P. Kirsch and D. Robinson, ‘Reaching Agreement at the Rome Conference’, in Cassese et al. (eds.), The Rome Statute of the International Criminal Court, above n. 3, 75; M. Bergsmo, ‘The Jurisdictional R´egime of the International Criminal Court (Part II, Articles 11–19)’, European Journal of Crime, Criminal Law and Criminal Justice, 6(4) (1998), 345, 346–348. Art. 12(2)(a) of the Rome Statute, above n. 1. O. Bekou and R. Cryer, ‘The International Criminal Court and Universal Jurisdiction: A Close Encounter?’, International and Comparative Law Quarterly, 56 (2007), 49, 68.

introduction

5

reach depends heavily on political action, in the form of a Security Council referral.20 Moreover, it is as yet unclear whether this crucial legal–political concession has succeeded in allaying State concerns of ‘jurisdictional overreach’ on the part of the Court.21 The allegations that ICC prosecution of State not Party nationals committing crimes in State Party territory would violate the pacta tertiis rule are well documented and amply refuted in the international literature.22 On a more positive note, the conclusion of the UN–ICC relationship agreement23 and the referral of the Darfur and Libya situations by the Security Council to the ICC24 may be indications of a change of State attitude towards the Court. These positive developments were not, however, without their own compromises. In fact, the exemption of peacekeepers from the Court’s reach by SC Resolution 1593 and the use of Article 16 by the Council in the past25 suggest a lingering suspicion over the Court’s jurisdiction. That said, while the Council seems to retain certain misgivings over the Court, 122 states have become parties

20

21

22 23

24

25

H.-P. Kaul, ‘Preconditions to the Exercise of Jurisdiction’, in Cassese et al. (eds.), The Rome Statute of the International Criminal Court, above n. 3, 583, 612–613; L. Willemarck, ‘La Cour p´enale internationale partag´ee entre les exigences de l’ind´ependance judiciaire, de la ´ souverainet´e des Etats et du maintien de la paix’, Revue de Droit P´enal et de Criminologie, 83 (2003), 3, 11–12. For similar argumentation and the issue of the ‘traveling tyrants’, L.N. Sadat, The International Criminal Court and the Transformation of International Law: Justice for the New Millennium (New York : Transnational, 2002), 118. L. Arbour and M. Bergsmo, ‘Conspicuous Absence of Jurisdictional Overreach’, in H.A.M. von Hebel et al. (eds.), Reflections on the International Criminal Court: Essays in Honour of Adriaan Bos (The Hague: T.M.C. Asser Press, 1999), 134–137. The US, Indian and Chinese concerns are particularly well known. The opposition of the United States was expressed mostly through the conclusion of bilateral agreements, providing for the inability of states parties to surrender US citizens to the Court, without US consent, according to Art. 98(2) of the Rome Statute. Among others, D. Scheffer, ‘The United States and the International Criminal Court’, American Journal of International Law, 93 (1999), 12. For the position of India and China, L. Jiangping and W. Zhixiang, ‘China’s Attitude Towards the ICC’, Journal of International Criminal Justice, 3 (2005) 608; U. Ramanathan, ‘India and the ICC’, Journal of International Criminal Justice, 3 (2005), 627. See below Section 6.3.4 for an extensive discussion. For the UN–ICC Relationship agreement and its adoption, see UNGA. Res. A/58/318 20 September 2004. The Relationship Agreement entered into force on 4 October 2004. The text of the agreement is available at www.icc-cpi.int (last accessed 18 February 2013). N.J. Udombana, ‘Pay Back Time in Sudan? Darfur in the International Criminal Court’, Tulsa Journal of Comparative and International Law, 13 (2006), 1, 8. For Libya, SC Res. 1970 (26 February 2011) UN Doc. S/RES/1970. See SC Res. 1422 (12 July 2002) UN Doc. S/RES/1422; C. Stahn, ‘The Ambiguities of SC Resolution 1422 (2002)’, European Journal of International Law, 14 (2003), 85.

6

introduction

to the Rome Statute,26 including two permanent members of the Security Council. The Court became operational on 1 July 2002 and continues to operate to date. A certain degree of optimism for the future of the ICC therefore seems warranted. Notwithstanding these interesting academic perspectives, the fact remains that Article 12(2)(a) is part of the Statute. This is the world in which the Court has lived so far and apparently will continue to live for some time in the future. This regime has remained largely intact following the 2010 Review Conference, although it took a turn to the conservative as regards the crime of aggression. The new Article 15bis provides that ‘[i]n respect of a State that is not a party to this Statute, the Court shall not exercise its jurisdiction over the crime of aggression when committed by that State’s nationals or on its territory’.27 That said, the Kampala amendments did not amend Article 12(2)(a) as regards war crimes, crimes against humanity and genocide and in any event have yet to enter into force.28 In light of the above, the first part of Article 12(2)(a) of the Rome Statute (‘in the territory of which the conduct in question occurred’) constitutes the main subject of the present work. The Court’s territorial jurisdiction has not been analysed in detail in the otherwise vast literature dedicated to the ICC Statute. It is the ambition of the present book to make a contribution to the academic debate on this topic and afford to this provision some of the doctrinal attention it merits.

1.1 Objective The endorsement of territorial jurisdiction offers to the Court the opportunity to take its first steps on the basis of an established, ‘legally unassailable’ rule of international law.29 However, notwithstanding the rule’s normative maturity, its application is not free of controversy. Each national 26 27

28

29

See www.icc-cpi.int (last accessed 28 June 2013). Resolution RC/Res. 6, The crime of aggression, adopted at the 13th plenary meeting, on 11 June 2010, by consensus, Annex I, Amendments to the Rome Statute of the International Criminal Court on the Crime of Aggression, available at www.icc-cpi.int/iccdocs/asp docs/Resolutions/RC-Res.6-ENG.pdf (last accessed 18 February 2013). The amendment has not yet entered into force. R.S. Clark, ‘Amendments to the Rome Statute of the International Criminal Court Considered at the First Review Conference on the Court, Kampala, 31 May–11 June 2010’, G¨ottingen Journal of International Law, 2 (2010), 702 on the requirements of thirty ratifications and an ASP decision after 1 January 2017. Kirsch and Robinson, ‘Reaching Agreement at the Rome Conference’, above n. 17, 84.

1.1 objective

7

criminal system has written its own legal history in addressing questions of territoriality.30 It is only natural that the Court will have to do the same. The phenomena themselves are not new. The world of criminal justice is only too familiar with transboundary criminal activity, be it terrorist bombings or drug trafficking, and the use of legal constructions of territoriality to address them. The juridical localization of crimes or the expansion of the territorial scope of application of criminal laws are wellknown examples of such practice.31 On the contrary, the principal legal novelty rests here in the way that such jurisdictional issues can be addressed through the lens of the Rome Statute and the entity seeking to address them. This is important, considering that ‘the permissive nature and scope of jurisdiction under international law vary with the international legal person whose jurisdiction is at issue’.32 The key problem with ICC territoriality appears to be the determination of the precise scope of the territorial parameter of the Court’s jurisdiction. As such, the question is one of interpretation, or more appropriately of identification of the limits to the interpretation of this provision. Accordingly, the primary objective of the present work is an examination of the possible interpretations of Article 12(2)(a) of the Rome Statute concerning the exercise of jurisdiction based on territory under International Law. In keeping with the structure of the key jurisdictional provision under examination, the main topics of this book may be summarized along the following lines. The first may be presented in the form of a question; namely, how little of an international crime need take place on State Party territory for the Court to have jurisdiction under Article 12(2)(a)? This question raises familiar issues concerning the constructive localization of criminal activity and the application of well-known territorial fictions in the case of the ICC Statute. It also provokes more innovative propositions, such as the use of the effects doctrine by the Court in the exercise of its territorial jurisdiction, as well as the exercise of ICC territorial jurisdiction for crimes committed by means of electronic systems and particularly the internet. 30 31 32

I.A. Cameron, ‘Jurisdiction and Admissibility Issues under the ICC Statute’, in McGoldrick et al. (eds.), The Permanent International Criminal Court, above n. 2, 73. H.D. Wolswijk, ‘Locus Delicti and Criminal Jurisdiction’, Netherlands International Law Review, 66 (1999), 361, 380–381. L. Henkin, International Law, Cases and Materials (St Paul, MN: West, 1993), 1048.

8

introduction

The second topic concerns the exercise of ICC territorial jurisdiction in cases of belligerent occupation. This subject involves an in-depth examination of situations where a state loses control over its territory and their consequences for the Court’s territorial jurisdiction. Beyond the more or less settled rules on the matter, an intriguing proposition here is whether the Court may follow human rights jurisprudence, so as to extend its territorial jurisdiction over territories of States not Parties occupied by a State Party to the Statute. In a nutshell, can ‘territory’ be understood as ‘effective control’ for the purposes of Article 12(2)(a)? The third topic constitutes the underlying theme of the entire work and an overall safeguard to ICC jurisdiction. It relates to the limits of ICC territorial jurisdiction under international law. Considering that the Court is an international legal person subject to international law,33 what is the relevant yardstick under international law to measure the lawfulness of its jurisdictional assertions? This issue relates to considerations of ‘reasonableness’, as a concept encompassing aspects of non-intervention and abuse of rights. It refers to the search for a ‘sufficiently close connection’ between an offence and the territory of a State Party. Certain issues will therefore not be addressed. For example, crimes occurring on board vessels or aircrafts and the topic of vessel registration and flag State jurisdiction are excluded. This selection is justified primarily on grounds of space and cohesion, since matters relating to the registration of ships and aircrafts and their relationship with the flag State belong more appropriately to the field of nationality jurisdiction.34 Additionally, the present analysis will not examine in any depth the exercise of territorial jurisdiction in certain particular situations, such as conspiracy criminality and crimes committed on disputed territories. Most of these issues have a distinct national law flavour, appear to be worthy of more extensive case-specific analysis, or have yet to be addressed squarely on the interstate level. Therefore, they have not been considered appropriate for full inclusion in this work. Finally, it should be recalled that this is an examination focused on Article 12(2)(a); therefore, the issue of Palestine will not be examined, as it has yet to be determined if Palestine qualifies as a ‘State’ for the purposes of Article 12(3). 33

34

On the Court’s legal personality, Art. 4 of the Rome Statute, above n. 1. For international organizations in general and international law, Interpretation of Agreement of 25 March 1951 between WHO and Egypt (Advisory Opinion) [1980] ICJ Rep. 73, 89–90. On the nationality of ships, see Art. 91 of the United Nations Convention on the Law of the Sea (UNCLOS), 10 December 1982, 1833 UNTS 397 and M/V Saiga Case (No. 2) (St Vincent v. Guinea) (Judgment), International Law Reports 120 (1999), 143, 144–145.

1.2 structure and approach

9

1.2 Structure and approach Chapter 2 explains briefly a topic well rehearsed in international literature, the territorial reach of State criminal jurisdiction. This chapter establishes the basic vocabulary of the terms of art that will be frequently used later on. It further underlines the limits to State territorial jurisdiction imposed by international law. In this context, the notion of a jurisdictional ‘rule of reason’ is presented as the international law measure for the evaluation of the legality of jurisdictional assertions. Chapter 3 then traces the steps that led to the promulgation of Article 12(2)(a) of the Rome Statute. The preparatory works of the Statute will be analysed here, starting from the 1989 discussions in the International Law Commission (ICC) and leading all the way to the Rome Conference. Chapter 4 identifies the instruments of interpretation of the Rome Statute. Since the position is assumed that the extent of the Court’s territorial reach is primarily a question of interpretation rather than legislation, it is only natural that some space should be dedicated to an analysis of the tools of interpretation at the disposal of the Court. This chapter identifies the instruments to be employed in the interpretation of Article 12(2)(a), and particularly the rules of interpretation of the Statute and Articles 31–32 of the Vienna Convention on the Law of Treaties (VCLT). In doing so, this part further assesses the impact of human rights law (legality and fair trial) to the interpretation of Article 12(2)(a). Chapters 5 and 6 then address the possible use of localization constructions by the Court, particularly ‘subjective territoriality’, ‘objective territoriality’, ‘ubiquity’ and finally the ‘effects doctrine’. Taking the wording of the Statute as a starting point, Chapter 5 explores the meaning of ‘conduct in question’ in Article 12(2)(a) and seeks to analyse certain problems attached to the application of objective territoriality likely to arise in the future, including also crimes over the internet. Chapter 6 attempts to broaden the discussion further, and contemplates the possibility of ‘reading’ in Article 12(2)(a) the effects doctrine of jurisdiction, developed mostly in the context of antitrust law. Policy and legal aspects will be touched upon in this innovative and controversial discussion. A special place is reserved in the chapter for the analysis of certain important aspects of this proposition, such as the form of liability, the territorial nature of jurisdiction and the classification of effects. In this discussion, the ‘sufficiently close connection’ concept under international law, and the use of a similar standard by the Court in the Mbarushimana Case will be critically examined.

10

introduction

Concerning the notion of ‘territory’ itself, where a crime is said to take place for the purposes of Article 12(2)(a), Chapter 7 deals with the issue of the territorial parameters of the Court’s jurisdiction in cases of military occupation. The topic is treated as one intertwined with the territorial scope of application of the Rome Statute as an international treaty. Three scenarios are addressed; the occupation of State Party territory by another State Party (the Ituri scenario) or by a State not Party (the North Cyprus situation), as well as the occupation of State not Party territory by a State Party (e.g Iraq and the United Kingdom). The possibility of interpreting ‘territory’ as ‘effective control’ in tandem with human rights jurisprudence will be explored in this chapter. From a more technical perspective, Chapter 8 addresses certain procedural aspects concerning the Court’s jurisdiction. This chapter examines among other things the power of the Court to review its jurisdiction proprio motu, the definition of a challenge to jurisdiction, standing to raise a challenge and the time limits for such challenges. Ultimately, the above analysis is complemented with certain concluding observations in Chapter 9, the last chapter of this work. The present approach to the analysis of Article 12(2)(a) involves in essence a selection between the two main ways of thinking on ICC jurisdiction; the international law perspective emphasizing comp´etence de la comp´etence, and the criminal law approach stressing the principle of legality.35 The author follows the international law approach. There is therefore a strong emphasis on the competence of the Court to interpret its jurisdiction. This choice is subscribed to, because it is believed that, while subtle, this difference in perspective is significant. It represents the corresponding conceptual difference in selecting to start the analysis from asking what the Court can do when interpreting Article 12(2)(a), as opposed to what the Court cannot or should not do. Accordingly, the present international law analysis does not view the Court as a largely circumscribed entity, whose actions are clinically delimited by the principle of legality of substantive criminal law and the drafters’ attention to minute detail. On the contrary, the Court is identified 35

R. Wedgwood, ‘The Present State of Research Carried Out by the English-Speaking Section of the Centre for Studies and Research’, in The Hague Academy of International Law, Centre for Studies and Research in International Law and International Relations, International Criminal Justice, 2007(27) (The Hague, 2007).

1.2 structure and approach

11

primarily as an able international actor, with the inherent power to decide on its jurisdiction. Therefore, the Court is considered able to interpret the Statute’s provisions in such a way as to formulate appropriate responses to tomorrow’s multiple and variable issues of territorial jurisdiction. The different interpretations of territoriality are not – and arguably should not be – the subject of further legislation by the States Parties. Flexibility in the interpretation of the existing framework suffices to address any legal issues that may arise in the context of this provision. Obviously, such interpretative efforts cannot altogether disregard the principle of legality or the law de lege lata. The Court’s main documents and case-law are to be consulted and appropriately utilized. Be that as it may, the selection of a different starting point of analysis does not necessarily mean that the conclusion will be different from the one reached by other analytical approaches. More than one road may lead to the same conclusion. However, on the way to that destination, it may be that a different perspective on the same issue will yield more possible solutions. It may thus broaden the discussion. It is primarily in an effort to explore such otherwise remote possibilities that this point of view is adopted.

2 Definitions and State territorial jurisdiction

2.1 Introduction Before proceeding with the analysis of the main subject matter of the present work, certain definitions should be provided, in order to clarify the meaning and scope of the legal terms that will be used extensively. In this part, the terms to be defined include the notions of ‘the jurisdiction of the ICC’, ‘territorial jurisdiction’, as well as the various interpretations of the rule of territorial jurisdiction under international law.

2.2 The territorial jurisdiction of the International Criminal Court The terms ‘jurisdiction of the International Criminal Court’ have been interpreted by the ICC Appeals Chamber as denoting the Court’s ‘competence to deal with a criminal cause or matter under the Statute’.1 The Appeals Chamber has further explained that ‘[t]he notion of jurisdiction has four different facets; subject-matter jurisdiction also identified by the Latin maxim jurisdiction ratione materiae, jurisdiction over persons, symbolized by the Latin maxim jurisdiction ratione personae, territorial jurisdiction – jurisdiction ratione loci – and lastly jurisdiction ratione temporis. These facets find expression in the Statute’.2 The Court’s ‘jurisdiction ratione loci’, or its territorial jurisdiction, is at the centre of the present analysis. Accordingly, the term ‘territorial jurisdiction’ will be used to denote the territorial parameter of the Court’s jurisdiction as defined in Article 12(2)(a) of the Rome Statute. Consequently, this work will not refer in any detail to the legal contours of the geographical scope of the Court’s reach in the event of a Security Council referral under Article 13(b) of the ICC Statute. 1

2

Prosecutor v. Thomas Lubanga Dyilo (Judgment on Appeal against Decision on Defence Challenge to Jurisdiction of the Court pursuant to Article 19(2)(a) of the Statute of 3 October 2006) ICC-01/04–01/06–772 (14 December 2006), para. 24. Ibid., para. 21.

12

2.4 territorial fictions

13

2.3 The Lotus Case: territorial jurisdiction in international law The 1927 Lotus Case3 established certain fundamental legal propositions that appear to retain their validity in the contemporary law of State criminal jurisdiction. In that case, the Permanent Court of International Justice (PCIJ) affirmed that Turkey exercised criminal jurisdiction in accordance with international law over a French officer responsible for the collision of two vessels on the high seas and the death of Turkish sailors by negligence.4 In doing so, the PCIJ explained that jurisdiction was an aspect of State sovereignty.5 Accordingly, a State enjoys discretion to select a basis for the exercise of prescriptive jurisdiction, with due regard to any limitations imposed by international law.6 While States enjoy extensive liberty in asserting prescriptive jurisdiction, enforcement jurisdiction may be exercised only within their territory.7 Today, the relationship between rules of prescriptive and enforcement jurisdiction is sufficiently clear on the basis of Lotus; ‘There can be no enforcement jurisdiction unless there is prescriptive jurisdiction; yet there may be a prescriptive jurisdiction without the possibility of an enforcement jurisdiction, as for example, where the accused is outside the territory of the prescribing State and not amenable to extradition.’8

2.4 Territoriality and territorial fictions Under contemporary international law every State has the right to exercise jurisdiction for a crime committed within its territory, irrespective of the 3 4 5

6

7 8

The Case of the S.S. Lotus (France v. Turkey) PCIJ Res Ser. A, No. 10 (1927). Ibid., at 20. C. Ryngaert, Jurisdiction in International Law, Oxford Monographs in International Law (Oxford University Press, 2008), 29. Further, G. Schwarzenberger, International Law as Applied by International Courts and Tribunals (3rd edn, London: Stevens, 1957), vol. I, 184; M. Sahovi´c et al., ‘The Authority of the State: Its Range with Respect to Persons and Places’, in M. Sørensen (ed.), Manual of Public International Law (London: Macmillan, 1968), 314; J. Brierly, The Law of Nations: An Introduction to the International Law of Peace (6th edn, Oxford: Clarendon Press, 1963), 162. P. Weil, ‘International Law Limitations on State Jurisdiction’, in C. Olmstead (ed.), Extraterritorial Application of Law and Responses Thereto (Oxford: International Law Association, 1983), 101–102; M. Morris, ‘High Crimes and Misconceptions: The ICC and Non-Party States’, Law and Contemporary Problems, 64 (2001), 13, 48–51, makes the argument that this position is applicable also with regard to international tribunals and in particular the ICC. Lotus Case, above n. 3, 18–19. D.W. Bowett, ‘Jurisdiction: Changing Patterns of Authority over Activities and Resources’, British Yearbook of International Law, 53 (1982), 1.

14

definitions and state territorial jurisdiction

nationality of the offender. This constitutes one of the best-established rules of customary international law9 and treaty law.10 While the legal status of the rule itself is universally accepted, its content seems to have undergone substantial changes. The dominant assumption of the pre-industrial age that the preparation of a crime, its completion and the criminal him/herself would be situated in the territory of a single State was radically challenged by technological advancement and new forms of cross-border criminal activity.11 Another important factor in this development was ‘the increasing complexity of the “act or omission” which constitutes crime under modern penal legislation. The “act or omission” need not consist of an isolated action or failure to act. Not infrequently it appears as an event consisting of a series of separate acts or omissions.’12 Therefore, in search of a way to handle ‘jurisdiction over mobile things’13 or just over the classic cross-border shooting situation,14 authors and judges attempted to accommodate the novel legal phenomena of the day by resorting to legal fictions. One of them was the theoretical fiction of ‘constructive presence’, i.e. the exercise of jurisdiction by the territorial State of origin or consequences of the crime on the basis of the perpetrator’s constructive presence there.15 9 10

11

12 13 14

15

Lotus Case, above n. 3, 18–20. For the historical development of this rule, Ryngaert, Jurisdiction in International Law, above n. 5, 44. From international instruments, see indicatively Art. 1 of the Statute of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, 25 May 1993, UNSC Res. 827, UN Doc. S/RES/827; Art. 1 of the Statute of the International Criminal Tribunal for Rwanda, 8 November 1994, UNSC Res. 955, UN Doc. S/RES/955; Art. VI of the Convention on the Prevention and Punishment of the Crime of Genocide, Paris, 9 December 1948, entered into force 12 January 1951, 78 UNTS 277, 279; Art. 2 of the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, 10 December 1984, entered into force 26 June 1987, 23 ILM 1027, 1028; Art. 9(1)(a) of the International Convention against the Recruitment, Use, Financing and Training of Mercenaries, New York, 4 December 1989, entered into force, 20 October 2001, UNGA Res. 44/34 (4 December 1989), UN Doc. A/RES/44/34. L. Sarkar, ‘The Proper Law of Crime in International Law’, International and Comparative Law Quarterly, 11 (1962), 446; Somchai Liangsiripraesert v. US (1990) 29 ILM 1390, 1401, M. Hirst, Jurisdiction and the Ambit of Criminal Law (Oxford University Press, 2003), 29. Harvard Law School, ‘Draft Convention on Jurisdiction with Respect to Crime’, American Journal of International Law Supplement, 29 (1935), 435, 484. Bowett, ‘Jurisdiction’, above n. 8, 4–5. State v. Hall, 114 NC 909, 19 SE 602 (1894); R. M. Perkins, ‘The Territorial Principle in Criminal Law’, Hastings Law Journal, 22 (1970–1971), 1158; County Council of Fermanagh v. Farrendon, 2 ILR 109, 109–110 (1933). Strassheim v. Daily, 211 US 280, 285 (1911); Lotus Case, above n. 3, Dissenting Opinion of Judge Moore, at 73; Mobarik Ali Ahmed v. State of Bombay, AIR 1957, SC 857.

2.4 territorial fictions

15

This fiction was widely endorsed by States. It became known as the subjective and objective aspects of the rule of territorial jurisdiction,16 which today are said to be ‘universally recognized as a legitimate application of the territorial principle’.17 These terms form part of the language of territorial jurisdiction itself and thus enable States ‘to act within an accepted conceptual framework of legality’.18 The distinction between subjective and objective territoriality is not a very rigid one and does seem at times somewhat artificial. This is evident particularly when certain forms of criminal activity are punishable without regard to consequences (conduct crimes), or their ‘consequences’ are more remote and indeterminate (e.g. ‘abstract endangerment offences’ – offences committed through transmission/broadcasting). In fact, opinions vary as to whether, for example, ubiquity constitutes a separate theory of jurisdiction altogether or whether it falls under subjective territoriality;19 whether protective jurisdiction and objective territoriality overlap;20 similarly, the effects doctrine of jurisdiction has been considered mostly as a ‘grey zone’, half way between civil and criminal jurisdiction, for some more closely related to the rule of protective jurisdiction than territoriality.21 Considering that the lines are not as clear-cut as one would like to believe,22 there is some merit in presenting all these different approaches as falling under a single heading of ‘qualified territoriality’, without attaching too much significance to individual labels.23 16

17 18 19

20

21 22 23

From common law jurisprudence on the use of the terms, R. v. Duncan Wallace Smith [1996] (No. 2), 2 Cr. App. R 1; R. v. Smith (Wallace Duncan) (No. 4) [2004] 2 Cr. App. R 17. Hirst, Jurisdiction, above n. 11, 113. M. Byers, Custom, Power and the Power of Rules (Cambridge University Press, 1999), 64. I. Bantekas, International Criminal Law (4th edn, Oxford: Hart, 2010), 332–334; C.L. Blakesley, ‘Jurisdictional Issues and Conflicts of Jurisdiction’, in M.C. Bassiouni (ed.), Legal Responses to International Terrorism (Dordrecht: Martinus Nijhoff, 1988), 156–157. Bantekas, International Criminal Law, above n. 19, 335–336; for a discussion on the distinction between the two, see M. Akehurst, ‘Jurisdiction in International Law’, British Yearbook of International Law, 46 (1972–1973), 159, n. 1; I.A. Cameron, The Protective Principle of International Criminal Jurisdiction (Aldershot: Dartmouth, 1994), 64–67. Cameron, The Protective Principle, above n. 20, 64–67; J. Crawford, Brownlie’s Principles of Public International Law (8th edn, Oxford University Press, 2012), 477. Cameron, The Protective Principle, above n. 21, 53. G. Gilbert, ‘Crimes sans fronti`eres: Jurisdictional Problems in English Law’, British Yearbook of International Law, 63 (1992), 415, 430. As regards the ICC Statute, S. Bourgon, ‘Jurisdiction Ratione Loci’, in A. Cassese et al. (eds.), International Law (2nd edn, Oxford University Press, 2005), 559, 567; M. Wagner, ‘The ICC and its Jurisdiction: Myths, Misperceptions and Realities’, Max Planck Yearbook of United Nations Law, 7 (2004), 409, 485.

16

definitions and state territorial jurisdiction

It is therefore without prejudice to any theoretical claims of autonomy or dichotomy of the relevant terms that the next few pages will explain briefly for the purposes of the present work the subjective and objective territorial approaches. Reference will also be made here to the doctrine of ubiquity, the main criterion of which is whether ‘a crime was committed in whole or in part within a State’s territory’. This doctrine will be analysed together with objective territoriality, as they appear to be very closely related.24 Last, but not least, reference will be made to the effects doctrine on jurisdiction.

2.4.1 Subjective territoriality Subjective territoriality25 is described as the jurisdiction ‘to prosecute and punish for crimes commenced within the State but completed or consummated abroad’.26 This proposition is today generally uncontroversial.27 While the option between ‘subjective or objective’ territoriality was frequently discussed at the beginning of the twentieth century, eventually it became evident that ‘there was no logical reason for preferring the claims of one State over the claims of the other; and the only alternative to granting jurisdiction to neither state, . . . was to grant jurisdiction to both States’.28 From the point of view of international law, the usefulness of this theoretical division is probably diminished today. This is due to the development of objective territoriality and particularly ubiquity, which provide for jurisdiction when a constituent element or ‘part’ of a crime takes place on national territory. To the extent therefore that preparatory acts, attempts or the commencement of the commission of a crime may be properly classified as a ‘constituent element’ thereof, the relevant issues may be addressed through those approaches to the territorial rule. 24

25 26 27 28

Among others, H.D. Wolswijk, ‘Locus Delicti and Criminal Jurisdiction’, Netherlands International Law Review, 66 (1999), 361, 367 identifies four locus delicti theories, the ‘[physical] act theory’, the ‘instrument’ theory, the ‘result theory’, and the ‘ubiquity theory’, whereas A. Hu´et et al., Droit P´enal International (Paris: Presses Universitaires de France, 2000), 203, mention the theories of action, of result and of ubiquity. Also called the ‘initiatory theory’; G. Williams, ‘Venue and the Ambit of Criminal Law’, Law Quarterly Review, 81 (1965), 518, 520. Harvard Draft Convention, above n. 12, 484. Crawford, Brownlie’s Principles, above n. 21, 458, with further references; L. Oppenheim et al. (eds), Oppenheim’s International Law (London: Longman, 1992), vol. I, 460. Akehurst, ‘Jurisdiction in International Law’, above n. 20, 152.

2.4 territorial fictions

17

2.4.2 Objective territoriality/ubiquity Originally, objective territoriality stood for the exercise of criminal jurisdiction when the crime was completed on State territory.29 As early as 1887, it was asserted that objective territoriality was an interpretation of territoriality recognized in the criminal jurisprudence of all states.30 In 1927 the PCIJ in the Lotus Case gave its endorsement to this rule. The Court held that Turkey was entitled to exercise jurisdiction on the basis of objective territoriality, because the effects of the collision of the two ships on the high seas took place on the Turkish vessel, which could be assimilated to Turkish territory.31 The Court asserted that ‘the courts of many countries, even of countries which have given their criminal legislation a strictly territorial character, interpret criminal law in the sense that offences, the authors of which at the moment of commission are in the territory of another State, are nevertheless to be regarded as having been committed in the national territory, if one of the constituent elements of the offence, and more especially its effects, have taken place there’.32 Therefore, a State may validly exercise jurisdiction, when an effect, in the sense of ‘a direct physical result which is itself a constituent or essential element in the offence charged’ occurs in its territory.33

2.4.2.1 Scope; defining constituent elements; intent, modes of participation, attempt and preparatory acts In Lotus, the PCIJ did not explain what exactly qualified as a ‘constituent element’ of a crime. Thus, the qualification of an element as constituent or otherwise was left to be determined by domestic law.34 National practice seems to accept that an element is deemed ‘constituent’ of an offence, when without it an offence would not be 29 30

31 33 34

Akehurst, ibid., 152–153 et seq.; Lotus Case, above n. 3, 23; Harvard Draft Convention, above n. 12, 485–6 et seq. J. Moore, US Department of State, Report on Extraterritorial Crime and the Cutting Case (Washington, DC: Government Printing Office, 1887), 23; Strassheim v. Daily, 211 US 280, 285 (1911). 32 Lotus Case, above n. 3, 23. Ibid. R. Y. Jennings, ‘The Limits of State Jurisdiction’, in R. Y. Jennings, The Collected Writings of Sir Robert Jennings (The Hague: Kluwer Law International, 1998), vol. II, 892–893. C. Ryngaert, ‘Territorial Jurisdiction over Cross-Frontier Offences: Revisiting a Classic Problem of International Criminal Law’, International Criminal Law Review, 9 (2009), 187, 188; Wolswijk, ‘Locus Delicti’, above n. 24, 366, n. 8; Bantekas, International Criminal Law, above n. 19, 335–336.

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characterized or prosecuted as such. This is the position under French35 and English criminal law.36 A similar approach is evidenced also in international conventions.37 That said, the issue of the compatibility of certain national classifications of elements as constituent or otherwise with international law is an entirely different matter, one that remains largely untouched by jurisprudence.38 As regards intent, today it is settled law that the location of the result within State territory suffices for the purposes of State territorial criminal jurisdiction, irrespective of whether it is the intended location of the result or not.39 The issue was disputed at the time of the Lotus.40 The PCIJ took the view that objective territorial jurisdiction was equally applicable to manslaughter, a crime of negligence. Any other decision, said the Court, would render the offence ‘non-existent’, as effects and intent are inseparable elements of a crime.41 This solution enhances legal certainty, since to hold otherwise would be tantamount to making State criminal jurisdiction dependent on the intent of the perpetrator, rather than the manifestation of the criminal result.42 That said, the question of intent as a ‘constituent element’ as such is a separate issue that should not be 35

36

37 38

39 40

41 42

For French practice, Art. 693 of the Code de Proc´edure P´enale (Fr.) and Arts. 113–122 of the Code P´enal (Fr.), available at: www.legifrance.gouv.fr (last accessed 26 February 2013); In Re Feld and Newman, Cour de Cassation, 25 May 1967, 48 ILR 88 (Fr.), interpreting Art. 693 of the French Code de Proc´edure P´enale at the time. R. Merle et al., Trait´e de Droit Criminel (7th edn, Paris: Editions Cuja, 1997), 402–403; F. Desportes et al., Droit P´enal G´en´eral (14th edn, Paris: Dalloz 2007), 338–339. Section 2 of Criminal Justice Act 1993 (UK), available at: www.legislation.gov.uk/ukpga/ 1993/36/contents (last accessed 26 February 2013); C. Warbrick and G.R. Sullivan, ‘Current Developments: Criminal Jurisdiction’, International & Comparative Law Quarterly, 43 (1994), 462–463. Art. IV of the Inter-American Convention on forced Disappearance of Persons, Bel´em do Para, 6 September 1994, entered into force 28 March 1996, ILM 1994, at 1529. I. Hunter, ‘Specific Application to Antitrust Matters of General Principles of International Law Governing the Assumption and Exercise of Jurisdiction’, in International Law Association Report of the Fifty-Fourth Conference (The Hague, 1970) 221, 227; Cameron, The Protective Principle, above n. 20, 58. Akehurst, ‘Jurisdiction in International Law’, above n. 20, 155. Early English and US doctrine had taken the position that objective territorial jurisdiction could be exercised only if the crime was wilfully committed. See indicatively W.E. Beckett, ‘Criminal Jurisdiction over Foreigners: The Franconia and the Lotus’, British Yearbook of International Law, 8 (1927), 108, 127–128; Harvard Draft Convention, above n. 12, 488. Lotus Case, above n. 3, 23, and Judge Loder’s Dissenting Opinion, ibid., 37; Judge Moore’s Dissenting Opinion, ibid., 82. J. Brierly, ‘The ‘Lotus Case’, in H. Lauterpacht (ed.), The Basis of Obligation in International Law and Other Papers (Oxford: Clarendon Press, 1958), 146.

2.4 territorial fictions

19

confused with the issue of the application of objective territoriality to the location of the intended consequences of the crime.43 The localization of participation to a crime is strongly affected by national law on individual criminal responsibility. Accordingly, national approaches may very significantly.44 Therefore, without delving into the national law intricacies of aiding, abetting, conspiracy and perpetratorship, ample authority seems to exist in support of certain general rules; if the main offence is committed in the territory of the prosecuting State, all other acts relating to it must be considered to have been constructively committed there as well.45 The same is true in reverse.46 The issue of incitement to commit a crime is more complicated, particularly in the internet age.47 From general criminal law, there is case-law to suggest that, if incitement takes effect in the territory of a State, that State has territorial jurisdiction under objective territoriality to prosecute the inciter, even if the act of incitement took place abroad.48 Evidently, approaches to territorial jurisdiction may differ, depending on whether 43

44

45

46

47 48

It is difficult to find clear national approaches to this question. The issue has been debated in the context of French criminal law, where it is authoritatively stated that only ‘´el´ements mat´eriels’ may qualify as constituent elements for the purposes of constructive localisation; intent, per se, does not suffice, unless it is manifested through material acts at least to such an extent as to constitute an attempt; Merle et al., Trait´e de Droit Criminel, above n. 35, 402, n. 13. For detailed studies on the matter, OECD Convention on Combating Bribery of Foreign Public Officials in International Business Relations, Paris, 21 November 1997, entered into force 15 February 1999, 37 ILM 1, 5 and its authoritative commentary; M. Pieth, The OECD Convention on Bribery: A Commentary (Cambridge University Press, 2007) with extensive resources and references. For a recent comparative study, see Ryngaert, ‘Territorial Jurisdiction’, above n. 34, 187–209. From international treaty law, see Art. 4(1)(b)(iii) of the Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, Vienna, 20 December 1988, entered into force 11 November 1990, 28 ILM 493; Art 4 of the Bribery Convention, above n. 44, Pieth, The OECD Convention on Bribery, above n. 44, 278–279, in cases of aiding and abetting, if the main perpetrator acts at home and the accessory is acting abroad, the States Parties to that Convention would legitimately exercise territorial jurisdiction. Pieth, The OECD Convention on Bribery, above n. 44, 279; ‘[M]ere aiding or abetting is sufficient to create the territorial link. Only Supreme Court practice in Switzerland has so far insisted that, since the main offender is acting abroad, the crime is considered foreign’, with references to UK, French, German, Italian and Japanese practice. For a clear national position, Bertchmann v. Soci´et´e Anonyme des Charbonnages d’Argenteau, Cour de Cassation [Cass.] [Court of Cassation] 22 ILR 207, 208 (1958) (Belg.); Further, F.A. Mann, ‘The Doctrine of Jurisdiction in International Law’, Recueil des Cours de l’Acad´emie de Droit Internationale, 111 (1964-I), 98. See in detail below Section 5.6. Novi´c v. Public Prosecutor of the Canton of Basel-Stadt, Cour de Cassation [Cass.] [Court of Cassation], 22 ILR 515 (1955) (Switz.), at 517.

20

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incitement is considered as a form of accessory liability or a substantive crime.49 The exercise of territorial jurisdiction in cases of attempt to commit a crime varies significantly in national law.50 While there is authority for the view that the target State of the crime has territorial jurisdiction over the attempt, even if no overt acts take place there,51 others require the manifestation of some overt acts on State territory.52 International treaties do not seem to offer any clear solutions on the point, since the criminalization of attempts is usually ‘subject to the basic concepts of the State Party’s legal system’.53 49

50

51

52

53

This would be the case, for example, with crimes such as public incitement to hatred and incitement to racism. For the application of territorial jurisdiction in such cases, see the T¨oben decisions in detail in Section 5.7. Incitement to genocide under international criminal law seems to be particularly affected by the dichotomy between substantive (inchoate) crime versus accessory liability; cf. here Art. 4(3)(c) of the ICTY Statute, and Art. 25(3)(e) of the ICC Statute; ICTR case-law demonstrates a certain confusion on the matter; W.A. Schabas, The UN International Criminal Tribunals, the Former Yugoslavia, Rwanda and Sierra Leone (Cambridge University Press, 2006), 181–182. Further, below Section 5.6. Ryngaert, ‘Territorial Jurisdiction’, above n. 34, 207–209; Cameron, The Protective Principle, above n. 20, 68, according to whom territorial jurisdiction over attempts is further complicated by constructions relating to continuity. Somchai Liangsiripraesert v. US, above n. 11; R. v. Latif, R. v. Shahzad, [1996] 1 WLR 104 347 1 All ER 353, 365; US v. Yousef, 327 F.3d 56, 112 (2nd Cir., 2003); US v. Davis, 905 F.2d 245, 248 (9th Cir., 1990); US v. Peterson, 812 F.2d 486, 493 (9th Cir., 1987). From Israeli practice, Israeli Penal Code, Art. 7(a)(2) and the discussion in The State of Israel v. Ze’ev Rosenstein, below n. 135, at para. 23, as well as ‘Israel’, in OECD, Review of Implementation of the Convention and 1997 Revised Recommendation (19 March 2009), paras. 89–93, available at: www.oecd.org/document/24/0,3343,en_2649_34859_1933144_1_1_1_1,00.html (last accessed 26 February 2013). From Namibian Criminal Law, S v. Mwinga, [1994] NACH 10, 13–14. From civil law jurisdictions, see Art. 8, para. 2 of the Code P´enal Suisse [Swiss Criminal Code], available at: www.admin.ch/ch/f/rs/311 0/a8.html (last accessed 26 February 2013). From French law, A. Hu´et and R. Koering-Joulin, Droit P´enal International (Paris: Presses Universitaires de France, 2000), 220, outline the arguments for and against without supporting either position. From international literature, see further C. Blakesley, ‘Jurisdictional Issues and Conflicts of Jurisdiction’, in M.C. Bassiouni (ed.), Legal Responses to International Terrorism: US Procedural Aspects (Dordrecht: Martinus Nijhoff, 1988), 160. Akehurst, ‘Jurisdiction in International Law’, above n. 20, 154, n. 2, claimed that the constituent elements approach is not applicable in cases of attempts or conspiracies; from national practice, C. Hennau et al., Droit P´enal G´en´eral (3rd edn, Brussels: Bruylant, 2003), 78 (Belgian criminal law). Art. 6(2)(a) of the Protocol against the Smuggling of Migrants by Land, Sea and Air, Supplementing the 2000 UN Convention against Transnational Organized Crime, Palermo, 12 December 2000, entered into force 28 January 2004, UNGA Res. 55/25 (UN GAOR Suppl. No. 49) UN Doc. A/45/49; Art. 5 of the Protocol against the Illicit Manufacturing

2.4 territorial fictions

21

The problem of territorial jurisdiction over attempts is further complicated when jurisdictions are called upon to distinguish between preparatory acts and attempts to commit crimes.54 Different positions can also be supported as regards the definition of attempt as a substantial step and the question of preparatory acts under the Rome Statute.55 Mantovani, for example, subscribes to a teleological reading of the notion of attempt, one that includes also preparatory acts,56 whereas Ambos seems to distinguish between them.57 These are only some indications of State practice. There are also issues concerning the exercise of territorial jurisdiction on the basis of the doctrine of connexit´e/indivisibility of the offence58 as well as commission by

54

55 56 57

58

of and Trafficking in Firearms, their Parts and Components and Ammunition, New York, 31 May 2001, entered into force 3 July 2005, UNGA Res. 55/255, UN Doc. A/RES/55/255. For international crimes, Art. 2(3)(g) of the Draft Code of Crimes against the Peace and Security of Mankind, Yearbook of the International Law Commission, 2 (1996) UN Doc. A/CN.4/SER.A/1996. Wolswijk, ‘Locus Delicti’, above n. 24, 372, on the issue of preparatory acts and territorial jurisdiction in general; Pieth, The OECD Convention on Bribery, above n. 44, 278, with references to comparative criminal national practice on preparatory acts and attempts. In certain international conventions, preparatory acts are criminalized per se. See for example Art. 22 (2)(a)(ii) of the Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, above n. 45; Art. 27 of the UN Convention against Corruption, M´erida, 9 December 2003, entered into force 14 December 2005, UNGA 68/4, UN Doc. A/RES/58/4. From Canadian case-law, indicatively, R. v. Deutsch [1986] SCR 2, ‘No satisfactory general criterion has been, or can be, formulated for drawing the line between preparation and attempt’. For the difference in the exercise of territorial jurisdiction between preparatory acts or conditions pr´ealables and constituent elements in French doctrine, Merle et al., Trait´e de Droit Criminel, above n. 35, 402–403 for the old position, Desportes et al., Droit P´enal G´en´eral, above n. 35, 338–339 for the new approach (the distinction between constituent elements and preparatory acts has been rejected by the Chambre Criminel of the Cour de Cassation and even the perpetration of preparatory acts suffices for the constructive localization of criminal activity in France). Art. 25(3)(f) of the Rome Statute of the International Criminal Court, Rome, 7 July 1998, entered into force 1 July 2002, 2187 UNTS 3. F. Mantovani, ‘The General Principles of International Criminal Law: The Viewpoint of a National Criminal Lawyer’, Journal of International Criminal Justice, 1 (2003), 26, 33–34. K. Ambos, ‘Article 25’, in O. Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court: Observers’ Notes, Article by Article (2nd edn, Munch: BeckHart-Nomos, 2008), 763. Connexit´e indicates joint prosecution or connexity of two crimes before the same court, on account of their ‘connection’. The issue was not considered by the Court in the Lotus Case, above n. 3, 31. Individual judges, however, dismissed it, on the grounds that ‘[j]oinder on the ground of “connexity” is a proceeding under municipal law, “connexity” does not create jurisdiction’, Judge Loder, Dissenting Opinion, at 38 and Judge Weiss, Dissenting Opinion, at 43. From human rights law, Co¨eme et al. v. Belgium (Application Nos. 32492/96, 32547/96, 32548/96, 33209/96 and 33210/96) 2000-VII ECHR 75. From

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proxy.59 In this context, in certain treaties it is stipulated that the commission of one crime within one State with a view to commit another serious crime within another entitles the latter State to exercise criminal jurisdiction over both crimes as an optional ground for jurisdiction.60 In conclusion, international law recognizes the right of States to exercise jurisdiction on the premise that a crime is committed where a constituent element thereof has taken place or, in the alternative, that a State has jurisdiction over crimes completed in its territory.61 Certain aspects of the rule are unclear in the specifics. This indicates that resort to general principles may be called for. In this framework, the best position in international law seems to be that the exercise of State authority is considered lawful, provided that a sufficiently close connection exists between the State exercising jurisdiction and the crime at hand.62

2.4.2.2 Ubiquity Evidently, objective territoriality is not without its shortcomings. There are questions that remain without authoritative guidance in international

59

60

61

62

French law, Merle et al., Trait´e de Droit Criminel, above n. 35, 403–404; Desportes et al., Droit P´enal G´en´eral, above n. 35, 343–344. It has been suggested, for example, that ‘a person who is himself in one country may, by the hands of an innocent agent, commit a crime in another country though, of course he cannot be tried till he comes there’; Musisi v. Republic [1969] EA 493, (1969) 48 ILR 91 (HCK) (Kenya), with further references to common law jurisprudence. See Art. 15 (2)(c) of the United Nations Transnational Organized Crime Convention, New York, 12 December 2000, entered into force 25 December 2003, UNGA Res. 55/25 (GAOR Suppl. No. 49) UN Doc. A/45/49; Art. 7(2)(a–c) of the International Convention for the Suppression of the Financing of Terrorism, New York, 9 December 1999, entered into force 10 April 2002, 39 ILM 268 (2000), UNGA Res. 54/109, UN Doc. A/RES/54/109. Akehurst, ‘Jurisdiction in International Law’, above n. 20, 152; National statutes provide for different formulations of objective territoriality: Art. 113–2 Code P´enal (Fr.); s. 2 Criminal Justice Act 1993 (Eng.); s. 2 Strafgesetzbuch [StGB] [Penal Code] (Ger.), available at: www.iuscomp.org/gla/statutes/StGB.htm (last accessed 26 February 2013); Chapter 2 Section 1 Brottsbalken [Criminal Code] (Swed.), available at: www.sweden. gov.se/sb/d/3926/a/27777 (last accessed 26 February 2013); Art. 8 Code P´enal Suisse [CP] [Criminal Code] (Switz.), available at: www.admin.ch/ch/f/rs/311 0/a8.html (last accessed 5 February 2013); Art. 6 Criminal Code of the People’s Republic of China. There are also codifications of criminal law that make no explicit reference to this approach, but leave the matter to judicial interpretation; in that spirit, St. 11, Ugolovnyi Kodeks Rossiiskoi Federatsii (UK RF) (Criminal Code) (Russ.), available at: www.russian-criminal-code. com (last accessed 26 February 2013); Finally, for an application of this rule from a not strictly national court, see the Control Commission Court of Appeal in Germany (British Zone), Director of Prosecutions v. Hobbs, 17 ILR 138 (27 April 1950) 139 (smuggling by post in occupied Germany). Mann, ‘The Doctrine of Jurisdiction’, above n. 46, 46–47; Oppenheim et al., International Law, above n. 27, 457–458; Bowett, ‘Jurisdiction’, above n. 8, 3–4. In detail, below Section 2.5.

2.4 territorial fictions

23

law, such the definition of a constituent element.63 Likewise, no yardstick is available to measure where a crime ‘commences’ and where is it ‘completed’. In the context of English law it was stated that ‘there is no general guide which would separate the relevant occurrences into formally exclusive categories providing a basis for the choice, such as, in Lord Diplock’s terms, “acts” and “consequences”’.64 If such a ‘general guide’ does not exist within a single criminal justice system, one can easily understand just how complex the situation is in the event that a single set of criminal activities is examined under the laws of more than one State. Arguably, most classification difficulties under objective territoriality are rendered moot by the familiar approach to territorial jurisdiction today on the basis of the commission of a crime ‘in whole or in part’ within State territory. This is known as the doctrine of ubiquity, which provides that ‘an offence as a whole may be considered to have been committed in the place where a part of it has been committed’.65 The relationship between objective territoriality and ubiquity is not always clear. In the opinion of the European Committee on Crime Problems (CDPC), objective territoriality is one of the forms of the doctrine of ubiquity.66 The notion of ‘part of an offence’ remains a matter for interpretation. In this context, the main advantage of ubiquity rests in its flexibility. Ubiquity proposes as the critical element for the exercise of criminal jurisdiction ‘whether “part of the whole story” – part of the totality of the offender’s activities – took place within the territory of the State, irrespective of whether this act is a constituent element of the crime’.67 Thus, national courts may take into account all the factual circumstances, in deciding whether that State has a sufficient interest in prosecuting a case, including ‘preparatory (non-constituent) acts as well as non-constituent effects’.68 The main criticism against ubiquity is that it extends far and wide the number of States competent to exercise jurisdiction. This may lead to jurisdictional conflicts among States and multiple convictions of the 63 64 65

66 67

Hirst, Jurisdiction, above n. 11, 46; Wolswijk, ‘Locus Delicti’, above n. 24, 368–370. P. G. Fitzpatrick, ‘The Location of a Crime: A Comment on Treacy v. Director of Public Prosecutions’, International and Comparative Law Quarterly, 21 (1972), 160, 163. Council of Europe, European Committee on Crime Problems, Extraterritorial Criminal Jurisdiction (1990), 8; From US practice, Perkins, ‘The Territorial Principle’, above n. 14, 1162. Council of Europe, European Committee on Crime Problems, Extraterritorial Criminal Jurisdiction, above n. 65, 8. 68 Wolswijk, ‘Locus Delicti’, above n. 24, 372. Ibid.

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offender for the same offence.69 Thus, while this theory appears to be ‘le syst`eme id´eal’, since it vests jurisdiction in national courts in cases where the other approaches would fail to do so, there have been calls for moderating its application, in order to avoid excessive and overlapping jurisdictional claims.70 Be that as it may, international practice demonstrates a growing acceptance of ubiquity.71 In light of these developments, it appears that the doctrine of ubiquity is increasingly accepted as a manifestation of territorial jurisdiction under customary law.

2.4.2.3 The effects doctrine The effects doctrine is the latest variant of territorial jurisdiction, according to which a State has jurisdiction over conduct that takes place abroad that produces effects within its territory. The notion of ‘effects’, however, is to be differentiated from the ‘constituent elements’ approach. Effects, in this context, are understood as ‘economic repercussions or consequences’, which may or may not be physically readily identifiable, but do not form part of the criminal description of the offence.72 69

70 71

72

Hu´et and Koering-Joulin, Droit P´enal International, above n. 51, 204; Council of Europe, European Committee on Crime Problems, above n. 65, 25; L. Hall, ‘“Territorial” Jurisdiction and the Criminal Law’, Criminal Law Reports (1972), 276, 284–285. Hu´et and Koering-Joulin, Droit P´enal International, above n. 51, 204. Art. 4(1) of the Convention on Combating Bribery, above n. 44; Pieth, The OECD Convention on Bribery, above n. 44, 278–280; Art. 17 (1)(a) of the Council of Europe Criminal Law Convention on Corruption, Strasbourg, 27 January 1999, entered into force, 1 July 2002, CETS No. 173, available at: http://conventions.coe.int/Treaty/en/Treaties/Html/173. htm (last accessed 27 February 2013); Art. 4(f) of the Treaty on Extradition, New York, 14 December 1990, 30 ILM 1407, UNGA Res. 45/116, UN Doc. A/RES/45/116; Art. 7 of the Council of Europe European Convention on Extradition, Paris, 13 December 1957, CETS No. 24, available at: http://conventions.coe.int/Treaty/en/Treaties/Html/024.htm (last accessed 27 February 2013), and a number of international and other instruments adopted in the framework of the European Union; Art. 8 of the EU Council Framework Decision on the Protection of the Environment through Criminal Law, 2003 OJ (L 29/55); Art. 8 of the EU Council Framework Decision on Combating the Sexual Exploitation of Children and Child Pornography, 2004 OJ (L 13/44); Art. 4 of the EU Council Framework Decision of 13 June 2002 on the European Arrest Warrant and the Surrender Procedures between Member States, 2002 OJ (L 190/1); Art. 7, 10(2)(a) of the Convention drawn up on the basis of Article K.3 of the Treaty of European Union on the protection of the European Communities financial interests 1997 OJ (C. 195) 2; Art. 9(1)(a) (4) of the EU Council Framework Decision on Combating Terrorism 2002 OJ (L.164) 3; Art. 5(e) of the South Africa Development Community’s (SADC) Luanda Protocol on Extradition, 3 October 2002, available at: www.iss.co.za/af/regorg/unity to union/pdfs/sadc/protextra. pdf (last accessed 27 February 2013). C. Ryngaert, Jurisdiction over Antitrust Violations in International Law (Antwerp: Intersentia, 2008), 17; Wolswijk, ‘Locus Delicti’, above n. 24, 366.

2.4 territorial fictions

25

The birth of this application of territoriality took place in a somewhat clumsy attempt of US courts to address antitrust violations in the aluminium market at the end of the Second World War in the ALCOA judgment.73 The Court of Appeals of the Second Circuit was called upon to decide whether the Aluminium Company of America was monopolizing interstate and foreign commerce particularly in the manufacture and sale of ‘virgin’ aluminium ingots and whether it had entered into a conspiracy in restraint of such commerce.74 A key issue was whether the participation of one of the Canadian defendants in the formation of a Swiss company and the conclusion of two agreements, which provided limitations on production and price-fixing between the participating undertakings, constituted violations of s. 1 of the Sherman Act.75 It was in this context that the Court of Appeals famously stated that ‘it is settled law – as “Limited” itself agrees – that any state may impose liabilities, even upon persons not within its allegiance, for conduct outside its borders that has consequences within its borders, which the state reprehends; and these liabilities other states will ordinarily recognize’.76 The Court of Appeals went on to explain that, in its interpretation of the Sherman Act, the agreements would be unlawful, ‘though made abroad, if they were intended to affect imports and did affect them’.77 The Court of Appeals however failed to articulate clearly what the effect was in that case.78 The effects doctrine made legal history. From 1945 until 1982, its application gave rise to a well-documented legal conflict between the State seeking to regulate the conduct (notably the United States) and the States, whose nationals (natural or legal persons) were threatened with the severe criminal and civil penalties of US antitrust laws.79 The implementation 73 74 76 78

79

United States v. Aluminum Company of America (AlCOA) et al., 148 F.2d 416 (2nd Cir., 1945). 75 Ibid., 421. Sherman Antitrust Act, 15 USC ss. 1–6 (1890). 77 United States v. Aluminum Company of America et al., above n. 73, 443. Ibid., 444. Ibid., 445. This occurred because the Appeals Court decided that once intent was proven, the burden to prove the existence of effects should be reversed, so that the defendants had to prove that effects did not take place. The Sherman Antitrust Act, above n. 75, at s. 1, as currently in force, stipulates that any person engaging in the activities mentioned therein, including the formation of trusts and monopolies and other activities ‘in restraint of trade’, shall be deemed guilty of a felony and, if convicted, shall be punished by a large fine or by imprisonment not exceeding three years or by both punishments. The requirement of injury is not present in the Sherman Antitrust Act. Kruman et al. v. Christie’s International et al., 284 F.3d 384, 386 (2nd Cir., 2002). See indicatively R.D. Blair et al., ‘Antitrust Damages: Theory and Practice’, Antitrust Bulletin, 51 (2006), 449, 449–453, for class action suits and treble damages.

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of this jurisdictional assertion has been extensively discussed in the international literature of the day80 and gave rise to strong criticism.81 The friction between the United States and other national authorities became particularly tense. The United States was accused of attempting to regulate a variety of trade-related activities stretching beyond US borders through the unilateral use of the effects doctrine.82 Notorious litigations involve the application of the effects doctrine over alleged international cartels in the chemicals industry,83 the Swiss watch industry,84 the uranium supply market,85 or the supply of materials from European 80

81

82

83 84

85

D. Lange and G. Born (eds.), International Chamber of Commerce, The Extraterritorial Application of National Laws (Paris: ICC Publishing, 1987), 36–37; indicatively, H. Zwarensteyn, Some Aspects of the Extraterritorial Reach of the American Antitrust Laws (Deventer: Kluwer, 1970); K.M. Messen, Extraterritorial Jurisdiction in Theory and Practice (The Hague: Kluwer Law International, 1996); further, R. Jennings, ‘Extraterritorial Jurisdiction in the United States Antitrust Laws’, British Yearbook of International Law, 33 (1957), 146; G. van Hecke, ‘Le Droit Antitrust: aspects comparatifs et internationaux’, Recueil des Cours de l’Acad´emie de Droit Internationale, 106 (1962-II) 253; J.G. Castel, ‘The Effects of Antitrust Laws’, Recueil des Cours de l’Acad´emie de Droit Internationale, ´ 179 (1983), 9; E. Friedel-Souchu, Extraterritorialit´e de Droit de la Concurrence aux EtatsUnis et dans la Communaut´e Europ´eenne (Paris: LGDJ, 1994); E. Nerep, Extraterritorial Control of Competition in International Law with Special Regard to US Antitrust Laws (Stockholm: Norstedt, 1983); F.A. Mann, ‘The Extremism of American Extraterritorial Jurisdiction’, International and Comparative Law Quarterly, 39 (1990), 410, to name but a few of the numerous works on the topic. The issue has recently been analysed by Ryngaert, Jurisdiction over Antitrust Violations, above n. 72, 179–194. Jennings, ‘Extraterritorial Jurisdiction’, above n. 80, 175, ‘these cases still offend against the ultimate limit because they are an attempt to export into other countries and to make operate there what are after all peculiarly American political notions’; Mann, ‘The Doctrine of Jurisdiction’, above n. 46, 104–105; Hirst, Jurisdiction, above n. 11, 47. V. Lowe, Extraterritorial Jurisdiction: An Annotated Collection of Legal Materials (Cambridge: Grotius, 1983); W.F. Fugate, Foreign Commerce and the Antitrust Laws (Boston: Little, Brown, 1991), 68, 126–133. Further, J.P. Griffin, ‘Foreign Governmental Reactions to US Assertions of Extraterritorial Jurisdiction’, European Competition Law Review, 19 (1998), 64, 64–73; Y. Ohara, ‘New US Policy on the Extraterritorial Application of Antitrust Law and Foreign Responses’, in Messen, Extraterritorial Jurisdiction in Theory and Practice, above n. 80, 166–172. UK Government, Aide-Memoire to the Commission of the European Communities, 20 October 1969, reproduced in I. Brownlie, Principles of Public International Law (7th edn, Oxford University Press, 2008), 313–315. US v. Imperial Chemical Industries, 105 F.Suppl. 215 (1952). US v. The Watchmakers of Switzerland Information Center, 133 F.Suppl. 40 (SDNY 1955), reargument, 134 F.Suppl. 710 (SDNY 1955), dismissed [1963] Trade Cases (CCH) s. 70, 600 (SDNY 1962). Westinghouse Electric Corp. Uranium Contracts Litigation, Subpoena Duces Tecum, 563 F.2d. 992 (10th Cir., 1977); Westinghouse Electric Corp. v. Rio Algom Ltd, 617 F.2d 1248 (7th Cir., 1980). Lowe, Extraterritorial Jurisdiction, above n. 82, 156, with references to the foreign governments’ amicus briefs.

2.4 territorial fictions

27

companies to the USSR for the construction of the Siberian pipeline.86 This caused strong reactions on behalf of the affected States. They enacted blocking statutes, i.e. legislation aimed to prevent the US authorities from compelling foreign companies to produce evidence in the context of an antitrust litigation before them,87 as well as legislation aimed at recovering damages paid in satisfaction of US antitrust judgments.88 In the light of extensive international reactions, the US Courts attempted to accommodate foreign concerns by producing legal standards based on the notion of ‘comity’.89 The US legislature, on the other hand, tried to address the situation through the adoption of the 1982 Foreign Trade Antitrust Improvements Act90 and the conclusion of a number of international agreements.91 86

87

88

89

90 91

European Commission, Comments on the US Regulations Concerning Trade with the USSR, 21 ILM 891, 897 (1982), ‘It cannot conceivably be argued that exports from the European Community to the USSR for the Siberian Gas Pipeline have within the US direct, foreseeable and substantial effects, which are not merely undesirable, but which constitute an element of a crime or tort prescribed by US Law’. Indicatively, Business Records Protection Act 1947, Canada, in ‘Comment, Judicial Cooperation and the Taking of Evidence Abroad: the Canada and Ontario Evidence Acts’, Texas International Law Journal, 8 (1978), 57 and In re Grand Jury Subpoena Duces Tecum Addressed to Canadian Int’l Paper Co. 72 F Supp 1013 (SDNY 1947). In the UK, the 1964 Shipping Contracts and Commercial Documents Act and the 1980 Protection of Trading Interests Act, analysed in F.A. Mann, ‘Anglo-American Conflict of Jurisdiction’, International and Comparative Law Quarterly, 13 (1964), 1460, 1460–1465 and V. Lowe, ‘Blocking Extra-territorial Jurisdiction: The British Protection of Trading Interests Act 1980’, American Journal of International Law, 75 (1981), 257, 257–282. Further, A.F. Lowenfeld, ‘Sovereignty, Jurisdiction and Reasonableness: A Reply to A.V. Lowe’, American Journal of International Law, 75 (1981), 629–638. Foreign Extraterritorial Measures Act, F-29, 24 ILM 794 (1985) (Can.); Foreign Proceedings (Excess of Jurisdiction) Act, 23 ILM 1038 (1984) (Austl.); at that time, there were ‘five diplomatic protests of US antitrust cases for every instance of express diplomatic support, and three blocking statutes for every co-operation agreement’; J. Davidow, ‘Extraterritorial Antitrust and the Concept of Comity’, Journal of World Trade Law, 15 (1981), 500, 502. Timberlane Lumber Co. v. Bank of America, 549 F.2d 597 (9th Cir., 1976), 611–613; Mannington Mills v. Congoleum Corporation, 595 F.2d 1287, 1297–8 (3rd Cir., 1979), which refined even more this solution. The value of comity, beyond the ‘foreign compulsion’ defence, is unclear today; Hartford Fire Ins. Co. v. California, 509 US 764, 798–9 (1993), F. Hoffman-LaRoche Ltd. et al. v. Empargan SA et al., 124 SC 2359, 2366 (2004). Foreign Trade Antitrust Improvements Act 15 USC s. 6a (2006). See indicatively Agreement between the Government of the US and the Government of the Federal Republic of Germany Relating to Mutual Cooperation Regarding Restrictive Business Practices, 23 June 1976, 27 UST 1956; Agreement between the Government of the US and the Commission of the European Communities Regarding the Application of their Competition Laws, 23 September 1991, 30 ILM 1487 (1991); Agreement between the Government of the US and the Government of Canada Regarding

28

definitions and state territorial jurisdiction

Through the 1982 Act, the US legislative authorities excluded foreign commerce from the reach of US Courts, with the exception of such activities that gave rise to ‘direct, substantial and reasonably foreseeable’ effects within the US that harmed competition.92 In defining an ‘effect’, the US Courts have accepted that they may exercise jurisdiction if the conduct caused the ‘effect’ of ‘injuries to United States commerce which reflect the anticompetitive effect either of the violation or of the anticompetitive acts made possible by the violation’.93 This definition was developed in subsequent case-law. It includes also the ‘negotiation of explicit domestic price fixing agreements’, that were made possible by the agreement to fix prices in foreign markets.94 Such effects may be ‘direct, substantial and reasonably foreseeable’ according to the FTAIA, or ‘intended and substantial’ according to the ALCOA test, that was followed by the US Supreme Court in its 1993 Hartford Fire ruling.95 Today, the situation may be summarized as follows: while the precise limits that the US Courts accept in the exercise of the effects doctrine still seem unclear,96 much of the controversy surrounding the effects doctrine as a matter of principle seems to have evaporated. This appears to be mainly due to the fact that substantive antitrust law and policies underlying the application of the doctrine have been increasingly harmonized in State practice.97

92 93 94 95 96

the Application of their Competition and Deceptive Marketing Practices Laws, available at: www.competitionbureau.gc.ca/epic/site/cb-bc.nsf/en/01592e.html (last accessed 5 February 2013); International Antitrust Enforcement Assistance Act, Publ. L. 103– 438, 108 US 4597 (1994), which facilitated the Agreement between the Government of the US and the Government of Australia on Mutual Antitrust Enforcement Assistance, 27 April 1999, available at: www.usdoj.gov/atr/public/international/docs/usaus7.htm (last accessed 5 February 2013); see further North American Free Trade Agreement (NAFTA) (US, Can., Mex.) chapter 15, 32 ILM 605, 663 (1993); L. Fullerton and C.C. Mazard, ‘International Antitrust Co-operation Agreements’, World Competition, 24 (2001), 405, 406–423; C. Canenbley and M. Rosenthal, ‘Co-operation between Antitrust Authorities in – and Outside the EU: What Does it Mean for Multinational Corporations? Part 2’, European and Comparative Law Review, 26 (2005), 178, 178–187; American Bar Association, Section of Antitrust Law, Competition Laws Outside the United States (2001), vol. I, 113 et seq. Foreign Trade Antitrust Improvements Act 15 USC s. 6a (2006). National Bank of Canada v. Interbank Card Association, 666 F.2d 6, 8 (2nd Cir., 1981). Kruman et al. v. Christie’s International et al., 284 F.3d 384, 390 (2nd Cir., 2002). Hartford Fire Ins. Co. v. California, 509 US 764, 796 (1993). The issue of the qualifiers is analysed in detail, below Section 6.3.6. 97 See in detail Section 6.3.6. In detail, Section 6.3.1.

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It is indicative that the European Union, one of the staunchest opponents of the doctrine, appears to have adopted it. The European Court of Justice (ECJ) were at pains to avoid endorsing the effects doctrine in its formative antitrust jurisprudence.98 However, it eventually accepted in the Gencor Case that ‘[a]pplication of the [Merger] Regulation is justified under public international law when it is foreseeable that a proposed concentration will have an immediate and substantial effect in the Community’.99 The Court then proceeded to explain what these qualifications mean, and how they are met in the case.100 The EU Commission has for some time now assured that EU law recognizes the effects doctrine.101 Judges Higgins, Kooijmans and Buergenthal have also affirmed that ‘“[e]ffects” or “impact” jurisdiction is embraced both by the United States and, with certain qualifications, by the European Union’.102 The United States and the European Union are not alone, however. Today, on the basis of extensive State practice, authorities increasingly 98

99

100 101

102

For a ‘single economic unity’ approach, attributing the action of a subsidiary within the common market to its parent company outside the EU in Case 48/69, Imperial Chemical Industries Ltd v. Commission (‘Dyestuffs’) [1972] ECR, paras. 131–2; Cases C-89, 104, 114, 116, 117, 125–129/85. For the implementation theory, Wood Pulp Cases, A. Alstrom Osakeyhtio et al. v. Commission (Joined Cases) [1988] ECR, paras. 12–13 (territorial implementation within the EU as the appropriate connecting link for the exercise of jurisdiction). Ryngaert, Jurisdiction over Antitrust Violations, above n. 72, 25–44. Case T-102/96, Gencor Ltd. v. Commission of the European Communities, [1999] ECR II753, paras. 90, 104. M.P. Broberg, ‘The European Commission’s Extraterritorial Powers in Merger Control: The Court of First Instance’s Judgment in Gencor v. Commission’, International and Comparative Law Quarterly, 49 (2000), 172, 176. For support for the proposition that the effects jurisdiction applies to all aspects of competition cases under EU law, C. D. Wallace, ‘Extraterritorial Discovery: Ongoing Challenges for Antitrust Litigation in an Environment of Global Investment’, Journal of International and Economic Law, 5 (2003), 353; I. van Bael et al., Competition Law of the European Community (5th edn, Alphen aan den Rijn: Kluwer, 2010), 136–137, for EU Competition Law development in this context. E. M. Fox, ‘The Merger Regulation and its Territorial Reach: Gencor Ltd. v. Commission’, European Competition Law Review (1999), 334, 335, ‘the CFI’s expressed understanding corresponds precisely with the United States’ understanding of appropriate jurisdiction (and with the US understanding of the effects test)’; Y. van Gerven and L. Hoet, ‘Gencor: Some Notes on Transnational Competition Law Issues’, Legal Issues of European Integration, 28 (2001), 195, 201–206. Gencor, above n. 99, paras. 98–104. In detail, below Section 6.3.6. R. Whish and D. Bailey, Competition Law (7th edn, Oxford University Press, 2012), 496. Ryngaert, Jurisdiction over Antitrust Violations, above n. 72, 42–4, for current Commission practice in favour of the effects doctrine; on mergers, A. R. Fiebig, ‘International Law Limits on the Extraterritorial Application of the European Merger Control Regulation and Suggestions of Reform’, European Competition Law Review (1998), 323, 325–327. Arrest Warrant of 11 April 2000 (Dem. Rep. Congo v. Belg.) (Judgment) [2002] ICJ Rep. 3, at 77, para. 47.

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accept that the effects doctrine is an established approach to territorial jurisdiction under international law.103 The remaining friction, if any, centres largely on two points. The first is the interpretation of the qualifications of effects.104 The second concerns the most appropriate standards and mechanisms for the settlement of jurisdictional conflicts arising from the implementation of the effects doctrine, such as the creation of independent international bodies105 or ‘interest-balancing’ of national interests by domestic Courts.106 As such, it seems appropriate to conclude that under contemporary international law, the debate on effects jurisdiction is focused more on the use of the criteria for its exercise, rather than its existence.107 103

104 105

106

107

Ryngaert, Jurisdiction over Antitrust Violations, above n. 72, 45–56, J. Adolphsen, ‘The Conflict of Laws in Cartel Matters in a Globalised World: Alternatives to the Effects Doctrine’, Journal of Private International Law, 1 (2005), 151, 158–159, ‘Internationally, the effects doctrine has set out to win over the world: not only European countries such as Switzerland (Art. 2(2) Cartel Law), Austria (para. 6(1) Cartel Law), Spain, Greece, Norway, Sweden, Italy and France should be mentioned but so should Australia and countries in Latin America’; G.B. Born, ‘A Reappraisal of the Extraterritorial Reach of US Law’, Law and Policy in International Business, 24 (1992), 1, 67–68; E. Elhauge et al., Global Competition Law and Economics (Oxford: Hart, 2007), 1057. For Korean practice, W.K. Kim, ‘The Extra-territorial Application of US Antritrust Law and its Adoption in Korea’, Singapore Journal of International and Comparative Law, 7 (2003), 386–411. For South African practice, American Soda Ash Corp. & CHC Global (Pty) Ltd v. Competition Commission of South Africa et al., Case 12/CAC/DEC01, Appeal to Competition Appeal Court (25 October 2002), reported in Oxford Reports on International Law in Domestic Courts, International Law in Domestic Courts (ZA 2002) 493. For early acceptance with some reservations, International Law Association, ‘Resolution on Extra-territorial Application of Anti-trust Legislation’, International Law Association Rep. 55th Conference, New York (1972) XIX, Art. 5. See below, Section 6.3.6. in detail. K.M. Meessen, ‘Antritrust Jurisdiction under Customary International Law’, American Journal of International Law, 78 (1984), 783, 809–810 (advocating the creation of an ‘International Centre for the Settlement of Antitrust Disputes’ (ICSAD). Laker Airways Ltd v. Sabena, 731 F.2d 909, 937–938, 950 (DC Cir., 1984). The best view is that such interest balancing is not a legal exercise for consideration by national courts. Westinghouse Electric Corp. v. Rio Algom Ltd, 480 F.Suppl. 1138, 1148 (1979), per Judge Marshall, United States Department of Justice and Federal Trade Commission, Antitrust Enforcement Guidelines, April 1995, reprint. in 34 ILM 1081, 1103–1104 (1995); H.G. Maier, ‘Extraterritorial Jurisdiction at a Crossroads: An Intersection between Public and Private International Law’, American Journal of International Law, 76 (1982), 280, ‘Diplomatic Note of the UK Government to the US Government’, expressing the UK’s ‘“serious reservations” on the propriety of having a national court balance the interests of two or more sovereign states’, British Yearbook of International Law, 53 (1982), 430, 431; F.A. Mann, ‘The Doctrine of Jurisdiction Revisited After 20 Years’, in F.A. Mann (ed.), Further Studies in International Law (Oxford: Clarendon, 1990), 15, 74; Bowett, ‘Jurisdiction’, above n. 8, 22, 24. Ryngaert, Jurisdiction over Antitrust Violations, above n. 72, 195.

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Consequently, it is today asserted with authority that the use of the effects doctrine in national anti-trust law constitutes ‘normal worldwide practice’.108 Even beyond the field of competition law, however, recent literature and case-law contain interesting attempts to extend its implementation, so as to address human rights violations,109 international terrorism,110 breaches of the law of the sea,111 or ordinary criminal law violations.112 Judges have also called for the adoption of legislation in that direction as a step towards modernizing national law.113 It is in the light of this growing acceptance of effects jurisdiction that the topic of the interpretation of the territorial jurisdiction of the ICC will be addressed in the following chapters.

2.5 Jurisdictional rule of reason in international law and the International Criminal Court114 The Lotus Case allowed concurrent territorial jurisdiction over criminal activity,115 but did not offer authoritative guidance on the regulation of priority of claims in cases of concurrent jurisdiction. The use of the effects doctrine after the Second World War brought this situation starkly into the spotlight and led international scholars to a search for the limits of State jurisdiction under international law. The final result of these efforts became known as the jurisdictional ‘rule of reason’. In particular, international law doctrine has explained that State jurisdictional assertions over activities involving transboundary elements need to be ‘reasonable’ in order to comply with international law. This is the ‘rule of reason’ for state jurisdiction developed by Francis Mann,116 the 108 109 110

111 112 113 114

115 116

Case C-366, Air Transport Association of America and Others, Opinion of AdvocateGeneral Kokott, 6 October 2011, para. 148. Y. Shany, ‘The Law Applicable to Non-Occupied Gaza: A Comment on Bassiouni v. Prime Minister of Israel’, Israel Law Review, 42 (2009), 101, 111–2. R. Kolb, ‘The Exercise of Criminal Jurisdiction over International Terrorists’, in A. Bianchi (ed.), Enforcing International Law Norms Against Terrorism (Oxford: Hart, 2004), 244– 245. B. H. Oxman, ‘Jurisdiction of States’, in R. Bernhardt (ed.), Encyclopedia of Public International Law (Amsterdam: Elsevier, 1997), vol. III, 58. For application of the effects doctrine in a case of theft, S. v. Mharapara, 1985 (2) ZLR 211 (SC) 84 ILR 1, 17 Supreme Court of Zimbabwe, Judgment of 17 October 1985. Public Prosecutor v. Taw Cheng Kong, 2 SLR 410, Singapore Court of Appeal (1998). This part draws from my earlier study on ‘The Territorial Jurisdiction of the International Criminal Court: A Jurisdictional Rule of Reason for the ICC?’, Netherlands International Law Review, 59 (2012), 43–64. Lotus Case, above Section 2.2. Mann, ‘The Doctrine of Jurisdiction’, above n. 46, 43.

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authors of the Third Restatement117 and national courts. As a concept, ‘reasonableness’ encapsulates aspects of the principle of non-intervention and the doctrine of abuse of rights.118 In substance, it establishes a test of a ‘sufficiently close connection’ between a State and an activity.119 The final result of the test is to establish ‘a reasonable relation’ between the State and the activity, denoting ‘the absence of abuse of rights or arbitrariness’.120 This relation is to be established by reference to objective criteria provided by international law.121 Such criteria were articulated by the Third Restatement, and included among others the link of the activity to the territory of the regulating State; other connections, such as nationality, residence, or economic activity, between the regulating State and the person principally responsible for the activity to be regulated; the character of the activity; the other State’s interests in regulating the activity or the likelihood of conflict.122 In theory, Mann and the Third Restatement differed in that the first called for ‘reasonableness’ assessments on the basis of state ‘connections’, whereas the second on the basis of State ‘interests’.123 In practice, however, these differences were more nominal than anything else, since at the end of the day both approaches advocated consideration of similar or identical criteria (e.g. territorial links, residence, etc.).124 The efforts to produce a jurisdictional ‘rule of reason’ did not go unnoticed. Most authorities cite Mann’s doctrine with approval,125 whereas others either do not appear entirely convinced of its position in positive law,126 or express scepticism over the risk of jurisdictional conflicts due 117

118 120 123

124 125

126

Restatement (Third) of the Foreign Relations Law of the United States (1987), ss. 402– 403; A.F. Lowenfeld, ‘International Litigation and the Quest for Reasonableness’, Recueil des Cours de l’ Acad´emie de Droit Internationale, 245 (1994-I), 9, 46–48. 119 Mann, ‘The Doctrine of Jurisdiction’, above n. 46, 47. Ibid., 46. 121 122 Ibid., 46–47. Ibid., 46. Restatement (Third), above n. 117, s. 403(2). Ryngaert, Jurisdiction in International Law, above n. 5, 171–172. See further, Restatement (Third), above n. 117, s. 403(2) and Mann, ‘The Doctrine of Jurisdiction’, above n. 46, 46–47. Ryngaert, Jurisdiction in International Law, above n. 5, 196. A. Aust, Handbook of International Law (2nd edn, Cambridge University Press, 2010), 42; V. Lowe and C. Staker, ‘Jurisdiction’, in M.D. Evans (ed.), International Law (3rd edn, Oxford University Press, 2010), 330; L.F.L. Oppenheim et al., Oppenheim’s International Law, R. Jennings and A. Watts (eds.) (9th edn, London: Longman, 1992), vol. I, 457–458; R. Higgins seems to follow the same pattern of analysis as regards universal jurisdiction, in R. Higgins, Problems and Process: International Law and How We Use It (Oxford: Clarendon Press and New York: Oxford University Press, 1994), 58. Also, Bowett, ‘Jurisdiction’, above n. 8, 3–4; J. Dugard, International Law: A South African Perspective (3rd edn, Lansdowne: Juta, 2005), 150; Crawford, Brownlie’s Principles, above n. 21, 478–480. J. Combacau and S. Sur, Droit International Public, Domat Droit Public (Paris: Montchrestien, 1993), 346–347.

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to its application.127 Evidently, the ‘rule of reason’ analysis is not perfect. The authors of the Third Restatement themselves candidly admitted that more than one State may exercise jurisdiction ‘reasonably’.128 Moreover, the notion of ‘reasonableness’ may be too flexible, its content too uncertain; it is liable to lead to arbitrariness and abuse.129 In an effort to find clear yet flexible solutions, one may end up causing confusion and friction. This criticism is not without merit. A jurisdictional ‘rule of reason’ did not offer the perfect solution in the field of international trade regulation; it cannot claim to constitute a perfect solution for the ICC either. Moreover, taking into account the different legal traditions represented by the judges sitting in the Court, it is highly likely that all Chambers will not share the same opinion on the ‘reasonable’ extent of the Court’s territorial jurisdiction.130 That said, however, it is submitted that this is a solution that the Court may adopt as a matter of principle. Considering the nature of the Court as a permanent independent international institution, the crimes involved and the rejection of universal jurisdiction in Rome, it seems all the more necessary that the Court should espouse a solution that has already been adopted and tested in national systems. In particular, State practice seems to indicate a growing acceptance of Mann’s doctrine. While governments seem to still balance between the older post-Westphalian doctrine of strict territoriality and the new theory of jurisdiction,131 national judges have demonstrated greater readiness to receive and apply it. 127 128 129

130

131

E. M. Morgan, ‘Criminal Process, International Law, and Extraterritorial Crime’, University of Toronto Law Journal, 38 (1988), 245, 274. Ibid., 246. J. Velu and R. Ergec, La Convention Europ´eenne des Droits de l’Homme (Brussels: Bruylant, 1990), 441, n. 519: ‘s’il est un concept a` contenu variable, r´efractaire a` toute approche dogmatique, c’est bien celui de “raisonnable’”. Further, N. MacCormick, ‘On Reasonableness’, in C. Perelman and R. Vander Elst, Les Notions a´ Contenu Variable en Droit: ´ Etudes: Travaux du Centre National de Recherches de Logique (Brussels: Bruylant, 1984), 131–156; J. Salmon, ‘Le Concept de Raisonnable en Droit International Public’, in D. Bardonnet et al., M´elanges Offerts a` Paul Reuter: Le Droit International. Unit´e et Diversit´e (Paris: Pedone, 1981), 448–478. C.L. Blakesley, ‘Extraterritorial Jurisdiction’, in M.C. Bassiouni, International Criminal Law (3rd edn, Leiden: Martinus Nijhoff, 2008), vol. II, 94–95 (referring to the difficulties in understanding reasonableness between Anglo-Saxon and other lawyers). Indicatively, for the French position, Case Concerning Certain Criminal Proceedings in France (Democratic Republic of the Congo v. France) (Pleadings) [2003] ICJ Rep. 4, paras. 10–11. For the position of the UK Government, T. Kirkhope, Under-Secretary of State for the Home Department, Debates on the Jurisdiction (Conspiracy and Incitement) Bill, House of Commons, reported in British Yearbook of International Law, 68 (1997), 576–577. For the latter see also the Judgment of the Judicial Committee of the Privy Council in the case of Somchai Liangsiripraesert v. US (1990) 29 ILM 1390, 1396.

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The Supreme Court of Canada paved the way. In a case of an international telephone fraud inducing individuals in the United States to buy worthless shares of mining undertakings in South America, the Supreme Court affirmed its territorial jurisdiction on the basis of the existence of a ‘real and substantial link’ with Canada.132 The decision was explicitly adopted by the New Zealand Court of Appeals in Reid, where the Court referred to the existence of a ‘real and substantial link’ between the offence (attempting to obstruct justice in Hong Kong) and New Zealand.133 In Europe, the German Constitutional Court in Jorgi´c referred also to the required establishment of a ‘reasonable nexus’ between Germany and the crime for the purposes of asserting jurisdiction in conformity with international law and the principle of non-intervention.134 The Supreme Court of Israel in Rosenstein relied on the ‘majority of links’ between the crime, the United States and Israel in a decision involving the extradition of an Israeli citizen to the United States on charges of conspiracy to traffic drugs.135 The ECJ also requires a ‘sufficiently close link’ between a certain situation and EU law, in order to accept the latter’s application, when territory beyond the borders of the European Union is involved. This is the case in competition law,136 as well as in employment matters.137 It is here submitted, on the basis of this authority, that the requirement of ‘reasonableness’ – in the sense of close connection of crime to State territory – has emerged as a principle of international law concerning

132

133 134 135

136 137

Libman v. The Queen, [1985] 2 SCR 178, 200. This test was also applied later in United States v. L´epine [1994] 1 SCR 286, para. 15 (per LaForest J.), (real and substantial connection with the United States for extradition on charges of drug trafficking established on the facts that the refurbishing of the aircraft that would carry the cocaine occurred in Florida and that said aircraft landed in US territory even before the landing that led to the arrest). Solicitor-General v. Reid [1997] 3 NZLR 617, 631–632 (1997). In Re Jorgi´c, Federal Republic of Germany, Federal Constitutional Court (BVerfG), 12 December 2000, 135 ILR at 152. Although in Rosenstein the Supreme Court of Israel stated that this is only one of the pertinent considerations to take into account, rather than a hard-and-fast ‘rule of decision’. Cr. A. 4596/05, The State of Israel v. Ze’ev Rosenstein, Appeal Judgment (30 November 2005), reported in Oxford Reports on International Law in Domestic Courts, International Law of Domestic Courts (IL 2005) 159, para. 46 (Extradition). Case T-204/03, Haladjian Fr`eres SA v. Commission [2006] ECR-II-3779, para. 167. Case C-106/11, M. J. Bakker v. Minister van Financi¨en [2012] ECR NYP, para. 28, available at: http://curia.europa.eu/juris/document/document.jsf?text=%26;docid=123603%26; pageIndex=0%26;doclang=EN%26;mode=lst%26;dir=%26;occ=first%26;part=1%26; cid=1372072 (last accessed 27 February 2013).

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criminal jurisdiction.138 This appears to be in line with the development of international relations from libertarianism to cooperation.139 Accordingly, in the system of the ICC this ‘rule of reason’ may be considered as the ultimate yardstick for assessing the lawfulness of the exercise of territorial jurisdiction in Article 12(2)(a) under international law. The application of this principle could take place through an interpretation of Article 12(2)(a) on the basis of ‘other relevant rules of international law applicable in the relations between the parties’.140 In the same spirit, Mann’s doctrine could be further considered as an expression of the principle of non-intervention under customary international law.141 The Court would be said not to intervene in the internal affairs of other States, if the crime under investigation and prosecution was ‘sufficiently connected’ to the territory of a State Party. As far as the legal basis for this argument is concerned, the Preamble is probably not very helpful here. Its wording seems to refer to non-intervention only on the part of States Parties to the Statute.142 A better doctrinal foundation would be the duty of the Court as a subject of international law to act in accordance with rules and principles of general international law.143 138

139 140

141

142

143

Restatement (Third) of the Foreign Relations Law of the United States (1987), 254, s. 403. The reasonableness analysis, in the opinion of those authors, ‘has emerged as a principle of international law as well’. For the same approach in the field of private international law, G.B. Born, ‘Reflections on Judicial Jurisdiction in International Cases’, Georgia Journal of International and Comparative Law, 17 (1987), 19. Further, Ryngaert, Jurisdiction in International Law, above n. 5, 181–182. E. M. Morgan, ‘Criminal Process, International Law, and Extraterritorial Crime’ University of Toronto Law Journal, 38 (1988), 245, 250. Article 31(3)(c) of the Vienna Convention on the Law of Treaties, Vienna, 23 May 1969, entered into force 27 January 1980, 1155 UNTS 331, (1969) 8 ILM 679. From ICJ jurisprudence on the topic, Oil Platforms (Islamic Republic of Iran v. United States of America) (Judgment) [2003] ICJ Rep. 161, 182, para. 41. The locus classicus by now for interpretation of the Rome Statute in ICC jurisprudence is the Situation in the Democratic Republic of the Congo (Judgment on the Prosecutor’s Application for Extraordinary Review of Pre-Trial Chamber I’s 31 March 2006 Decision Denying Leave to Appeal) ICC-01/04–168 (13 July 2006), para. 33 (hereinafter, Lubanga Extraordinary Review Appeal). For the status of non-intervention under customary law, Case Concerning Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States of America) (Judgment) [1986] ICJ Rep. 14, 106, para. 202. Para. 8 of the Preamble of the Rome Statute provides that ‘Emphasizing that nothing in this Statute shall be taken as authorizing any State Party to intervene in an armed conflict or in the internal affairs of any State’. For the value of the Preamble in the context of interpretation, see Art. 31(2) of the Vienna Convention and the Lubanga Extraordinary Review Appeal, above n. 140. For non-intervention and jurisdiction, see M. Jamnejad and M. Wood, ‘The Principle of Non-Intervention’, Leiden Journal of International Law, 22(2) (2009), 345, 347; Wolswijk,

36

definitions and state territorial jurisdiction

The reasoning would be similar to that of the German Courts in the Jorgi´c Case.144 They held that non-intervention in cases of universal jurisdiction requires some reasonable nexus between the crime and German laws.145 Translated into the Court’s language, the test would be that a reasonable link (‘sufficient connection’) between crimes and State Party territory is required for the Court to act in conformity with the principle of non-intervention under international law. Arguably, this position would have an additional advantage. It would shield States against allegations that, by becoming party to the Rome Statute, they attempt to avoid their obligation under international law to exercise territorial jurisdiction ‘reasonably’, i.e. in conformity with the principle of non-intervention and the condition of a ‘sufficient connection’ with territory. Ultimately, the Court may also find that on this point there is a lacuna in the Statute that was not intended by the drafters.146 It may then turn to customary law under Article 21(1)(b) to substantiate its recourse to the ‘sufficient link’ test,147 in the same spirit as the Lubanga Confirmation Decision did with the definition of international armed conflict in Article 8(2)(b).148 In this effort, the Mbarushimana Case would not be helpful authority, as the Court failed to consider international law aspects of the sufficient link test.149 The usefulness of this ‘rule of reason’ will therefore play an important role in the present analysis as the ultimate frontier of the Court’s territorial jurisdiction. Its application permeates the entire analysis and will be discussed further in Chapter 6 dedicated to the effects doctrine.150

144 145 146 148

149

‘Locus Delicti’, above n. 24, 381; Ryngaert, Jurisdiction in International Law, above n. 5, 144–146. For the binding effect of general rules of international law on international organizations, Advisory Opinion on the Interpretation of Agreement of 25 March 1951 between WHO and Egypt [1980] ICJ Rep. 89–90, para. 37. In Re Jorgi´c, Federal Republic of Germany, Federal Constitutional Court (BVerfG), 12 December 2000, 135 ILR at 152. Ibid., at 165. Further, Evgeny Adamov v. Federal Office of Justice (Judgment) Federal Tribunal (Switz.), ATF 132 II 81, ILDC 339 (CH 2005), 22 December 2005, para. 3.4.3. 147 See above, Section 4.1. See above, Section 3.1. Prosecutor v. Lubanga Dyilo (Decision on the Confirmation of Charges) ICC-01/04– 01/06–803-tEN (29 January 2007), para. 205; ibid., paras. 206–225. The Chamber then had recourse to Common Article 2 of the Geneva Conventions, ICTY and ICJ jurisprudence. 150 See below Section 6.3.7. Ibid.

3 The preparatory works of Article 12(2)(a)

3.1 Purpose of the chapter; sources; caveats; structure The research into and analysis of the negotiating process that led ultimately to the adoption of the Rome Statute is a necessary step for the examination of Article 12(2)(a). Preparatory works are considered as a supplementary means for the interpretation of international agreements,1 including agreements establishing international organizations.2 Both the ICJ3 and the ICC4 have affirmed the existence of the rules of customary law reflected in Articles 31 and 32 of the VCLT on treaty interpretation. For present purposes, the following types of documents will be considered as preparatory works: ‘written material, such as successive drafts of the treaty, conference records, explanatory statements by an expert consultant at a codification conference, uncontested interpretative statements by the chairman of a drafting committee and the ILC Commentaries . . . ’5 1 2 3 4

5

Art. 32 of the VCLT, Vienna, 23 May 1969, entered into force 27 January 1980, 1155 UNTS 331 (1969) 8 ILM 679 (hereinafter, Vienna Convention). Ibid., Art. 5. Further, J.E. Alvarez, International Organizations as Law-Makers (Oxford University Press, 2005), 83. Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France) (Judgment) [2008] ICJ Rep. 177, 232, para. 153. Recently, in Situation in the Republic of Kenya (Decision pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Kenya) ICC-01/09–19 (31 March 2010), para. 10. A. Aust, Modern Treaty Law and Practice (2nd edn, Cambridge University Press, 2007), 246; Y. Le Bouthillier, ‘Article 32’, in O. Corten and P. Klein (eds.), Les Conventions de Vienne sur le Droits des Trait´es: Commentaire Articles par Article (Brussels : Bruylant, 2006), vol. II, 1353–1357. For other definitions, G.G. Fitzmaurice, ‘The Law and Procedure of the International Court of Justice’, British Yearbook of International Law, 28 (1951), 1, 12; H. Thirlway, ‘The Law and Procedure of the International Court of Justice 1960– 1989’, British Yearbook of International Law, 62 (1991), 1, 36–37; S. Torres Bern´ardez, ‘Interpretation of Treaties by the International Court of Justice Following the Adoption of the 1969 Vienna Convention on the Law of Treaties’, in G. Hafner et al. (eds.), Liber Amicorum: Professor Ignaz Seidl-Hohenveldern (The Hague: Kluwer Law International, 1998), 743, n. 46; U. Linderfalk, On the Interpretation of Treaties: The Modern International

37

38

the preparatory works

Under general international law, the preparatory works in treaty interpretation are used to either confirm or clarify the meaning of a treaty provision.6 The Court has used the preparatory works of the Rome Statute mostly in order to confirm an interpretation of certain provisions.7 Article 12(2)(a) and its preparatory works have not been to date the object of any in-depth judicial analysis. It is necessary therefore to engage in such a process of selection and examination of the relevant materials of the preparatory works.8 In doing so, however, three caveats should be kept in mind, which also explain the generally reserved approach of authorities9 and Courts10 to the use of the preparatory works in treaty interpretation. The first relates to the ‘clarity’

6

7

8

9

10

Law As Expressed in the 1969 Vienna Convention on the Law of Treaties: Law and Philosophy Library (Dordrecht: Springer, 2007), vol. LXXXIII, 240. Art. 32 of the VCLT, above n. 1. Further, S. Schwebel, ‘May Preparatory Work be Used to Correct Rather than Confirm the “Clear” Meaning of a Treaty Provision?’, in J. Makarczyk (ed.), Theory of International Law at the Threshold of the 21st Century: Essays in Honour of of Krysztof Skubiszewski (The Hague: Kluwer Law International, 1996), 542–543; U. Linderfalk, ‘Is the Hierarchical Structure of Articles 31 and 32 of the Vienna Convention Real or Not? Interpreting the Rules of Interpretation’, Netherlands International Law Review, 54 (2007), 133, 138–140. Indicatively, Situation in the Democratic Republic of Congo (judgment on the Prosecutor’s Application for Extraordinary Review of Pre-Trial Chamber I’s 31 March 2006 Decision Denying Leave to Appeal) ICC-01/04 (13 July 2006), paras. 40–41; Prosecutor v. Germain Katanga (Judgment on the Appeal of Mr Germain Katanga Against the Decision of the Pre-Trial Chamber I Entitled ‘Decision on the Defence Request Concerning Languages’) ICC-01/04–01/07 (OA 3) (27 May 2008), para. 50–57; Prosecutor v. Thomas Lubanga Dyilo (Judgment on the Appeals of Mr Lubanga Dyilo and the Prosecutor against the Decision of Trial Chamber I of 14 July 2009 Entitled ‘Decision Giving Notice to the Parties and Participants that the Legal Characterization of the Facts may be Subject to Change in Accordance with Regulation 55(2) of the Regulations of the Court’) ICC-01/04–01/06 (OA 15 OA 16) (8 December 2009), para. 91. J. Klabbers, ‘International Legal Histories: The Declining Importance of Travaux Pr´eparatoires in Treaty Interpretation?’, Netherlands International Law Review, 50 (2003), 280–281, 287, on the selection process. A.D. MacNair, The Law of Treaties (2nd edn, Clarendon Press, 1961), 411; C.F. Amerasinghe, ‘Interpretation of Texts in Open International Organisations’, British Yearbook of International Law, 65 (1994), 173, 202; Aust, Modern Treaty Law, above n. 5, 246–247; J. Crawford, Brownlie’s Principles of Public International Law (8th edn, Oxford University Press, 2012), 383–384; M. Fitzmaurice, ‘The Practical Working of the Law of Treaties’, in M.D. Evans (ed.), International Law (Oxford University Press, 2010), 186–187; R.C.A. White and C. Ovey, The European Convention on Human Rights (5th edn, Oxford University Press, 2010), 66–67. Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain) (Judgment) [1995] ICJ Rep. 6, paras. 40–41, and Dissenting Opinion of Judge Schwebel on that point, at 27, 32, 36; Young, James and Webster v. United Kingdom (App. No. 7601/76; 7806/77) ECHR Ser. A No. 44, 13 August 1981, paras. 51–52, from the jurisprudence of the ECHR; Sigurjonsson v. Iceland (App. No. 16130/90) ECHR Ser. A.

3.1 sources; caveats; structure

39

of the legal provision under analysis, the second to the legal nature of the provision as part of the constituent instrument of an international organization, and the third to the incompleteness of the negotiating records at the critical decision-making moment for Article 12. As regards the first issue, since the preparatory works are a supplementary means of interpretation under Article 32 VCLT, the ICJ has explained that their examination should be avoided when the text is ‘sufficiently clear’.11 Can it be said, therefore, that Article 12(2)(a) is ‘sufficiently clear’ for the purposes of the use of preparatory works? Obviously, what may be ‘sufficiently clear’ in terms of law depends largely on the eye of the beholder. For the purposes of the present work, it is submitted that the ‘creative ambiguity’12 in the formulation of Article 12(2)(a) leaves certain questions of interpretation open, such as the meaning of ‘conduct in question’, ‘territory of State Party’ and the use of localization devices under territoriality. The preparatory works may conceivably shed some light to the negotiators’ approach to these issues. In any event, the preparatory works may assist in the confirmation of any conclusions reached. The other caveats relate more to the weight to be accorded to preparatory works in treaty interpretation than to their use as such. In particular, the Rome Statute is the constitution of an international organization, the ICC, set up to achieve certain goals. As such, its dynamic interpretation is deemed more appropriate with the ‘living’ character of the institution.13 Generally, intention has not been considered relevant in any

11

12

13

No. 264, 30 June 1993, paras. 34–35, including the Dissenting Opinion of Judge Thor Vilhj´almsson. Advisory Opinion on Conditions of Admission of a State to Membership in the United Nations [1948] ICJ Rep. 63; Competence of the General Assembly for the Admission of a State to the United Nations [1950] ICJ Rep 8; further, M.M. Aljaghoub, The Advisory Function of the International Court of Justice 1946–2005 (Berlin: Springer, 2006), 169–172; Fitzmaurice, ‘The Practical Working of the Law’, above n. 9, 12; Thirlway, ‘The Law and Procedure’, above n. 5, 36–37; ICTY, Prosecutor v. Duˇsko Tadi´c (Judgment) IT-94–1-A (15 July 1999), para. 303, for the approach of the ICTY to this rule; Alvarez, International Organizations, above n. 2, 83. D. Hunt, ‘The International Criminal Court: High Hopes, “Creative Ambiguity” and an Unfortunate Mistrust in International Judges’, Journal of International Criminal Justice, 2(1) (2004), 56, 67; Alvarez, International Organizations, above n. 2, 84, with regard to the language of the constitutions of international organizations generally. Advisory Opinion on Conditions of Admission of a State to Membership in the United Nations [1948] ICJ Rep. 57, 67–68 (Individual Opinion of Judge Alvarez); Competence of the General Assembly for the Admission of a State to the United Nations [1950] ICJ Rep. 4, 18 (Dissenting Opinion of Judge Alvarez); Advisory Opinion on Certain Expenses of the United Nations (Article 17 paragraph 2 of the Charter) [1962] ICJ Rep. 151, 184–185 (Separate Opinion of Judge Spender).

40

the preparatory works

important way for the interpretation of the constitutions of international organizations.14 Finally, the quality of the conclusions to be reached through the research and analysis of the preparatory works depends also on the availability and the completeness of the historical record.15 The process leading to the endorsement of a treaty provision may not be thoroughly documented, particularly due to the need to maintain the informal character of the negotiations in order to achieve agreement on difficult issues involving critical state interests.16 In these circumstances, the quality and quantity of the preparatory works may not allow for clear conclusions to be drawn.17 This is also important as regards the preparatory works on the jurisdiction of the ICC. Although recent publications are very helpful,18 the informal character of the negotiations on the controversial issue of jurisdiction appears to have affected the completeness of the historical record in decisive moments of the process.19 It is in order to overcome these difficulties and present as complete a picture as possible that reference will be made extensively here also to the publications of some of the negotiators. That said, however, the use of personal publications of individual negotiators is not formally sufficient to make up for the absence of an official record on state positions in critical negotiating moments of the last week of the Rome Conference. It is primarily this silence that makes any conclusions drawn from the preparatory works on jurisdiction tentative at best. To sum up, it is submitted that the preparatory works of the negotiations leading to the adoption of Article 12(2)(a) may provide helpful 14 15 18

19

Amerasinghe, ‘Interpretation of Texts’, above n. 9, 200. 16 17 Aust, Modern Treaty Law, above n. 5, 246. Ibid., 246. Ibid., 247. M.C. Bassiouni, The Legislative History of the International Criminal Court: Introduction, Analysis and Integrated Text, International and Comparative Criminal Law Series (Ardsley, NY: Transnational, 2005); UN Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court (Rome, 15 June–17 July 1998), Official Records, UN Doc A/CONF.183/13 (2002) (‘Vol. I: Final Documents’, ‘Vol. II: Summary Records of the Plenary Meetings and of the Meetings of the Committee of the Whole’, ‘Vol. III: Reports and Other Documents’) (hereinafter, Official Records, Vol. I, II and III, respectively). For example, no summary records of the Preparatory Committee negotiations were kept. A. Cassese, ‘The Statute of the International Criminal Court: Some Preliminary Reflections’, European Journal of International Law, 10 (1999), 144, 145; C.K. Hall, ‘The First Two Sessions of the UN Preparatory Committee on the Establishment of an International Criminal Court’, American Journal of International Law, 91 (1997), 177, 178, n. 4, and for the subsequent sessions in American Journal of International Law, 92 (1998), 124, 125, n. 6, 331–332, n. 2, 548–549, n. 5.

3.2 ilc work

41

insights in addressing complex issues arising from its interpretation. However, taking into account the nature of the Statute as a constitution of an international organization, as well as the incompleteness of the official record at the final decisive moments of the negotiation, their value should be probably moderated. As regards issues of structure, the negotiations that led to the adoption of Article 12(2)(a) will be addressed chronologically. At the beginning, the work of the International Law Commission (ILC) (1990–1994) will be reviewed, while the following parts will be focused on the work of the Ad Hoc Committee (1994–1995) and the Preparatory Committee (1996–1998). The final parts of the chapter will be dedicated to the negotiations of the Rome Conference (June–July 1998) and certain concluding observations.

3.2 The International Law Commission’s work on the Statute of an International Criminal Court; territorial jurisdiction Although the debate concerning the establishment of an ICC may be traced back to the early 1920s, the first serious efforts were made after the Second World War and the Nuremberg and Tokyo trials, until they practically reached a standstill in the mid 1950s.20 The issue was revived in 1989, when the UN General Assembly requested from the ILC, in the context of the latter’s work on the Draft Code of Crimes against the Peace and Security of Mankind, to ‘address the question of establishing an international criminal court or other international criminal trial mechanism with jurisdiction over persons alleged to have committed crimes which may be covered under such a code, including persons engaged in illicit trafficking in narcotic drugs across national frontiers, and to devote particular attention to that question in its report 20

On the history, International Law Commission, ‘Report of the International Law Commission’, Yearbook of the International Law Commission, 2 (1990), UN Doc. A/C.N.4/SER.A/ADD.1, 20–21, paras. 103–115. Further, UNGA Res. 898 (IX) (14 December 1954) 8th Session Suppl. No. 21, UN Doc. A/2890; UNGA Res. 1187 (XII) (11 December 1957) UN Doc. A/7250; UNGA ‘Report on the 1953 Committee on International Criminal Jurisdiction’, UNGAOR 9th Session Suppl. No. 12 UN Doc. A/2645 (1954), 23–26 (Annex: Revised Draft Statute for an International Criminal Court). Further, B. E. Berg, ‘The 1994 ILC Draft Statute for an International Criminal Court: A Principled Appraisal of Jurisdictional Structure’, Case Western Reserve Journal of International Law, 28 (1996), 221; Bassiouni, The Legislative History, above n. 18, 60; International Convention on the Suppression and Punishment of the Crime of Apartheid (19 January 1981) UN Doc. E/CN.4/1426 (1981), at 21, on the elaboration of a Draft Statute for an International Criminal Court in the 1978 Apartheid Convention.

42

the preparatory works

on that session.’21 From thereon, the ILC took up the discussion of the subject, which resulted in the 1994 ILC Draft Statute. The work of the Commission may be separated into two phases; the first one, from 1990 till 1992, was primarily concerned with the question of whether the creation of an ICC was desirable and feasible. The second phase, in 1993–1994, after a renewed and specific General Assembly mandate to that effect, comprised the main corpus of the Commission’s work on the elaboration of the provisions of a Draft Statute. The second phase started in November 1992, when the General Assembly gave the specific mandate to the ILC to prepare a Draft Statute.22 The Special Rapporteur of the Draft Code of Crimes in his 11th Report proposed that, in order to be realistic, the Court’s jurisdiction should be premised on the consent of both the territorial State and the State of nationality of the perpetrator.23 The Commission established a Working Group on the topic, which prepared a Draft Statute for an International Criminal Tribunal, with commentaries.24 The Working Group combined the question of State consent for the exercise of jurisdiction with the subject-matter jurisdiction of the Court. It focused on already widely accepted treaty crimes. This is clear in Part II, Articles 22–28 of the Working Group’s Report and the proposed rules appertaining to applicable law and jurisdiction. In particular, the Group identified a number of treaty crimes over which

21

22 23

24

UN General Assembly, ‘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’, UNGA Res. 44/39 (4 December 1989) UN Doc. A/RES/44/39, para. 1; Bassiouni, The Legislative History, above n. 18, 62, for further details. The General Assembly’s request was prompted by Trinidad and Tobago’s appeal for the creation of an International Criminal Court for the prosecution of persons involved in drug trafficking; UNGA Res. 43/164 (9 December 1988) UN Doc. A/RES/43/164; UNGA Res. 44/32 (4 December 1989) UN Doc. A/RES/44/32, para. 2. UNGA Res. 47/33 (25 November 1992) UN Doc. A/47/49 (1992), para. 6 International Law Commission, ‘Eleventh Report on the Draft Code of Crimes Against the Peace and Security of Mankind, by Mr Doudou Thiam, Special Rapporteur: including the Draft Statute for an International Criminal Court’, UN Doc. A/CN.4/449 and Corr. 1, Yearbook of the International Law Commission, 2(1) (1993), at 115, para. 32 (Draft Article 5, para. 2), and at 116, para. 36. International Law Commission, ‘Report of the International Law Commission’, UN Doc. A/CN.4/SER.A/1993, Yearbook of the International Law Commission, 2 (1993), for the Report of the Working Group on a Draft Statute for an International Criminal Court (hereinafter, 1993 Working Group Draft). Further, ‘Summary Records of the 2325th Meeting’, UN Doc. A/CN.4/SER.A/1993, Yearbook of the International Law Commission, 1 (1993) 179, para. 2.

3.2 ilc work

43

the Court could have jurisdiction25 and proposed different systems for the acceptance of the Court’s jurisdiction by States.26 It used the type or nature of the crime, i.e. whether a certain act constituted a crime under the Statute or another crime not codified therein, in order to distinguish between the States, whose consent would be required for the exercise of jurisdiction. This structural approach became known as the ‘two strands of jurisdiction’.27 The Commission did not discuss the matter thoroughly due to lack of time but considered this draft Statute as ‘a basis for consideration’28 and passed it on to the General Assembly for comments. In 1994, the ILC revisited the topic, determined to complete the draft. State replies to the 1993 Working Group Draft underlined that the proposed jurisdictional regime was unnecessarily complicated.29 The difficult task of the production of a final draft was then delegated to a Working Group, which produced an initial draft Statute for discussion and later on a revised draft that was ultimately adopted by the Commission and became the 1994 ILC Draft Statute. The discussions in the Commission in 1994 reveal that the issue of the jurisdiction of the ICC on the basis of territoriality was intertwined with the question of State consent for the exercise of international criminal jurisdiction. In this context, the sovereignty-oriented or internationalistoriented approach of each of the members of the Commission on the consent requirements for the exercise of jurisdiction is said to have ‘generated perhaps the most heated debate of any associated with the 25 26

27

28 29

1993 Working Group Draft, above n. 24, 106–107. 1993 Working Group Draft, above n. 24, 108, paras. 2, 4; these systems for declaration of consent became known as the ‘opt-in’ and the ‘opt-out’ approaches, depending on whether the additional state declaration would be necessary to include crimes to the Court’s initially limited jurisdiction (opt-in) or to exclude them from the Court’s initially general jurisdiction (opt-out). 1993 Working Group Draft, above n. 24, 107, para. 1. The referral of cases by the Security Council to the Court was considered not as ‘a separate strand of jurisdiction’, but rather as an expansion of the category of subjects, which could bring a case to the Court, ibid., 109, para. 1; further, J. Crawford, ‘The ILC’s Draft Statute for an International Criminal Court’, American Journal of International Law, 88 (1994), 140, 143–144. 1993 Working Group Draft, above n. 24, 20, para. 99. Observations of Governments on the Report of the Working Group on a Draft Statute for an International Criminal Court, UN Doc. A/CN.4/458/Add. 1–8, Yearbook of the International Law Commission, 2 (1994), 23–96. Particular reference may be made to the position of Algeria, at 25, para. 9; Australia, at 27, paras. 19, 22–23; Japan, at 49, para. 11; Nordic countries, at 62, para. 17–18; Panama, at 66, para. 2; Slovenia, at 68, para. 9 and the United States at 84, para. 48.

44

the preparatory works

Draft Statute.’30 The first group argued that realism dictated adherence to traditional State consent formulas. Thus, the consent of the territorial State and the custodial State should be required, in order to ensure State acceptance of the Draft Statute.31 The second group maintained that the Court should have ipso jure jurisdiction over all the core crimes in the Statute, i.e. jurisdiction solely due to the fact of the ratification of the Statute by a State, without any further preconditions attached to it. In their view, this option was necessary in order to prevent States from blocking prosecutions and interfering with the work of the Court.32 From a legal perspective, they stressed that, since international crimes existed independently of international treaties, the requisite enforcement international mechanism should also exist unhindered by jurisdictional restrictions based on consent.33 As regards the consent of the territorial State, they argued that since a State, which conferred jurisdiction on the Court, did not need the consent of other States to proceed in prosecutions, then correspondingly the Court should also not need such additional consent by other States.34 A compromise solution was ultimately adopted.35 This provided that the Court could exercise jurisdiction over a case of genocide, if a complaint

30 31

32

33

34

35

J. Crawford, ‘The ILC Adopts a Statute for an International Criminal Court’, American Journal of International Law, 89 (1995), 404, 412. Indicatively, International Law Commission, ‘Summary Records of the 2330th Meeting’, Yearbook of the International Law Commission, 1 (1994), Doc. A/CN.4/SR.2330, 7, para. 2 (per J. Crawford); International Law Commission, ‘Summary Records of the 2359th Meeting’, ibid., Doc. A/CN.4/SR.2359, 213, para. 12 (per S. Rao); International Law Commission, ‘Summary Records of the 2334th Meeting’, ibid., Doc. A/CN.4/SR.2334, 37, para. 6 (per Q. He). International Law Commission, ‘Summary Records of the 2331st Meeting’, Yearbook of the International Law Commission, 1 (1994), Doc. A/CN.4/SR.2331, 15, para. 3 (per Pellet); International Law Commission, ‘Summary Records of the 2332nd Meeting’, ibid., Doc. A/CN.4/SR.2332, 27, para. 63 (per C. Rodriguez); International Law Commission, ‘Summary Records of the 2359th Meeting’, ibid., Doc. A/CN.4/SR.2359, 211, para. 4 (per A. Pellet) and (per P. Kabatsi) in the same meeting, para. 3. International Law Commission, ‘Summary Records of the 2332nd Meeting’, Yearbook of the International Law Commission, 1 (1994), Doc. A/CN.4/SR.2332, 28, para. 70 (per V. Kramer). International Law Commission, ‘Summary Records of the 2333rd Meeting’, Yearbook of the International Law Commission, 1 (1994), Doc. A/CN.4/SR.2333, 36 para. 46 (per C. Yamada). Working Group on a Draft Statute for an International Criminal Court, ‘Report of the Working Group on a Draft Statute for an International Criminal Court’, Art. 21 of the Revised Draft Statute, UN Doc. A/CN.4/L.491/Rev.2, 16 (14 July 1994); Draft Commentary, UN Doc. A/CN.4/L.491/Rev.2/Add.1–3 (19 July 1994).

3.2 ilc work

45

was brought by a State Party to the Statute, which was also a State Party to the Genocide Convention. For any other crime, a complaint should be presented by a State Party and the jurisdiction of the Court for that crime should be accepted by the State which had custody of the suspect and additionally by the State ‘on the territory of which the act or omission in question occurred.’36 Under para. 2, if a third State duly requested the suspect’s extradition from the custodial State, the requesting State’s consent would also be required, unless the extradition was refused. This ultimately became Article 21 of the 1994 ILC Draft Statute.37 The commentary of the provision mentions that for some members the consent of the State of nationality in addition to or instead of that of the territorial State should be required as a precondition for the exercise of jurisdiction. The argument was that ‘the location of the crime could be fortuitous and might even be difficult to determine, whereas nationality represented a determinate and significant link for the purposes of allegiance and jurisdiction.’38 Others seemed to prefer also the consent of the State which was the ‘victim’ of the act in question.39 As expected, the Commission’s Draft gave rise to lengthy discussions and significantly divergent positions. The Commission noted in its Report that the Draft Statute constituted ‘an unprecedented exercise in creative legislation’, which needed a ‘strong sense of practicality’, in order to receive State support.40 Crawford wrote in defence of the draft that the strictness of the consent requirements was in fact mitigated in the end result in a number of aspects, considering for example the possibility that the custodial and territorial State will be the same, thus limiting the required number of consenting States.41 The ILC Draft Statute was critically reviewed. Warbrick noted that, as regards the application of the territoriality requirement, ‘[i]dentifying the locus of crimes, especially ones as complex as some which will come within the jurisdiction of the court, may be far from easy; likewise, the locus of omissions. Where conduct has occurred in more than one State, the statute 36 37

38 40

41

Ibid. International Law Commission, ‘Report of the International Law Commission’, UN Doc. A/CN.4/SER.A/1994, Yearbook of the International Law Commission, 2 (1994), 79, on Art. 21 of the Draft Statute for an International Criminal Court. 39 Ibid., 81, para. 6. Ibid. Ibid., 21, para. 48; further, J. Crawford, ‘The Work of the International Law Commission’, in A. Cassese et al. (eds.), The Rome Statute of the International Criminal Court: A Commentary (Oxford University Press, 2002), 27. Crawford, ‘The ILC Adopts a Statute’, above n. 30, 412–413.

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the preparatory works

does not indicate whether the acceptance by one of them will be sufficient to vest the court with jurisdiction or whether there must be acceptances by all of them.’42 He further accentuated the fact that ‘[t]he Commission as a whole has not been able to agree on the theoretical basis for the jurisdiction of the international criminal court’,43 i.e. whether it would be a separate, international jurisdiction or a form of ceded jurisdiction. Amnesty International considered that the cumulative consent requirements envisaged in Article 21 meant in fact that the proposed Court would have less power to prosecute than the territorial or the custodial State, since each of them ‘could bring the suspect to justice without the consent of any other state’.44 David considered that ‘the ILC cautiously spared state sovereignty’, by subordinating the existence and operation of the ICC to the goodwill of states or of the Security Council.45 He took issue with, among others, the limitations imposed on the ‘saisin’ of the Court, the cumulative requirement of consent and the need for a separate declaration of acceptance of the Court’s jurisdiction under the Draft Statute.46 In the same spirit, Dugard explained that, although the consent requirements were necessary for the ICJ and interstate disputes, ‘there is no sound reason why this homage to state sovereignty should extend to an international criminal court to try individuals and not states.’47 In his view, ‘there is no convincing reason – other than obeisance to state sovereignty – for a permanent international criminal court to require the consent of all interested states for the exercise of criminal jurisdiction.’48 Notwithstanding the criticism against the ILC Draft, Warbrick was probably right when he said that ‘[i]t is too much to expect that the Commission will satisfy all its critics among the States and non-governmental organisations.’49 The Commission’s Draft served its purpose; it formally started the entire debate which, after the Sixth Committee deliberations 42 43 44 45

46 47 48

C. Warbrick, ‘Current Developments: International Criminal Law’, International Comparative Law Quarterly, 44 (1995), 466, 476. Ibid., 477. Amnesty International, ‘The International Criminal Court: Making the Right Choices – Part I’ (January 1997) AI Index IOR 40/01/1997, 17–18. E. David, ‘The International Criminal Court: What is the Point?’, in K. Wellens (ed.), International Law: Theory and Practice. Essays in Honour of Eric Suy (The Hague: Martinus Nijhoff, 1998), 632. Ibid., 640–644. J. Dugard, ‘Obstacles in the Way of an International Criminal Court’, Cambridge Law Journal, 56 (1997), 329, 337. 49 Ibid. Warbrick, ‘Current Developments’, above n. 42, 478.

3.3 the ad hoc committee and the prepcom

47

in 1994, was delegated to an Ad Hoc Committee and later on a Preparatory Committee with a view to prepare an international conference for the signature of the Statute of the International Criminal Court.

3.3 The Ad Hoc Committee (1995) and the Preparatory Committee (1996–1998) The ILC Draft was discussed in the General Assembly and the Sixth Committee.50 It was ultimately decided to refer the matter to an Ad Hoc Committee, tasked to ‘review the major substantive and administrative issues arising out of the draft statute prepared by the International Law Commission and, in the light of that review, to consider arrangements for the convening of an international conference of plenipotentiaries.’51 The Assembly further invited Member States to submit comments on the ILC Draft Statute.52 The Ad Hoc Committee’s work in April and August 1995 resulted in the production of a Report, which detailed the critical issues discussed on the basis of the ILC Draft.53 As regards the issue of the State consent requirement of the territorial State, the Report reveals a variety of opinions. Although the main argument against the territorial State’s consent is not clearly articulated in the relevant part of the Report,54 there were calls for minimizing the number of States whose consent would be required for the exercise of jurisdiction.55 At the same time, nationality jurisdiction gathered support.56 50

51 52

53

54

55

UNGA Sixth Committee (49th Session) ‘Summary Record of the 17th Meeting of the Sixth Committee’, UN Doc. A/C.6/49/SR.16–28, 41 (1994); V. Morris and M. Christiane Bourloyannis-Vrailas, ‘The Work of the Sixth Committee at the Forty-Ninth Session of the UN General Assembly’, American Journal of International Law, 89 (1995), 607, 614; A. Bos, ‘From the International Law Commission to the Rome Conference (1994–1998)’, in Cassese, et al. (eds.) The Rome Statute, above n. 40, 35–65. UNGA Res. 49/53 (9 December 1994) UN Doc. A/RES/49/53, para. 2. Ibid., at para. 4; In reply, see Report of the Secretary-General, ‘Comments Received Pursuant to Paragraph 4 of General Assembly Resolution 49/53 on the Establishment of an International Criminal Court’ UN Doc. A/AC.244/1/Add.2 (20 March 1995). UNGA ‘Report of the Ad Hoc Committee on the Establishment of an International Criminal Court’, UN GAOR, 50th Sess., Suppl. No. 22, UN Doc. A/50/22 (6 September 1995) (hereinafter, the Ad Hoc Committee Report). Ibid., 23–25, paras. 103–111. This argument related to the problem of requiring the consent of the territorial state for ICC jurisdiction, when its authorities may have participated, in one way or another, to the commission of a crime. 56 Ibid., 23, para. 104. Ibid., 24, para. 105.

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In these discussions, it would seem that delegates were focused not only on the formal establishment of jurisdiction as such, but also – or perhaps mostly – on practical aspects of its exercise, considering the factual difficulties involved with a criminal investigation, when the territorial State does not have entire (or at all) control over parts of its territory. Thus, the Report contains the view that ‘in cases of international conflict it was not acceptable to give all control to the territorial State, which might be only one party to the conflict.’57 Moreover, insofar as consent implied cooperation, ‘[t]he consent of the territorial State might not be crucial in certain circumstances, e.g. peace-keeping operations or belligerent occupation’, or even in cases of belligerency between two states, where the same State was the custodial, the territorial and the State of nationality at the same time.58 Overall, the Ad Hoc Committee left many issues unresolved, including the issue of the jurisdiction of the Court. In light of this situation, and upon its recommendation, the General Assembly established a Preparatory Committee (PrepCom) to discuss the establishment of an ICC further and prepare the ground for a conference of plenipotentiaries that would adopt a Convention on the matter.59 The PrepCom convened in six sessions throughout the years 1996– 1998.60 The record on the PrepCom’s work demonstrates the need to maintain the informal character of the negotiations. Formal summary records of the discussions were not kept, while meetings were also held at times behind closed doors.61

57 59

60

61

58 Ibid., 24, para. 106. Ibid., 25, para. 111. UNGA Res. 50/46 (11 December 1995) UN Doc. A/RES/50/46, para. 2, on the Establishment of an International Criminal Court; Morris and Christiane Bourloyannis-Vrailas, ‘The Work of the Sixth Committee’, above n. 50, 496–497. This number is without taking into account inter-sessional and informal meetings. The Preparatory Committee’s mandate was originally for one year under UNGA Res. 50/46, above n. 59, para. 3; UNGA Res. 51/207 (17 December 1996) UN Doc. A/RES/51/207, paras. 3–4, renewed it subsequently, until April 1998. C.K. Hall, ‘The Third and Fourth Sessions of the UN Preparatory Committee on the Establishment of an International Criminal Court’, American Journal of International Law, 92 (1998), 124, 125; further, C.K. Hall, ‘The Fifth Session of the UN Preparatory Committee on the Establishment of the International Criminal Court’, ibid., 331, 332, n. 2; C.K. Hall, ‘The Sixth Session of the UN Preparatory Committee on the Establishment of the International Criminal Court’, ibid., 548, 549; UNGA, ‘Report of the Preparatory Committee on the Establishment of an International Criminal Court: Vol. II (Compilation of Proposals)’ UNGAOR, 51st Sess., Suppl. No. 22A, UN Doc. A/51/22, vol. II (1996), for an available collection of the proposals filed by the participating states.

3.3 the ad hoc committee and the prepcom

49

The issue of jurisdiction and the requirements of State consent were mostly considered in the first, the fourth and the sixth session of the PrepCom, as well as in the Inter-Sessional Meeting at Zutphen prior to the last meeting of the Committee. At that time, NGOs lobbied for the elimination of Article 21 and the preconditions for the exercise of jurisdiction, arguing that ‘no single state should be able to block the adjudication of these crimes’.62 State delegations, however, were not entirely convinced of this approach. The discussions in the PrepCom on this issue appear to have moved on two levels. The first concerned the appropriateness of maintaining State consent requirements. The second was the choice among the requirements themselves, namely whether it would be better to require, alternatively or cumulatively, the consent of the custodial State, of the territorial State, the State of nationality of the perpetrator, or others.63 As regards the issue of the consent of the territorial State, there was some discussion on the inclusion of territoriality. In the first session of the PrepCom, it was suggested to add the words ‘if applicable’ in Article 21(1)(b)(ii), in order to ‘cover situations where the crime might have been committed outside the territory of any State, such as on the high seas’.64 It was also argued that ‘in certain types of conflict, in order to determine the States whose consent were necessary for the proceedings of the court, one should look at the whole situation and not just the State where the crime was committed’, for example in cases where the situation involved an interstate conflict and the war crimes in question had occurred in the 62

63

64

Indicatively, see Human Rights Watch, ‘Commentary for the Preparatory Committee on the Establishment of an International Criminal Court’ (March 1996), 6, available at: www.iccnow.org/documents/1PrepCmtCommentaryHRW.pdf (last accessed 23 February 2013); International Commission of Jurists, ‘The International Criminal Court, Third ICJ Position Paper, August 1995’, 39–40, available at: www.iccnow.org/documents/ 1PrepCmt3rdPositionPaperICJ.pdf (last accessed 23 February 2013); Amnesty International, ‘Challenges Ahead for the United Nations Preparatory Committee drafting a Statute for a Permanent International Criminal Court’ (1 February 1996) AI Index IOR 40/03/96, 7, available at: www.iccnow.org/documents/AIPreCommittee1996 en.pdf (last accessed 23 February 2013); further, M. Glasius, The International Criminal Court: A Global Civil Society Achievement Routledge Advances in International Relations and Global Politics (London: Routledge, 2006), vol. XXXVIII, 63–65. Indicatively, Preparatory Committee on the Establishment of an International Criminal Court, ‘Summary of the Proceedings of the Preparatory Committee on the Establishment of an International Criminal Court During the Period 25 March–12 April 1996’ UN Doc. A/AC.249/1 (7 May 1996) 36–38, para. 134–145 (per J. Yoshida); Hall, ‘The Third and Fourth Sessions’, above n. 61, 131. Preparatory Committee, ‘Summary of the Proceedings’, above n. 63, 38, para. 143.

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territory of the aggressor State.65 In such conditions, it was argued that the requirement of the consent of the State of nationality of the victim or of the perpetrator should also be considered.66 As the negotiations moved on, the reports of the PrepCom reveal the very limited progress achieved in the sessions on the preconditions to the exercise of jurisdiction. The 1996 PrepCom Report, in what was then Article 26, did not contain significant variations in comparison to the ILC Draft but rather compiled the various proposals in a single document.67 In August 1996 France tabled a proposal, on the basis of which all ‘affected States’ (i.e. territorial, state of nationality of victim(s) and suspect(s)) would have to give their consent for the exercise of jurisdiction.68 The August 1997 PrepCom conclusions demonstrated a definite turn towards the acceptance of ‘ceded’ jurisdiction without, however, dealing with the question of the type of State consent regime.69 The topic was too sensitive to allow for any major decisions or on-the-record discussions at this juncture of the negotiations, particularly in light of a number of other major issues it was connected with.70 The Zutphen Draft, which consolidated and brought cohesion to the text, further illustrates that the issue remained largely contentious. The two options contained in that Draft left undecided the selection of the States whose consent would be required for the exercise of jurisdiction.71

65 67 68

69

70

71

66 Ibid., 38, para. 144. Ibid. M.C. Bassiouni, ‘Observations Concerning the 1997–1998 Preparatory Committee’s ´ Work’, Nouvelles Etudes P´enales, 13 (1997), 1, 10. ‘Draft Statute of the International Criminal Court: Working Paper Submitted by France’, UN Doc. A/AC.249/L.3 (6 August 1996), 35, under Art. 34 – Consent of States. This is referred to as ‘the state consent regime’; H.-P. Kaul, ‘Preconditions to the Exercise of Jurisdiction’, in Cassese et al. (eds.), The Rome Statute, above n. 40, 594; Hall, ‘The Third and Fourth Sessions’, above n. 61, 131. UNGA ‘Decisions Taken by the Preparatory Committee at its Session Held From 4 to 15 August 1997’, UN Doc. A/AC.249/1997/L.8/Rev.1 (14 August 1997), in Bassiouni, The Legislative History, above n. 18, 102; Hall, ‘The Third and Fourth Sessions’, above n. 61, 131, also refers to a statement by Samoa, in August 1997, supporting universal jurisdiction for the Court, as well as to discussions of the French proposal. E. Wilmshurst, ‘Jurisdiction of the Court’, in R.S. Lee (ed.), The International Criminal Court: The Making of the Rome Statute. Issues, Negotiations, Results (The Hague: Kluwer Law International, 1999), 131; A. Bos, ‘From the International Law Commission’, in Cassese et al. (eds.), The Rome Statute, above n. 40, 57. Zutphen Draft Statute for the International Criminal Court, ‘Report of the InterSessional Meeting from 19 to 30 January 1998 in Zutphen, the Netherlands’, UN Doc. A/AC.249/1998/L.13 (3 February 1998) (hereinafter, Zutphen Draft); L.S. Wexler, ‘Commentary on Parts 1 and 2 of the Zutphen Intersessional Draft: Establishment of the Court,

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In the last session of the PrepCom, events took an interesting turn. The United Kingdom presented a comprehensive position, which provided, among others, for ‘automatic jurisdiction’ of the Court and required the consent of both the custodial and the territorial State.72 Germany, on the other hand, advocated for universal jurisdiction of the Court. It argued that ‘there is no reason why the ICC – established on the basis of a Treaty concluded by the largest possible number of States – should not be in the very same position to exercise universal jurisdiction for genocide, crimes against humanity and war crimes in the same manner as the Contracting States themselves’.73 Ultimately, the 1998 PrepCom Report largely endorsed the Zutphen Report in Draft Article 7, entitled ‘Preconditions to the exercise of Jurisdiction’.74 It contained two options for acceptance of jurisdiction. For both, the same jurisdictional requirements were listed in brackets; consent of ‘the State on the territory of which the act [or omission] in question occurred’, the custodial State, the State of nationality of the suspect or of the victim.75 It was in this form that the issue was referred to the Rome Conference.

3.4 Negotiations at the Rome Conference At the Rome Conference, jurisdiction proved to be among the most controversial issues, decided only at the last possible moment.

72

73

74 75

´ Complementarity, Jurisdiction and Admissibility’, Nouvelles Etudes P´enales, 13bis (1998), 17, 21. Preparatory Committee on the Establishment of an International Criminal Court, Working Group on Complementarity and Trigger Mechanism, Proposal by the United Kingdom of Great Britain and Northern Ireland, UN Doc. A/AC.249/1998/WG.3/DP.1 (25 March 1998), which appeared in the ‘Report of the Preparatory Committee on the Establishment of an International Criminal Court’, UN Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court (Rome 15 June–17 July 1998) (14 April 1998) UN Doc. A/CONF.183/2/Add.1, 37–38, as ‘further option for articles 6, 7, 10 and 11’. As the proposal mentions, the reference to the custodial state was placed in brackets, ‘because there may be disagreement as to whether it is the right state in this context’, at 2, para. 6; Further, Wilmshurst, ‘Jurisdiction of the Court’, above n. 70, 132. UN Doc. A/AC.249/1998/DP.2 (23 March 1998); M. Bergsmo, ‘Occasional Remarks on Certain State Concerns about the Jurisdictional Reach of the International Criminal Court, and their Possible Implications for the Relationship between the Court and the Security Council’, Nordic Journal of International Law, 69 (2000), 87, 100; Kaul, ‘Preconditions’, above n. 68, 597–598. ‘Report of the Preparatory Committee on the Establishment of an International Criminal Court’, above n. 72, 30–31. Ibid.

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The positions at the beginning of the Conference, as regards the question of the jurisdiction of the Court, were succinctly summarized in the Committee of the Whole by the coordinator.76 They comprised four jurisdictional models. The first, proposed by the United Kingdom, involved ‘automatic’ jurisdiction of the Court for the core crimes, while the cumulative consent of the territorial State, the ‘custodial’ State and the State of nationality of the accused were the necessary preconditions for the exercise of the Court’s jurisdiction.77 The second alternative, known as the German proposal, advocated universal jurisdiction over the core crimes, regardless of any further consent even for States not Parties.78 The third option called for additional declarations of acceptance of the Court’s jurisdiction, which could vary both in substance and in duration. The territorial nationality of the suspect and of the victim and ‘custodial’ States, as well as in the event of extradition, the requesting State, would have to consent to the Court’s jurisdiction.79 The last option involved ‘automatic’ jurisdiction for the Court and provided for the consent of all the States enumerated in option 3.80 In the opening discussion on jurisdiction,81 the United Kingdom changed its earlier position and proposed the consent of the territorial State as the sole precondition for the exercise of jurisdiction.82 The German delegation, for its part, reiterated its own proposal on universal jurisdiction.83 The delegation of the Republic of Korea made public its 76

77 78 81

82

83

UN Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, ‘Summary Records of the 7th Meeting of the Committee of the Whole’, UN Doc. A/CONF.183/C.1/SR.7 (19 June 1998), Official Records, Vol. II, 182, paras. 32– 35 (per E. Kourula, Coordinator); S.A. Williams and W.A. Schabas, ‘Article 12’, in O. Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court: Observers’ Notes, Article by Article (2nd edn, Munich: Beck-Hart-Nomos, 2008), 553; F. Lattanzi, ‘The Rome Statute and State Sovereignty: ICC Competence, Jurisdictional Links, Trigger Mechanism’, in F. Lattanzi and W. Schabas (eds.), Essays on the Rome Statute of the International Criminal Court (Ripa Fagnano Alto: Sirente, 1999), vol. I, 56. ‘Summary Records of the 7th Meeting’, above n. 76, 182. 79 80 Ibid. Ibid. Ibid. Reference is made here only to the official discussions; P. Kirsch and J.T. Holmes, ‘The Rome Conference on an International Criminal Court: The Negotiating Process’, American Journal of International Law, 93 (1999), 3, n. 4, informal negotiations were held in parallel to the official discussions, throughout the negotiations at Rome. ‘Summary Records of the 7th Meeting’, above n. 76, 184, para. 45, n. 27 (per E. Wilmshurst); E. La Haye, ‘The Jurisdiction of the International Criminal Court: Controversies over the Preconditions for Exercising its Jurisdiction’, Netherlands International Law Review, 46 (1999), 1, 5–6. ‘Summary Records of the 7th Meeting’, above n. 76, 184, paras. 50–51 (per H.P. Kaul); in the same spirit, UN Diplomatic Conference of Plenipotentiaries on the Establishment

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own approach.84 The Korean proposal provided that the Court could have jurisdiction through conferral on the basis of State consent; however, the consent of only one of the ‘interested’ States – i.e. the territorial State, the State of nationality of the perpetrator, the ‘custodial’ State, or the State of nationality of the victim – would suffice for the exercise of jurisdiction by the Court;85 the jurisdictional nexus requirement, therefore, ‘should not be cumulative, but selective’.86 The subsequent debates in the Committee of the Whole focused basically on the approach espoused by each delegation, although the positions expressed did not vary significantly, considering each State’s affiliation to one or another of the negotiating groups.87 The debates focused on the appropriateness of following the universal or quasi-universal models advocated by Germany and Korea, respectively, or a more consent-based approach, similar to the UK proposal. The United States strongly opposed the German and Korean proposals. In its view, ‘the universal jurisdiction proposal for the Court would represent an extraordinary principle, in conflict with certain fundamental values of international law and would undermine the Statute generally’; it would have the effect of ‘applying a treaty to a State without that State’s

84

85 86 87

of an International Criminal Court, ‘Summary Records of the 9th Meeting of the Committee of the Whole’, UN Doc. A/CONF.183/C.1/SR.9 (22 June 1998), Official Records, Vol. II, 193, para. 9 (per H.P. Won, Republic of Korea) and at 194, para. 20 (per M. Politi, Italy); Williams and Schabas, ‘Article 12’, above n. 76, 550–552; H.P. Kaul and C. Kress, ‘Jurisdiction and Cooperation in the Statute of the International Criminal Court: Principles and Compromises’, Yearbook of International Humanitarian Law, 2 (1999), 143, 145– 157. UN Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, ‘Republic of Korea: Proposal Regarding Articles 6[9], 7[6] and 8[7]’, UN Doc. A/CONF.183/C.1/L.6 (18 June 1998), Official Records, Vol. III, 227, 229; Summary Records of the 7th Meeting’, above n. 76, 184, paras. 52–54 (per Choi Tae-huyn); Y. Sok Kim, The International Criminal Court: A Commentary of the Rome Statute (Leeds: Wisdom House, 2003), 211–215. ‘Summary Records of the 7th Meeting’, above n. 76, 184, paras. 52–54 (per Choi Tae-huyn). Ibid., 184, para. 53. It appears that certain blocs or groups of states consolidated for the purposes of negotiating the ICC Statute both before and during the Rome Conference and, accordingly, took similar or identical positions on certain issues. In more detail on the composition and positions of the so-called Like-Minded Group, Non-Aligned Movement, the P-5, the South African Development Community group and others, P. Kirsch, ‘Introduction’, in H.A.M. von Hebel et al. (eds.), Reflections on the International Criminal Court: Essays in Honour of Adriaan Bos (The Hague: T.M.C. Asser Press, 1999), 1–4; Kirsch and Holmes, ‘The Rome Conference’, above n. 81, 3–5; Wilmshurst, ‘Jurisdiction of the Court’, above n. 70, 135; Glasius, The International Criminal Court, above n. 62, 22–26.

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consent, and in the absence of any action by the Security Council under Chapter VII of the Charter of the United Nations’.88 Instead, the United States argued for the requirement of the consent of the non-State Party, ‘whose official actions were alleged to be crimes’. In this spirit, the US delegation accepted the inclusion of the consent of the State of nationality, the territorial State, as well as ‘in the case of peacekeeping or international conflict, . . . , the State which had sent the troops concerned. That State should be responsible for their prosecution or for consenting to their prosecution by the Court.’89 The Russian Federation, for its part, took the view that, while in cases of war crimes and crimes against humanity the consent of the territorial and the custodial State was required, in cases of genocide and aggression ‘the agreement of the State affected was not necessary’.90 On 6 July 1998, the Bureau presented a Discussion Paper, in order to streamline the debate.91 It contained four options under Article 7, para. 1; the Korean proposal (option 1), the consent of only the territorial State and the State of registration for ships and aircrafts (option 2), the consent of both the territorial and the custodial State (option 3), the consent of only the State of nationality (option 4).92 This Discussion Paper left out the German proposal – a fact that did not go unnoticed by the delegations supporting it.93 The United States, on the other hand, fiercely opposed the 88 89 90 91

92 93

Ibid., 195, para. 23, for D. Scheffer, the United States supported retaining the consent of the state of nationality as a precondition. ‘Summary Records of the 9th Meeting’, above n. 83, 195, para. 24 (per D. Scheffer). Ibid., 196, para. 41 (per I. A. Panin). UN Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, ‘Bureau Discussion Paper of the Committee of the Whole: Part 2. Jurisdiction, Admissibility and Applicable Law’, UN Doc. A/CONF.183/C.1/L.53 (6 July 1998), Official Records, Vol. III, 204 [Article 7 is at 208–209]. The paper was introduced for discussion at the 25th meeting of the Committee of the Whole on 8 July 1998, ‘Summary Records of the 25th Meeting of the Committee of the Whole’, UN Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court (Rome 15 June–17 July 1998) (8 July 1998) A/CONF.183/C.1/SR.25, 267, para. 1. Official Records, Vol. III, above n. 18, 204–205. Indicatively, UN Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, ‘Summary Records of the 29th Meeting of the Committee of the Whole’, UN Doc. A/CONF.183/C.1/SR.29 (9 July 1998), Official Records, Vol. II, 296, para. 23 (per H. Brown) and 304, para. 183 (per H.-P. Kaul), whose delegation was ‘dismayed that its proposal on universal jurisdiction had not been put forward as an option in the discussion paper’; UN Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, ‘Summary Records of the 31st Meeting of the Committee of the Whole’, UN Doc. A/CONF.183/C.1/SR.31 (13 July 1998), Official Records, Vol. II, 315, para. 16 (per Paul Ngatse); UN Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, ‘Summary Records

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Korean option; ‘[i]f the principle of universal jurisdiction were adopted, many Governments would never sign the treaty and the United States would have to actively oppose the Court’, because it would erode fundamental principles of treaty law and allow for the possibility that the Court would ‘prosecute the officials of a State that was not a party to the treaty’ or had not otherwise consented, a fact which would amount to ‘a form of extraterritorial jurisdiction that would be quite unorthodox’.94 Russia changed its earlier position and accepted as preconditions the consent of both the territorial and the custodial State, with the possibility of including the ‘preliminary agreement’ of the State of nationality of the perpetrator.95 Following discussions on the Working Paper, the Bureau presented a proposal on Part 2 a week before the conclusion of the negotiations.96 The Bureau Proposal distinguished in Draft Article 7 on the preconditions for the exercise of jurisdiction between cases involving charges of genocide, which followed the Korean proposal, and cases involving war crimes and crimes against humanity. For the latter case, the draft contained three options; option 1 repeated the Korean proposal, option 2 provided for the cumulative consent of the territorial and the custodial State and option 3 required exclusively the consent of the State of nationality of the perpetrator.97 For present purposes, the specific formulation on territorial jurisdiction used in both the Bureau Discussion Paper and the Bureau Proposal is important. They provided that the following States in each case should accept the jurisdiction of the Court: ‘the State on the territory of which the act or omission in question occurred or, if the crime was committed on board a vessel or aircraft, the State of registration of that vessel of aircraft.’98 The proposed jurisdictional model was discussed in the Committee of the Whole. The European Union supported the Korean proposal for all crimes, while the United States again reiterated its strong objection to the endorsement of the Korean proposal for any of the crimes in the

94 95 96

97 98

of the 36th Meeting of the Committee of the Whole’, UN Doc. A/CONF. 183/C.1/SR.36 (13 July 1998), Official Records, Vol. II, 348, para. 51 (per the ICRC). ‘Summary Records of the 29th Meeting’, above n. 93, 297, para. 42 (per D. Scheffer). Ibid., 301, para. 113 (per K. Gevorgian). UN Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, ‘Bureau Proposal of the Committee of the Whole: Part 2. Jurisdiction, Admissibility and Applicable Law’, UN Doc. A/CONF.183/C.1/L.59 (10 July 1998), Official Records, Vol. III, 212. Ibid., 216. Ibid., ‘Bureau Discussion Paper’, above n. 91, Draft Article 7, option 1.

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Statute.99 The main criticism against the Bureau Proposal was that it complicated matters, whereas a single, uniform and coherent regime for all three core crimes was required.100 In light of these discussions, the United States made a proposal on 14 July 1998, requiring the consent of both the territorial and the nationality State for the exercise of jurisdiction.101 From this point onwards, the official records provide little, if any, useful information on the issue under consideration. Unofficial sources, however, give their own version of events. Certain commentators have suggested – and, up to now, this version of the facts has not been contested – that at the last week of the negotiations, the Korean proposal seemed to gather significant support.102 At this point – and in particular the last few days of the negotiations – unofficial confidential negotiations were undertaken by the delegations 99

100

101

102

UN Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, ‘Summary Records of the 33rd Meeting of the Committee of the Whole’, UN Doc. A/CONF.183/C.1/SR.33 (13 July 1998), Official Records, Vol. II, 321, para. 20 (per G. Hafner) and at 322, para. 27 (per D. Scheffer). The United States considered that the solution should be found by combining options 2 and 3, requiring the cumulative consent of the territorial State and the State of nationality of the perpetrator. Of the same view were also India, ibid., at 322–323, para. 36, which required custodial and territorial State consent, as well as China, ibid., at 323, para. 41, which preferred the cumulative consent of the State of nationality of the perpetrator and the territorial state. ‘Summary Records of the 33rd Meeting’, above n. 99, at 325, para. 70 and at 326, para. 79 (per F. Berman); UN Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, ‘Summary Records of the 34th Meeting of the Committee of the Whole’, UN Doc. A/CONF.183/C.1/SR.34 (13 July 1998), Official Records, Vol. II, 328, para. 12 (per D. Chatoor), at 329, para. 29 (per T. van Boven), at 329, para. 35 (per J.A. Y´an˜ ez-Barnuevo) and at 332, para. 89 (per V. Saboia); UN Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, ‘Summary Records of the 35th Meeting of the Committee of the Whole’, UN Doc. A/CONF.183/C.1/SR.35 (13 July 1998), Official Records, Vol. II, 336, para. 21 (per B. Bihamiriza), at 338, para. 38 (per M. Lehto) and at 339, para. 51 (per C. Wenaweser); UN Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, ‘Summary Records of the 36th Meeting of the Committee of the Whole’, UN Doc. A/CONF.183/C.1/SR.36 (13 July 1998), Official Records, Vol. II, 343, para. 1 (per R. Fife), at 345, para. 25 (per L. Agius), at 346, para. 28 (per E. Tomiˇc), at 347, para. 37 (per R. Segura) and at 348, para. 48 (per P. Tomka). UN Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, ‘United States of America: Proposal Regarding Article 7’, UN Doc. A/CONF.183/C.1/L.70 (14 July 1998), Official Records, Vol. III, 247. R. Phillips, ‘The International Criminal Court Statute: Jurisdiction and Admissibility’, Criminal Law Forum, 10 (1999), 61, 69. Further, Williams and Schabas, ‘Article 12’, above n. 76, 553; Glasius, The International Criminal Court, above n. 62, 75; Kaul, ‘Preconditions’, above n. 68, 600.

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of the so-called P-5 (Permanent Members of the Security Council), in order to reach a common position. These negotiations were kept confidential not only vis-`a-vis the NGOs present in Rome, but also other state delegations.103 The outcome of the last week of intensive negotiations between the P-5 culminated in an unofficial proposal on 15 July 1998. It provided that the Court would have jurisdiction solely on the basis of territoriality, but it would not exercise its jurisdiction over nationals of States not Parties, when ‘the activity alleged to constitute the crime is an act of the State in question acknowledged by it [the State not party in question] as such.’104 Upon presentation of this Proposal to the Bureau and a few, selected States, another unofficial counter-proposal was presented by Germany, which insisted for Article 7, option 1 of the Bureau Proposal, i.e. the requirement of the consent of one or more of the following States: territorial, custodial, nationality of the victim or of the suspect.105 Research in the available official documentation reveals further that on 16 July 1998, the Chairman of the Committee stated that, due to lack of time, the Bureau would ‘put together in a single document the texts of the articles adopted by the Drafting Committee, the texts formulated by the Working Groups and the Coordinators and the texts that had emerged through consultations, in order to facilitate the work of the Committee of the Whole.’106 In the hours that intervened between this session and the last session of the Committee, which took place on the following

103

104

105 106

Glasius, The International Criminal Court, above n. 62, 72, mentions that the leader of the Spanish delegation complained publicly about a ‘lack of transparency regarding the package that will be presented to delegations’, and makes further reference to NGO ignorance of the content of the P-5 meetings. Also Kaul, ‘Preconditions’, above n. 68, 602–603. This version of events is primarily based on the writings on H.-P. Kaul, ‘Special Note: The Struggle for the International Criminal Court’s Jurisdiction’, European Journal of Crime, Criminal Law and Criminal Justice, 6 (1998), 364, 374–375, which reproduces in full the document in question, entitled ‘Informal Paper put together by the permanent members of the Security Council on 15 July 1998 in Rome’: The same descriptions are provided, to a greater or lesser extent, by D.J. Scheffer, ‘The United States and the International Criminal Court’, American Journal of International Law, 93 (1999), 12, 19–20; Wilmshurst, ‘Jurisdiction of the Court’, above n. 70, 137. Kaul, ‘Special Note’, above n. 104, 59–60, containing what is entitled ‘Informal Counterproposal elaborated by the German side on 16 July, in Rome’. UN Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, ‘Summary Records of the 40th Meeting of the Committee of the Whole’, UN Doc. A/CONF.183/C.1/SR.40 (16 July 1998), 355, para. 1.

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day, the issue was discussed informally within the Bureau and among representatives of the delegations.107 At the last session of the Committee of the Whole, on 17 July 1998, the Bureau officially108 presented a single text,109 which became ultimately the Rome Statute of the International Criminal Court.110 As the Chairman observed, ‘[t]he text reflected a very delicate balance between the views of the delegations, and it was essential that that balance was preserved.’111 Accordingly, the Bureau recommended the adoption of the text ‘as a complete package.’112 During the ensuing debate on the jurisdictional preconditions,113 the United States re-introduced its earlier proposal,114 according to which the Court would have jurisdiction only if both the territorial and the State of nationality of the perpetrator had consented to the Court’s 107

108

109

110

111 112 113

114

For personal accounts of the process and the role of the informal negotiators, among many others, Kirsch and Holmes, ‘The Rome Conference’, above n. 81, 3–6, 8–10; Kaul ‘Preconditions’, above n. 68, 600–605; Wilmshurst, ‘Jurisdiction of the Court’, above n. 70, 136–139, referring also to informal non-papers that appeared in the last days of the negotiations; H.A.M. von Hebel, ‘An International Criminal Court: A Historical Perspective’, in H.A.M. von Hebel et al. (eds.), Reflections on the ICC, above n. 87, 35–38. P. Kirsch and D. Robinson, ‘Reaching Agreement at the Rome Conference’, in Cassese et al. (eds.), The Rome Statute, above n. 40, 75, who mention that the Bureau made the text (UN Doc. A/CONF.183/C.1/L.76 and Add. 1 to Add. 14 (16 July 1998)), available to the delegates ‘in the late hours of 16 July’. See UN Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, ‘Summary Records of the 42nd Meeting of the Committee of the Whole’, UN Doc. A/CONF.183/C.1/SR.42 (17 July 1998), 360; The text for the Statute of the ICC proposed by the Bureau of the Committee of the Whole was contained in documents A/CONF.183/C.1/L.76 and Add.l, Add.2 and Corr.l, Add.3 and 4, Add.5 and Corr.l, Add.6 and Corr.l, Add.7 and 8, Add.9 and Corr.l and Add.10–14. As included in the UN Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, ‘Draft Report of the Committee of the Whole’, UN Doc. A/CONF.183/C.1/L.92 and Corr.l (16 July 1998); ‘Summary Records of the 42nd Meeting of the Committee of the Whole’, above n. 109, 362, and adopted in the 9th Plenary Meeting, UN Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, ‘Rome Statute of the International Criminal Court’ UN Doc. A/CONF.183/9 (17 July 1998); see further UN Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, ‘Summary Records of the 9th Plenary Meeting of the Committee of the Whole’, UN Doc. A/CONF.183/SR.9 (17 July 1998). ‘Summary Records of the 42nd Meeting’, above n. 109, 360, para. 5. Ibid., para. 5. Ibid., paras. 6–19, for other last-minute proposals tabled, which related to different issues, particularly the role of the Security Council and its relationship to the Court, introduced by India and Mexico, which were ultimately not voted upon. UN Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, ‘Proposal Submitted by the United States of America’ UN Doc. A/CONF.183/C.1/L.70 (14 July 1998), for the earlier proposal dated 14 July 1998.

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jurisdiction.115 The United States further proposed that ‘[w]ith respect to States not Party to the Statute, the Court shall have jurisdiction over acts committed in the territory of a State not Party, or committed by officials or agents of a State not Party in the course of official duties and acknowledged by the State as such, only if the State or States in question have accepted jurisdiction in accordance with this article.’116 China supported this motion, arguing that ‘[A]rticle 12 concerning the issue of jurisdiction was the most important article in the whole Statute’.117 These proposals, however, were ultimately not put to a vote due to a successful no-action motion proposed by Norway.118 At the last plenary meeting of the Conference, the text, as proposed by the Bureau and endorsed by the Committee of the Whole was adopted as a whole.119

3.5 Conclusions The preparatory works of the Rome Statute reveal that the promulgation and adoption of Article 12 on the preconditions for the exercise of jurisdiction was an integral part of the ‘take it or leave it’ package-deal at the very end of the Rome Conference. As such, its adoption was intimately connected with provisions aimed at allaying certain States’ concerns over what they perceived as necessary jurisdictional safeguards against the potential abuse of the Court’s jurisdiction, such as Articles 98 and 124 of the Statute.120 The provision on the preconditions for the exercise of jurisdiction was, after all, always part of a system. The influential Bureau Paper and Proposal included options on that provision in the context of an entire system of adjudication, concerning also the State consent regime (opt-in, opt-out and automatic jurisdiction approaches) and the crimes over which the Court would have jurisdiction. The main reluctance to award significance to these preparatory works, however, stems from the fact that the official record is at a critical juncture far from complete. It appears that Article 12 of the Statute is the official, state-endorsed version of the text prepared by the Bureau on the last night 115 116 117 119 120

‘Summary Records of the 42nd Meeting’, above n. 109, 361, para. 22 (per D. Scheffer). Ibid., para. 22. 118 Ibid., Liu Daqun (China), 362, para. 28. Ibid., 361–362, paras. 24–31. ‘Summary Records of the 9th Plenary Meeting’, above n. 110, 121. The document was circulated in the Conference as UN Doc. A/CONF.183/9 (17 July 1998). Kaul, ‘Preconditions’, above n. 68, 602–604; M. Bergsmo, ‘The Jurisdictional Regime of the International Criminal Court (Part II: Articles 11–19)’, European Journal of Crime, Criminal Law and Criminal Justice, 6(4) (1998), 29, 31.

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of the negotiations and presented to the Committee of the Whole in its last session. Whatever occurred between and beyond the discussions, as officially documented, which proved to be vital for the formulation, the wording and the underlying legal choices made in Article 12 of the ICC Statute between 16 and 17 July 1998 (or even during the last week of the negotiations) has not been officially recorded. It therefore remains a topic open to speculation, even though there are – up to now, uncontested – unofficial personal accounts of what really happened in the last critical hours of the negotiations. To point out one example, it remains unclear how the wording changed from ‘act or omission in question’ in Draft Article 7 in the Bureau’s Proposal to the ‘conduct in question’ in Article 12(2)(a) as finally adopted.121 At the outset, it appears that the choice of territoriality or nationality of the suspect jurisdiction was made by the Bureau not only due to its ‘legal unassailability’,122 but also under the pressure of gathering State support, achieving a compromise and concluding the negotiations successfully within a limited period of time.123 This account does not lend itself to uncontested legal conclusions for the scope of application of territorial jurisdiction – for example, in cases of crimes committed over the internet, objective territoriality and jurisdiction in cases of occupation. The negotiations appear to have moved between the universalist aspirations of Germany and Korea, on the one hand, and the ‘quest for a veto power’ of certain States, on the other.124 In this tension, it appears that, ultimately, the inclusion of the requirement of the consent of the territorial State in the Statute was not the key problem. The question was rather whether the consent of the territorial State by itself would be sufficient for the Court’s jurisdiction, without the cumulative consent of the State of nationality of the accused. This was an important question as regards the possible prosecution of nationals of States not Parties to the Statute for crimes committed during peacekeeping operations or ‘humanitarian interventions’. 121 122 123 124

See further in Section 5.4 on Bassiouni’s attribution of this formulation to the disjunctive drafting process in Rome. Kirsch and Robinson, ‘Reaching Agreement’, above n. 108, 84. Kirsch and Robinson, ‘Reaching Agreement’, above n. 108, 76; Williams and Schabas, ‘Article 12’, above n. 76, 560. Bergsmo, ‘Occasional Remarks’, above n. 73, 100, 101; M.J. Struett, The Politics of Constructing the International Criminal Court: NGOs, Discourse and Agency (New York: Palgrave Macmillan, 2008), 100, 101.

4 Instruments of interpretation of the Rome Statute and Article 12(2)(a)

4.1 Introduction Before engaging with the substantive analysis of Article 12(2)(a), it is necessary to briefly review the applicable means of interpretation for that provision. This discussion is important, because any concluding observations to be made on the scope of Article 12(2)(a) involving localization devices or territorial jurisdiction in situations of occupation will depend heavily on the means of interpretation selected and the weight awarded to them. Accordingly, the following pages will examine the instruments of interpretation available to the Court, in accordance with the Rome Statute and the Court’s first jurisprudence. In so doing, this chapter will not touch only upon the well-rehearsed themes of grammatical, contextual and teleological interpretation under the VCLT (in 4.2), but will further assess the application of rules of interpretation provided by the Statute itself (in Sections 4.3–4.4.) and in particular Article 21(3) and the principle of legality. In closing, certain foundational submissions will be made, explaining the selection of rules of interpretation that will be used in subsequent chapters.

4.2 Interpretation of the Rome Statute in accordance with the Vienna Convention on the Law of Treaties; contextual and teleological interpretation For the purposes of this examination, the relevant rules of interpretation stem primarily from articles 31 and 32 of the VCLT.1 These rules have been integrated in the system of the ICC by the ‘authentic guide to 1

Situation in the Democratic Republic at the Congo (Judgment on the Prosecutor’s Application for Extraordinary Review of Pre-Trial Chamber I’s 31 March 2006 Decision Denying Leave to Appeal) ICC-01/04 (13 July 2006) (hereinafter, Extraordinary Review Appeal), para. 33.

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the interpretation of the Statute’ stipulated by the Appeals Chamber in its early jurisprudence.2 The ‘authentic guide’ reads as follows: ‘The rule governing the interpretation of a section of the law is its wording read in context and in light of its object and purpose. The context of a given legislative provision is defined by the particular sub-section of the law read as a whole in conjunction with the section of an enactment in its entirety. Its objects may be gathered from the chapter of the law in which the particular section is included and its purposes from the wider aims of the law as may be gathered from its preamble and the general tenor of the treaty.’3 For present purposes, the Court’s first jurisprudence on jurisdiction shows an attachment to contextual and teleological interpretation. As regards the contextual approach, in Gbagbo the Court upheld the competence of a State to accept the jurisdiction of the Court over future crimes largely by reading Article 12(3) in conjunction with Rule 44(2) and Article 13 of the Statute.4 Likewise, in the Kenyan Cases, the interpretation of Articles 19(2), 19(6) and 82(1)(a) in the light of Article 61 and Rule 58(2) was instrumental in the final ruling of the Appeals Chamber concerning the classification of challenges to the contextual elements of crimes against humanity as substantive rather than jurisdictional.5 Teleological interpretation, on the other hand, ‘is mirrored in the principle of effectiveness and based on the object and purpose of a 2

3

4

5

Prosecutor v. Thomas Lubanga Dyilo (Decision on the Admissibility of the Appeal of Mr Thomas Lubanga Dyilo against the Decision of the Pre-Trial Chamber I entitled ‘D´ecision sur la Confirmation des Charges of 29 January 2007’) ICC-01/04–01/06 (OA 8) (13 June 2007), para. 8. The Extraordinary Review Appeal, above n. 1, at para. 33. It is used routinely by the Chambers; indicatively, Prosecutor v. Jean-Pierre Bemba Gombo (Decision Adjourning the Hearing pursuant to Article 67(7)(c)(ii) of the Rome Statute) ICC-01/05–01/08 (3 March 2009), para. 31. Prosecutor v. Laurent Gbagbo (Judgment on the Appeal of Mr Laurent Koudou Gbagbo against the Decision of Pre-Trial Chamber I on Jurisdiction and Stay of Proceedings) ICC-02/11–01/11 (OA 2) (12 December 2012) (hereinafter, Gbagbo Jurisdictional Appeal Decision), paras. 79–82. Prosecutor v. William Samoei Ruto et al. (Decision on the Appeal of Mr William Samoei Ruto and Mr Joshua Arap Sang against the Decision of Pre-Trial Chamber II of 23 January 2012 entitled ‘Decision on the Confirmation of Charges pursuant to Article 61(7)(a) and (b) of the Rome Statute’) ICC-01/09–01/11–414 (OA 3 OA 4) (24 May 2012) (hereinafter, Ruto Jurisdictional Appeal Decision), paras. 21–28; Prosecutor v. Francis Kirimi Muthaura et al. (Decision on the Appeal of Mr Kirimi Muthaura and Mr Uhuru Muigai Kenyatta against the Decision of Pre-Trial Chamber II of 23 January 2012 entitled ‘Decision on the Confirmation of Charges pursuant to Article 61(7)(a) and (b) of the Rome Statute’) ICC-01/09–02/11–425 (OA 4) (24 May 2012) (hereinafter, Muthaura Jurisdictional Appeal Decision), paras. 26–36.

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treaty . . .’.6 The Court is said to have recourse to this rule of interpretation, particularly in order to ‘enable the system to . . . attain its appropriate effects, while preventing any restrictions of interpretation that would render the provisions of the treaty inoperative (emphasis in the original)’.7 Teleological interpretation is important for the clarification of generally or ambiguously worded provisions in the Rome Statute.8 The first decisions of the Court offer many examples where teleological considerations have been decisive for the outcome.9 In the context of jurisdiction specifically, in the Gbagbo Case, the Court supported its conclusion that the terms ‘crime in question’ in Article 12(3) cover also future crimes by recourse to deterrence as one of the main purposes of the Statute.10 Presumably, the use of complementarity in the Mbarushimana decision was more teleological than contextual.11 In that case, the Court ruled that a connecting link between the ongoing ‘situation of crisis’ and the crimes charged was required also for the purposes of territorial jurisdiction. To hold otherwise, said the Court, would allow a state to delegate ‘wholesale’ its jurisdictional authority to the Court, which would be inconsistent with the principle of complementarity.12 In conclusion, contextual and teleological interpretation is part of the Court’s emerging practice on interpretation. The possibility of their

6 7

8

9

10 11

12

Prosecutor v. Jean-Pierre Bemba Gombo (Decision Adjourning the Hearing pursuant to Article 67(7)(c)(ii) of the Rome Statute) ICC-01/05–01/08 (3 March 2009), para. 36. Ibid., citing with approval the ruling of the case Inter-American Court of Human Rights, Fairen Garbi and Solis Corrales (Preliminary Objections), Judgment (ser. C) No. 2 (26 June 1987), para. 35. Prosecutor v. Germain Katanga and Mathien Ngudjolo Chui (Reasons for the Oral Decision on the Motion Challenging the Admissibility of the Case (Article 19 of the Statute)) ICC01/04–01/07 (16 June 2009) (hereinafter, Katanga Admissibility Decision), para. 36; D. Hunt, ‘The International Criminal Court: High Hopes, “Creative Ambiguity” and an Unfortunate Mistrust in International Judges’, Journal of International Criminal Justice, 2(1) (2004), 67. Prosecutor v. Thomas Lubanga Dyilo (Decision on the Confirmation of Charges) ICC01/04–01/06–803-tEN (29 January 2007) (hereinafter, Lubanga Confirmation Decision), paras. 278, 281, 284–5; Prosecutor v. Jean-Pierre Bemba Gombo, above n. 3, at para. 37 (on procedure); Prosecutor v. Thomas Lubanga Dyilo (Judgment on the Appeals of the Prosecutor and the Defence against Trial Chamber I’s Decision on Victim’s Participation of 18 January 2008) ICC-01/04–01/06 (OA9, OA10) (11 July 2008) para. 97 (on leading evidence); the Katanga Admissibility Decision, above n. 8, at paras. 77–78 (on admissibility). Gbagbo Jurisdictional Appeal Decision, above n. 4, para. 83. Prosecutor v. Callixte Mbarushimana (Decision on the ‘Defence Challenge to the Jurisdiction of the Court’) ICC-01/04–01/10–451 (26 October 2011) (hereinafter, Mbarushimana Decision on Jurisdiction). Ibid., para. 16. For criticism, see below Section 6.3.7.

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application will also be considered with regard to the Court’s jurisdiction under Article 12(2)(a).

4.3 Interpretation of the Rome Statute in accordance with the Statute’s rules of interpretation Beyond the Appeals Chamber’s ‘authentic’ guide on interpretation and the rules of the VCLT, the Rome Statute itself provides for certain rules concerning the interpretation of its provisions. These rules are derived mostly from the provisions of Article 21(3), 22 (principle of legality), 12813 and 9 of the Statute.14 In light of the controversy surrounding Article 9, which seems to relate only to the subject matter jurisdiction of the Court,15 the critical question to be examined next is whether Article 21(3) and the principle of legality may be applied for the interpretation of the Court’s jurisdiction under Article 12(2)(a).

4.3.1 Interpretation of Article 12(2)(a) of the Rome Statute in accordance with Article 21(3) Under Article 21(3) of the Rome Statute, ‘[t]he application and interpretation of law pursuant to this article must be consistent with internationally recognized human rights’ and with due respect to the principle of non-discrimination.16 Under this provision, the Court is duty 13

14 15

16

Art. 128 (Authentic Texts) of The Rome Statute of the International Criminal Court, 7 July 1998 (in force 1 July 2002), 2187 UNTS 3 (hereinafter, Rome Statute). For example, Prosecutor v. Germain Katanga (Judgment on the Appeal of Katanga Against the Decision of the Pre-Trial Chamber I entitled ‘Decision on the Defence Request Concerning Languages’) ICC-01/04–01/07 (OA 3) (27 May 2008) (hereinafter, Katanga Languages Appeal), paras. 23, 40. ‘Elements of Crimes shall assist the Court in the interpretation and application of Articles 6, 7 and 8 . . .’. See in this regard Prosecutor v. Omar Hassan Ahmad Al-Bashir (Decision on the Prosecution’s Application for a Warrant of Arrest against Omar Hassan Ahmad Al-Bashir) ICC-02/05–01/09–3 (3 March 2009) (hereinafter, Al-Bashir Arrest Warrant Decision), para. 131; for the Majority the use of the Elements of Crimes was seen as obligatory for the Court; Judge Uˇsacka convincingly dissented on this point, ibid. (Separate and Partly Dissenting Opinion of Judge Anita Uˇsacka) at 9, para. 18. On Art. 21(3) as an instrument of interpretation of the Statute, see generally, M.H. Arsanjani, ‘The Rome Statute of the International Criminal Court’, American Journal of International Law, 93 (1999) 28–29; J. Barboza, ‘International Criminal Law’, Recueil des Cours de l’Acad´emie de Droit International, 278 (1999), 144–145; A. Pellet, ‘Applicable

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bound (‘must’) to interpret the Statute consistently with internationally recognized human rights. Article 21(3) is said to play a role similar to that of ‘some constitutional guarantees in the internal legal orders’,17 which would indicate that ‘[i]f various interpretations are possible, Article 21 (3) as interpreted in the light of Article 31 (3.c) VCLT obliges the Court to apply the interpretation that is in conformity with human rights standards.’18 The function of this provision as a source of applicable law for the Court is a different matter, one that will not be dealt with here.19 In this respect, under general law of international organizations, rules of interpretation explicitly provided for in a constituent instrument should be afforded priority in interpretation over the general rules of the VCLT.20 The Court, however, has not included explicitly ‘human rights interpretation’ in the Court’s ‘authentic’ guide. In fact, the importance of Article 21(3) ICC Statute in the interpretation of the Statute has varied significantly in the Court’s jurisprudence, depending on the issue at hand. In some cases, such interpretation was standard-setting and decisive,21 and

17 18

19

20

21

Law’, in A. Cassese et al. (eds.), The Rome Statute of the International Criminal Court: A Commentary (Oxford University Press, 2002), 1079–1082; J. Verhoeven, ‘Article 21 of the Rome Statute and the Ambiguities of Applicable Law’, Netherlands Yearbook of International Law, 33 (2002), 14–21; G. Hafner and C. Binder, ‘The Interpretation of Article 21(3) ICC Statute Opinion Reviewed’, Austrian Review of International and European Law, 9 (2004), 168–172; M. McAuliffe DeGuzman, ‘Article 21: Applicable Law’, in O. Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court: Observers’ Notes, Article by Article (Munich: 2nd edn., Beck-Hart-Nomos, 2008), 711–712. Barboza, ‘International Criminal Law’, above n. 16, 145. Hafner and Binder, ‘The Interpretation of Article 21(3) ICC Statute’, above n. 16, at 171; similarly, Pellet, ‘Applicable Law’, above n. 16, 1079–1081; contra, Verhoeven, ‘Article 21 of the Rome Statute’, above n. 16, 15. On this issue, see Prosecutor v. Thomas Lubanga Dyilo (Decision on the Practices of Witness Familiarization and Witness Proofing) ICC-01/04–01/06 (8 November 2006) (hereinafter, Lubanga Witness Proofing Decision), para. 10; Al-Bashir Arrest Warrant Decision, above n. 15, at 16, para. 44. For the expression ‘without prejudice to the rules of the organizations’ in Article 5(3) VCLT, 23 May 1969, in force 27 January 1980, 1155 UNTS 331; (1969) 8 ILM 679; UKTS (1980) 58; see P.J. Sands and P. Klein, Bowett’s Law of International Institutions (6th edn, London: Sweet & Maxwell, 2009) 448; H. Schermers, ‘Interpretation of the Constituent Instruments’, in R.J. Dupuy (ed.), A Handbook on International Organisations (2nd edn, Dordrecht: Martinus Nijhoff, 1998) 406; For the capacity of the ICC as an international organization, F. Martinez, ‘Legal Powers and Status of the Court’, in A. Cassese et al. (eds.), The Rome Statute of the International Criminal Court: A Commentary (Oxford University Press, 2002), 208; W. R¨uckert, ‘Article 4, Legal Status and Powers of the Court’, in Triffterer (ed.), Commentary on the Rome Statute, above n. 16, 122. For the notion of ‘substantial grounds to believe’, Lubanga Confirmation Decision, above n. 9, para. 38; Prosecutor v. Germain Katanga (Decision on the Confirmation of Charges)

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even classified as a ‘general principle of interpretation’ of the Statute.22 In others, it has been given a secondary position compared to the rules of the ‘authentic guide’. In those cases, the implication was that, when the meaning of a provision can be ascertained by recourse to the rules of the VCLT, an examination of the issue under Article 21(3) is redundant.23 Finally, there are also examples in the Court’s jurisprudence where all elements of interpretation are considered.24 Accordingly, it seems that as far as the position of a ‘human rights interpretation’ is concerned, the Appeals Chamber has not definitively ruled on a hierarchy of means of interpretation, i.e. whether certain interpretative approaches should be awarded priority over others in the resolution of specific issues. Nonetheless, the Court has affirmed that interpretation under Article 21(3) should be employed throughout the Statute. In the Lubanga Case, the Appeals Chamber ruled that claims alleging mistreatment of the defendant at the hands of national authorities prior to his/her surrender to the Court were not ‘jurisdictional’ for the purposes of Articles 19(2) and 82(1)(a) at the Rome Statute.25 The Chamber subsequently examined

22

23

24 25

ICC-01/04–01/07–717 (30 September 2008) (hereinafter, Katanga Confirmation Decision), para. 65, and in the Situation in the Republic of Kenya (Decision pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Kenya) ICC-01/09–19 (31 March 2010) (hereinafter, Kenya Authorization Decision), 15, para. 31; Prosecutor v. Ahmad Muhammad Harun (‘Ahmad Harun’) and Ali Muhammad al Abd-al-Rahman (‘Ali Kushayb’) (Decision on the Prosecution Application under Article 58(7) of the Statute) ICC-02/05–01/07 (27 April 2007), para. 28 (reasonable grounds to believe); Katanga Languages Appeal, above n. 13, para. 38 (‘language fully understands and speaks’). Prosecutor v. Thomas Lubanga Dyilo (Decision Establishing General Principles Governing Applications to Restrict Disclosure pursuant to Rule 81(2) and (4) of the Rules of Procedure and Evidence) ICC-01/04–01/06–108 (19 May 2006), para. 7(i); Lubanga Witness Proofing Decision, above n. 19, para. 10; S. Vasiliev, ‘General Rules and Principles of International Criminal Procedure: Definition, Legal Nature and Identification’, in S. Vasiliev and G. Sluiter (eds.), International Criminal Procedure: Towards a Coherent Body of Law (London: Cameron May, 2009), 68–69. Prosecutor v. Thomas Lubanga Dyilo (Judgment on the Appeal of Mr Thomas Lubanga Dyilo against the Decision of Pre-Trial Chamber I entitled ‘D´ecision sur la demande de mise en libert´e provisoire de Thomas Lubanga Dyilo’) ICC-01/04–01/06–824 (13 February 2007), para. 107. Extraordinary Review Appeal, above n. 1, paras. 34–41. Prosecutor v. Thomas Lubanga Dyilo (Judgment on the Appeal of Lubanga against the Decision on the Defence Challenge to the Jurisdiction of the Court pursuant to Article 19(2)(a) of the Statute of 3 October 2006) ICC-01/04–01/06 (OA 4) (14 December 2006), para. 24. Further on this issue, Prosecutor v. Jean-Pierre Bemba Gombo (Decision on Application for Interim Release) ICC-01/05–01/08 (20 August 2008), paras. 42–49, and Gbagbo Jurisdictional Appeal Decision, above n. 4, paras. 93–106.

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whether abuse of process could be used for staying the proceedings under the Statute and replied in the negative.26 It then went on to review the matter from the point of view of Article 21(3). In this context, the Appeals Chamber incidentally noted that Article 21(3) ‘requires the exercise of the jurisdiction of the Court in accordance with internationally recognised human rights norms.’27 The Court particularly highlighted that ‘[h]uman rights underpin the Statute; every aspect of it, including the exercise of jurisdiction by the Court . . . ; first and foremost, in the context of the Statute, the right to a fair trial, a concept broadly perceived and applied embracing the judicial process in its entirety.’28 The Appeals Chamber then concluded that on the basis of this provision it had the power, in accordance with Article 21(3) of the Statute, to stay proceedings in cases of ‘abuse of process’ that negate the right of the accused to a fair trial, but in the end it rejected the appeal as (factually) unfounded.29 Therefore, it would seem that Article 21(3) has a role to play in the exercise of the Court’s kompetenz kompetenz. The precise limit or nature of this role is unclear. At the moment, the Court has not used Article 21(3) for the interpretation of the Statute’s provisions on jurisdiction.30 However, the position of the Appeals Chamber cited above is at least an indication of the Court’s willingness to keep human rights considerations in sight when interpreting any provision of the Statute, including those relating to jurisdiction. The next question to address therefore concerns the implications of ‘internationally recognized human rights’ for the interpretation of provisions on territorial jurisdiction.

4.3.2 Interpretation of Article 12(2)(a) of the Rome Statute in accordance with the principle of legality The main question is whether the principle of legality, as articulated in Articles 22–24 of the Rome Statute and general human rights law may be considered applicable as regards the interpretation of Article 12(2)(a). 26 28

29 30

27 Ibid., paras. 26–35. Ibid., para. 36. Ibid., para. 37; Note also, Prosecutor v. Thomas Lubanga Dyilo (Judgment on the Appeal of the Prosecutor against the Decision of Trial Chamber I entitled ‘Decision on the Release of Thomas Lubanga Dyilo’) ICC-01/04–01/06 (OA 12) (21 October 2008) (Judge Pikis’ Dissenting Opinion), para. 12. Ibid., paras. 40–45. Note that in the same decisions, Article 21(3) was used, but for other issues. Gbagbo Jurisdictional Appeal Decision, above n. 4, paras. 100–101.

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The issue is whether human rights impose a selection for the Court, if there are more than one acceptable approaches to the interpretation of its territorial jurisdiction. For example, in the absence of a provision in the Statute to that effect, should the Court decide that it is barred from ‘reading’ in Article 12(2)(a) objective territorial jurisdiction, relying on the principle of legality? In particular, could the Court consider that such an interpretation (a) is not ‘written’ law and (b) in any event, in case of ambiguity, the Court should select that interpretation which is more favourable to the accused, as required by the principle of legality and in dubio pro reo?31 In this sense, does lex (in the nullum crimen nulla poena sine lege scripta/certa/praevia/stricta) include also the provisions on the territorial jurisdiction of the Court? First and foremost, from the perspective of the Rome Statute, Articles 22–24 provide that the principle of legality is applicable insofar as ‘the conduct in question’, ‘[t]he definition of a crime’ and the ‘conduct’ are concerned.32 It has been suggested that the wording of Article 22 is precise enough to leave open the question of the application of strict interpretation to other provisions of the Statute.33 Furthermore, the Court, in the Bemba Confirmation of Charges Decision, has ruled that in dubio pro reo is a component of the presumption of innocence, ‘which as a general principle in criminal procedure applies, mutatis mutandis, to all stages of the proceedings, including the pre-trial stage.’34 This may be construed to imply that Article 22(2) of the Statute, which ‘fully embraces the general principle of interpretation in dubio pro reo’,35 might be equally applicable in proceedings relating to territorial jurisdiction. Finally, the preparatory works of Article 22 are not particularly helpful. While the relevant reports suggest that the drafters considered the principle of legality mostly as regards the definitions of crimes, there were also discussions on the need to clearly define certain important rules of procedure and evidence.36 31 32 33 34

35 36

See Art. 22(2) of the Rome Statute. Ibid., at Art. 22(1) and (2) and Art. 24(1) of the Rome Statute, respectively. W.A. Schabas, An Introduction to the International Criminal Court (4th edn, Cambridge University Press, 2011), 214–216. Prosecutor v. Jean-Pierre Bemba Gombo (Decision pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor against Jean-Pierre Bemba Gombo) ICC-01/05–01/08 (15 June 2009), para. 31. Al-Bashir Arrest Warrant Decision, above n. 15, para. 156. Compare the International Law Commission’s original formulation under Art. 39(a) in the ILC, ‘Draft Statute for an International Criminal Court’, in Report of the International Law Commission on the Work of its Forty-Sixth Session (2 May–22 July 1994), UNGAOR, 49th Sess., Suppl. No. 10, UN Doc. A/149/10 (1994); and the Commentary provided in

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Ultimately, this argument does not seem convincing. To date, the Court has used the principle of legality for the determination of the substantive law of the Statute. This was highlighted in Lubanga, when the Court stated that ‘[a]ccordingly, there is no infringement of the principle of legality if the Chamber exercises its power to decide whether Thomas Lubanga Dyilo ought to be committed for trial on the basis of written (lex scripta) pre-existing criminal norms approved by the States Parties to the Rome Statute (lex praevia), defining prohibited conduct and setting out the related sentence (lex certa), which cannot be interpreted by analogy in malam partem (lex scripta)’.37 This position is supported by academic commentary,38 as well as by Judge Uˇsacka’s Dissenting Opinion in the AlBashir Arrest Warrant Decision.39 Particularly as far as the preconditions to the exercise of jurisdiction of the Court are concerned, it has been noted that ‘[n]ullum crimen sine lege as formulated in the Rome Statute has no bearing on the preconditions to the exercise of jurisdiction, nor on issues of admissibility’.40

37 38

39 40

the same report, 113–114, Art. 39, paras. 2, 4, which delimited clearly the application of the principle to the definitions of crimes with the UNGA, ‘Report of the Ad Hoc Committee on the Establishment of an International Criminal Court’, UNGAOR, 50th Sess. Suppl. No. 22, UN Doc. A/50/22 (6 September 1995), 10, 12, paras. 52, 57 and the 1996 Preparatory Committee Report, at 13, 41, 42, paras. 52, 180, 185; further, B. Broomhall, ‘Article 22’, in Triffterer (ed.), Commentary on the Rome Statute, above n. 16, 715–16. Lubanga Confirmation Decision, above n. 9, para. 303. S. Lamb, ‘Nullum Crimen, Nulla Poena Sine Lege in International Criminal Law’, in Cassese et al. (eds.), The Rome Statute of the ICC, above n. 16, 749–756, 751; G. Werle, Principles of International Criminal Law (2nd edn., The Hague: TMC Asser Press, 2009), 37–38; M. Boot, Nullum Crimen Sine Lege and the Subject Matter Jurisdiction of the International Criminal Court: Genocide, Crimes Against Humanity, War Crimes (Antwerp: Intersentia, 2002) 374–375; R. Cryer et al., An Introduction to International Criminal Law and Procedure (2nd edn, Cambridge University Press, 2010), 20; H. Ol´asolo, ‘A Note on the Evolution of the Principle of Legality in International Criminal Law’, Criminal Law Forum, 18 (2007), 303, 308–313. For doubts on the precise scope of Art. 22, E. van Sliedregt, The Criminal Responsibility of Individuals for Violations of International Humanitarian Law (The Hague: TMC Asser Press, 2003), 56, 66, ‘Article 22 of the ICC Statute does not relate to [modes of] criminal responsibility but to crimes’, with further references; M. Catenacci, ‘The Principle of Legality’, in F. Lattanzi and W. Schabas (eds.), Essays on the Rome Statute of the International Criminal Court, vol. 2 (Ripa Fagnano Alto: Sirente, 2004), 96, ‘The prohibition [of analogy] applies only to interpretation of those specific phrases in which criminal conduct is defined’; further, A. Cassese, International Criminal Law (2nd edn, Oxford University Press, 2008), 36. Al-Bashir Arrest Warrant Decision (Separate and Partly Dissenting Opinion of Judge Anita Uˇsacka), above n. 15, 9, para. 18. Boot, Nullum Crimen Sine Lege, above n. 38, at 378–379.

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From the perspective of general international law, it seems clear that, at least insofar as the interpretation of territorial jurisdiction is concerned, the principle of legality does not apply. National courts have made farreaching interpretations of territorial jurisdiction from generally worded provisions without objections based on the principle of legality.41 This conclusion is further supported by the retroactive application of extradition treaties and national practice on the matter going back to the 1800s.42 In very few cases,43 national courts occasionally refused to exercise universal jursdiction retroactively,44 due to the position that jurisdiction forms part of substantive criminal law45 and the consequential application of national variants of the principle of legality.46 This case-law is not useful for present purposes. It does not deal with territorial jurisdiction, but with 41

42

43

44 45

46

Indicatively, for Art. 3 of the Belgian Code P´enal, C. Hennau and J. Verhaegen, Droit P´enal G´en´eral (3me e´ dn, Brusselles: Bruylant, 2003), 76–79; for Article 2 of the Criminal Code of the Republic of Korea, G.O.W. Mueller (ed.), The Korean Criminal Code (South Hackensack, NJ: Rothman, 1960), 33; for Art. 2 of the Dutch Penal Code, G. van den Heuvel et al. (eds.), The Dutch Penal Code (Littleton, CO: Rothman, 1997), 35 and C. Ryngaert, ‘Territorial Jurisdiction over Cross-Frontier Offences: Revisiting a Classic Problem of International Criminal Law’, International Criminal Law Review, 9(1) (2009), 200–202. J.H.W. Verzijl, International Law in Historical Perspective (Leiden: Sijthoff, 1972), Part 5, 327–328; B. Swart and A. Klip (eds.), International Criminal Law in the Netherlands (Freiburg: Edition Iuscrim, 1997) 92; M.C. Bassiouni, International Extradition: United States Law and Practice (5th edn, New York: Oceana, 2007), 748. Further on Art. 28 VCLT, F. Dopagne, ‘Convention de Vienne de 1969 – Article 28 – Non-r´etroactivit´e des Trait´es’, in O. Corten and P. Klein (dir.), Les Conventions de Vienne sur le Droit des Trait´es: Commentaire Article par Article (Brussels: Bruylant, 2006), vol. 2, 1181–1182; A. Aust, Modern Treaty Law and Practice (2nd edn, Cambridge University Press, 2007), 176; A. Chua and R. Hardcastle, ‘Retroactive Application of Treaties Revisited: Bosnia Herzegovina v. Yugoslavia’, Netherlands International Law Review, 44 (1997), 415. R. v. Finta, Canada, [1989] 82 ILR 425, Judgment (High Court of Justice); R. v. Finta, [1992] 98 ILR 520, Judgment (Can. Ont. CA); R. v. Finta, [1994] 104 ILR 284, Judgment (SCC). R. Wijngaarde and R.A. Hoost v. Desir´e Delano Bouterse, Court of Appeal of Amsterdam (20 November 2000), Netherlands Yearbook of International Law, 32 (2001), 266; ibid. Appeal in Cassation in the Interests of the Law, Supreme Court of the Netherlands (18 September 2001), reported by L. Zegveld in Netherlands Yearbook of International Law, 32 (2001), 282; Erdal v. Council of Ministers, Arbitragehof [Constitutional Court], Decision No. 73/2005, Oxford Reports on International Law in Domestic Courts, ILDC 9 (BE 2005) (20 April 2005) (Belg.). This happened in the Bouterse and Erdal Cases, above n. 43. Erdal Case, above n. 43, para. B7, and Report by Cedric Ryngaert, ibid., para. A1. This was supported in earlier literature by J. J. E. Schutte, ‘Enforcement Measures in International Criminal Law’, Revue International de Droit P´enal, 52 (1981), 451. Bouterse (Supreme Court), above n. 43, 286, 292–293, paras. 4.1–4.4.

4.3 rome statute’s rules of interpretation

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universal jurisdiction, which seems to operate as a ‘last-resort’ rule of state jurisdiction.47 Additionally, national standards established by the principle of legality are arguably different and more extensive than those under international law or the Rome Statute.48 Finally, the rulings were also heavily influenced by the applicable formulation of the offence under national law and the relationship of the judge and the jury under national procedural law.49 Even in cases of universal jurisdiction, however, the position is not uniform. In the United Kingdom, for example, the War Crimes Act 1991 provided for universal jurisdiction for Second World War crimes.50 In any event, the situation seems clearer today, following the 2012 decision of the ICJ in the Jurisdictional Immunities Case.51 The Court explained that rules of immunity are procedural in character and do not bear upon the guilt or innocence of the accused. ‘That is why the application of the contemporary law of State immunity to proceedings concerning events which occurred in 1943–1945 does not infringe the principle that law should not be applied retrospectively to determine 47

48

49 50

51

Institute of International Law, ‘Universal Criminal Jurisdiction with Respect to the Crime of Genocide, Crimes against Humanity and War Crimes’, Resolution, Seventh Commission, Session de Cracovie, 71-II AIDI 297 (2006) (Rapporteur: C. Tomuschat); ibid., per Orrega Vicu˜na, 212–213; ibid., per Santiago Torrez Bern´andez, at 229–230. Further, E. S. Kobrick, ‘Ex Post Facto Prohibition and the Exercise of Universal Jurisdiction over International Crimes’, Columbia Law Review, 87(7) (1987), 1524–1535. F.O. Raimondo, General Principles of Law in the Decisions of International Criminal Courts and Tribunals (Amsterdam: UvA, 2007) 107–108, 111–114; M.C. Bassiouni, ‘Principles of Legality in International and Comparative Criminal Law’, in M.C. Bassiouni (ed.), International Criminal Law (3rd edn, Leiden: Martinus Nijhoff, 2008), vol. I, 88; L.N. Sadat, The International Criminal Court and the Transformation of International Law: Justice for the New Millennium (Ardsley, NY: Transnational, 2002) 181–182, Broomhall, ‘Article 22’, above n. 36, at 717–720; H. Ol`asolo, ‘A Note on the Evolution of the Principle of Legality in International Criminal Law’, Criminal Law Forum, 18 (2007), 303; ICTY, Prosecutor v. Zejnil Delali´c et al. (Celebici) (Judgement) IT-96–21 (16 November 1998), para. 405. Canadian Criminal Code, S. 7(3.71); R. v. Finta, [1992], above n. 43, 526, 528–529. Further, R. v. Finta, [1994], above n. 43, at 310–311, per LaForest J., dissenting. R. Higgins, ‘Time and the Law: International Perspective on an Old Problem’, International and Comparative Law Quarterly, 46(3) (1997), 509; A.T. Richardson, ‘War Crimes Act 1991’, Modern Law Review, 55 (1992), 76–78; C. Greenwood, ‘The United Kingdom War Crimes Act 1991’, in C. Greenwood, Essays on War in International Law (London: Cameron May, 2006), 435–455. The first case of implementation was Sawoniuk v. United Kingdom (App. No. 63716/00) ECHR 2001-III, 29 May 2001. Jurisdictional Immunities of the State (Germany v. Italy, Greece Intervening) [2012] ICJ Rep. 1, paras. 58, 93.

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matters of legality and responsibility.’52 Considering therefore that immunity is short-hand for immunity from jurisdiction,53 it would seem that in the opinion of the ICJ both rules on jurisdiction and rules on immunity from jurisdiction are procedural in nature, and can be applied retrospectively. Finally, from the point of view of international human rights law, there is limited case-law. With the exception of extradition,54 State jurisdiction in international law is usually interpreted from the perspective of State rights and obligations.55 Moreover, human rights interpretations of jurisdictional provisions are rare and incidental, since individuals lack standing to directly challenge the jurisdiction of the forum State under human rights treaties.56 None of the human rights treaties specifically provide for a right to be tried by the territorial State or State of nationality.57 Human rights law has touched upon claims of violation of national rules of jurisdiction under the right to a fair trial or a justified deprivation of liberty, rather than in light of the strict principle of legality. In this context, the ECtHR has explained that ‘[i]f a tribunal does not have jurisdiction to try a defendant, in accordance with the provisions applicable under domestic law, it is not “established by law” within the meaning of Article 6 §1’.58 As long as the basic organizational framework is laid down by law, human rights monitoring organs allow for a wide margin of interpretation of jurisdictional rules, subject only to considerations of ‘reasonableness’.59

52 53

54

55 56 57

58 59

Ibid., para. 93. Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium) (Judgment) [2002] ICJ Rep. 3; ibid. (Joint Separate Opinion of Judges Kooijmans, Buergenthal and Higgins) [2002] ICJ Rep. 3, 64, paras. 3–5. J. Dugard and C. van den Wyngaert, ‘Reconciling Extradition with Human Rights’, American Journal of International Law, 92(2) (1998), 187–212; A. Alam, ‘Extradition and Human Rights’, Indian Journal of International Law, 48(1) (2008), 87–104. L. Reydams, Universal Jurisdiction: International and Municipal Legal Perspectives (Oxford University Press, 2003), 16–17. Ibid., 17. Ibid. Compare Art. 66 of the Geneva Convention IV, which provides for the obligation of the occupying power to try and incarcerate civilians of the occupied territory within that territory as a ‘safeguard of the outmost value’. Jean Pictet, Commentary on Geneva Convention IV (Geneva: ICRC, 1958), 340–341. Further, Chapter 7. Jorgic v. Germany (App. No. 74613/01) ECHR (July 12, 2007), para. 64. In detail, below Section 5.5.3. Indicatively, Co¨eme et al. v. Belgium (App. Nos. 32492/96, 32547/96, 32548/96 and 33209/96, 33210/96) 2000-VIII ECHR 75 (Judgment of 22 June 2000), para. 98; Sokurenko and Strygun v. Ukraine (App. Nos. 29458/04, 29465/04) ECHR (Judgment of 20 July 2006), paras. 23–25.

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4.4 Interpretation of the Rome Statute in accordance with the legal nature of the provision As demonstrated above, both national courts and the ICJ have proceeded to decide the question of the application of the principle of legality with reference also to the legal nature of the provision under interpretation. A separate yet intertwined issue therefore is the legal nature of Article 12(2)(a). It has been frequently underlined that the Rome Statute is a unique international instrument, in that it combines in a single text the constitution of an international organization, a criminal code and a code of criminal procedure.60 The Rome Statute seems to support this contention by providing in Articles 121 and 122 for different amendment procedures, depending on whether the provision under consideration is of an ‘exclusively institutional character’ or not.61 Arguably, this indicates that each provision should be interpreted by recourse to different rules of interpretation drawn from the VCLT and the Statute, taking into account the provision’s specific legal nature, as a substantive criminal law provision, a criminal procedure rule or a provision regarding the constitution of the Court.62 Thus, for example, rules relating to the organization of the Court would be arguably better addressed through a more teleological interpretation.63 On the other hand, substantive criminal law rules would 60

61 62

63

Pellet, ‘Applicable Law’, above n. 16, at 1054–1055; Verhoeven, ‘Article 21 of the Rome Statute’, above n. 16, at 15; M.H. Arsanjani and W.M. Reisman, ‘The Law-in-Action of the International Criminal Court’, American Journal of International Law, 99(2) (2005), 389. Note in particular the more ‘flexible’ mechanism – as to the seven-year time limit at least – reserved in Art. 122 for provisions ‘of an exclusively institutional nature’. In that direction, Verhoeven, ‘Article 21 of the Rome Statute’, above n. 16, 15; K.A.A. Khan et al. (eds.), Archbold: International Criminal Courts. Practice, Procedure and Evidence (3rd edn, London: Sweet & Maxwell, 2009), 154–155. Indicatively, Legality of the Use by a State of Nuclear Weapons in Armed Conflict (Advisory Opinion) [1996] ICJ Rep. 66, 74–75, para. 19; ibid. at 148, Judge Weeramantry’s Dissenting Opinion. From the literature, with extensive analysis of the case-law, T. Sato, Evolving Constitutions of International Organizations: A Critical Analysis of the Interpretative Framework of the Constituent Instruments of International Organizations (The Hague: Kluwer Law International, 1996), 39–155; H.G. Schermers and N.M. Blokker, International Institutional Law: Unity Within Diversity (5th edn, Leiden: Martinus Nijhoff, 2011), 842–848; C.F. Amerasinghe, Principles of the Institutional Law of International Organizations (2nd edn, Cambridge University Press, 2005), 45–49; J.A.M. Klabbers, An Introduction to International Institutional Law (2nd edn, Cambridge University Press, 2009), 86–90; From earlier studies, D. Simon, L’Interpr´etation Judiciaire des Trait´es d’Organisations Internationales (Paris: A. Pedone, 1981).

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be more appropriately approached with due respect to the principle of legality and the rule of strict interpretation.64 The inherent danger in this exercise would be to err in the classification of the provisions, the exact nature and function of which may not be always clear or, in any event, may be subjected to different (nationally inspired) perspectives. Therefore, one may construe, for example, the Statute’s provision on territorial jurisdiction to constitute part and parcel of the constitution of the Court or one of criminal procedure,65 and therefore to be more suitable perhaps for teleological interpretation. Others, however, may actually consider it as a substantive criminal law provision and subject to interpretation under the principle of legality.66 Additionally, the multiple roles, which provisions on territorial jurisdiction are expected to perform in the context of any criminal codification, do not clarify the situation.67 These primarily theoretical concerns stem from an apparent desire to classify and thus render more foreseeable the means (and outcomes) of an interpretative process. The Court, however, does not seem to adhere to any rigid standard of distinction between the rules of the Rome Statute and their respective content or their classification as procedural, substantive or organizational. Accordingly, although it seems clear that Article 12(2)(a) is a procedural/constitutional provision in the Court’s system, the issue of its precise legal nature will not be awarded decisive importance in the present analysis.

4.5 Conclusion The ICC is the key – judicial – organ of an international organization created on the basis of the Rome Statute. As such, a certain degree of eclecticism is to be expected in its methods of interpretation. This is hardly a novel or troubling prospect. As for the novelty, international organizations practice indicates that the desired result often underpins the selection of the means of interpretation.68 With regard to the 64 65 66 67

68

On this matter generally, Boot, Nullum Crimen Sine Lege, above n. 38, 365. For this classification, Pellet, ‘Applicable Law’, above n. 16, 1055. Further, Jurisdictional Immunities of the State Case, above n. 51, para. 93. In detail, Section 4.3.2. particularly as regards the Erdal Case. O. Tr¨askman, ‘Provisions on Jurisdiction in Criminal Law: The Reform of Law caught in the Tension between Tradition and Dynamism’, in R. Lahti and K. Nuotio (eds.), Criminal Law Theory in Transition: Finnish and Comparative Perspectives (Finnish Lawyers’ Pub. Co, 1992), 511. Schermers and Blokker, International Institutional Law, above n. 63, 872; Sato, Evolving Constitutions of International Organizations, above n. 63, 154–155; Archbold, International

4.5 conclusion

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‘troubling’ aspect of such fluctuation, Article 12(2)(a) ICC Statute is a provision difficult to interpret. It presents complex legal issues of both criminal and public international law. The Statute is silent on its precise meaning. As a result, this provision brings to the forefront a potential tension between State interests, usually camouflaged as claims of sovereignty, and individual interests, be they of the defence or of the victims. In order to effectively address such complicated and original issues, it is only reasonable that the Court should retain for itself an arsenal of interpretative ammunition as diverse and flexible as possible. This is all the more important, considering that, absent a Security Council referral, its effective operation depends heavily on State consent.69 How should one therefore approach the issue of interpretation of Article 12(2)(a)? It may be argued that the Court should adopt a restrictive approach to its interpretation, for a number of reasons.70 First, the drafters, through the meticulous treatment of the documents regulating the operation of the Court, are said to have left ‘as little opportunity as possible for later judicial interpretation’, thus demonstrating their intention in that direction.71 Secondly, a ‘contextual and policy-oriented hermeneutic’ may violate the legality principle and the non-retroactivity of criminal law.72 Thirdly, this approach arguably conforms with the objects and purposes of the Statute in general and the principle of complementarity in particular.73

69

70

71

72 73

Criminal Courts, above n. 62, 154–155, with further references to the case-law; from the jurisprudence, ICTY, Prosecutor v. Delali´c et al. (Celebici) (Judgement) IT-96–21-T (16 November 1998), paras. 158–170. P. Kirsch, ‘The Role of the International Criminal Court in Enforcing International Criminal Law’, in C. Ku and P.F. Diehl (eds.), International Law: Classic and Contemporary Readings (3rd edn, Boulder, CO: Lynne Rienner, 2009), 242. Further, E. David, ‘La Cour P´enale Internationale’, Recueil des Cours de l’Acad´emie de Droit International, 313 (2005), 358. Arsanjani and Reisman, ‘The Law-in-Action of the International Criminal Court’, above n. 60, 385. While the authors deal in their article mostly with admissibility, it is submitted that the same concerns/arguments could be used mutatis mutandis for jurisdiction. Arsanjani and Reisman, ‘The Law-in-Action of the International Criminal Court’, above n. 60, 389; Hunt, ‘The International Criminal Court’, above n. 8, 61; A. Cassese, ‘The Statute of the International Criminal Court: Some Preliminary Reflections’, European Journal of International Law, 10 (1999), 163; R. Clark, ‘The Mental Element in International Criminal Law: The Rome Statute of the International Criminal Law Court and the Elements of Offences’, Criminal Law Forum, 12(3) (2001), 298, n. 24; Pellet, ‘Applicable Law’, above n. 16, 1061; David, ‘La Cour P´enale Internationale’, above n. 69, 339, 348. Arsanjani and Reisman, ‘The Law-in-Action of the International Criminal Court’, above n. 60, at 389. Further, below, Section 4.3.2.2. Mbarushimana Decision on Jurisdiction, above n. 11.

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Although these arguments are certainly not without some merit, their validity remains to be tested. In any event, one could always reply, first, that the intention of the drafters is to be deduced primarily from the text of the treaty74 rather than allude to the overall intent surrounding the circumstances of conclusion of international agreements.75 In fact, there are currently in force 128 articles in the Statute, 225 rules of procedure and evidence, 126 regulations of the Court and 50 pages of Elements of Crimes,76 adopted with the agreement of all States Parties (and even nonParties at the Rome Conference) to one or another degree.77 Therefore, should a provision be drafted in such a manner so as to leave certain leeway for extensive judicial interpretation, the Court would be entitled to legitimately presume that, if the drafters wished to further curtail the Court’s authority in this respect, they would have explicitly done so.78 Secondly, the principle of legality is not applicable to the interpretation of territorial jurisdiction.79 The wording of the Statute, as well as general State practice, human rights decisions and international case-law all point to that direction. Article 21(3) may allow for consideration of the right to a fair trial in this context, but it does not require that jurisdiction or its interpretations are predictable to the suspect. Last, but not least, a more expansive interpretation would seem more in line with the purposes of the Statute. The Court functions, in order to ensure that ‘the most serious crimes of concern to the international 74

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International Law Commission, Commentary on the Articles on the Law of Treaties, Report of the International Law Commission to the General Assembly, Yearbook of the International Law Commission, vol. II (1966), 220, para. 11. For the discussion between volont´e d´eclar´ee and volont´e r´eelle, J. M. Sorel, ‘Article 31 – Convention de 1969’, in Corten and Klein (dir.), Les Conventions de Vienne sur le Droit des Trait´es: Commentaire, above n. 42, 1297, 1301. Such intent could arguably be used when examining preparatory works, as supplementary means of interpretation. See Chapter 3. Once the Kampala amendments take effect, the numbers become 131 articles of the Statute, 225 rules of procedure and evidence, 126 regulations of the Court and 51 pages of Elements of Crimes. In detail, R.S. Clark, ‘Amendments to the Rome Statute of the International Criminal Court Considered at the First Review Conference of the Court, Kampala, 31 May–11 June 2010’, G¨ottingen Journal of International Law, 2 (2010), 689–711. See, the Rome Statute, above n. 13, Art. 51 (RPE), 52 (Regulations), and 9 (Elements) for the respective consent requirements. For this line of reasoning on issues of admissibility, see in the Situation in the Democratic Republic of the Congo (Judgment on the Prosecutor’s Appeal against the Decision of the Pre-Trial Chamber I entitled ‘Decision on the Prosecutor’s Application for Warrants of Arrest, Article 58’) ICC-04–01–169 (13 July 2006) (hereinafter, Lubanga Arrest Warrant Appeal), para. 79. See Section 5.5.3 in detail.

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community as a whole must not go unpunished’.80 At the same time, its role is also geared towards preventing or deterring future atrocities.81 This discussion may continue interminably, without too much practical effect, absent a clear determination by the Court.82 Notwithstanding the controversial Mbarushimana approach,83 up to date the interpretation of the Court’s territorial jurisdiction may hardly be said to have been at the forefront of its jurisprudence. This surprising development84 should be probably attributed to the practice of ‘self-referrals’,85 namely the Prosecutor’s policy of ‘inviting and welcoming voluntary referrals by territorial states as a first step in triggering the jurisdiction of the Court’.86 Ultimately, the ICC is a Court dedicated to the prevention and punishment of some of the worst crimes imaginable. In order therefore to ‘enable the system to . . . attain its appropriate effects, while preventing any restrictions of interpretation that would render the provisions of the treaty inoperative (emphasis in the original)’,87 the Court’s purposes should receive their proper place in the interpretation of Article 12(2)(a). As the Tadi´c Appeals Chamber noted, ‘[b]orders should not be used as a shield against the reach of law and as a protection for those who trample underfoot the most elementary rights of humanity.’88 80 81 82 83 84 85

86 87 88

The Rome Statute, above n. 13, Preamble, para. 4. Lubanga Arrest Warrant Appeal, above n. 78, at para. 75. The Court’s jurisprudence on jurisdictional challenges is discussed in detail in Chapter 8. See Section 6.3.7. E. La Haye, War Crimes in Internal Armed Conflicts (Cambridge University Press, 2008), 343. The problems of self-referrals are extensively reviewed and criticised in the literature. Indicatively, C. Kress, ‘“Self-Referrals” and “Waivers of Complementarity”: Some Considerations in Law and Policy’, Journal of International Criminal Justice, 2 (2004), 944; P. Gaeta, ‘Is the Practice of “Self-Referrals” a Sound Start for the ICC?’, Journal of International Criminal Justice, 2 (2004), 949; G. Gaja, ‘Issues of Admissibility in Cases of SelfReferrals’, in M. Politi and F. Gioia (eds.), The International Criminal Court and National Jurisdictions (Aldershot: Ashgate, 2008), 49; W. Schabas, ‘Prosecutorial Discretion v. Judicial Activism at the International Criminal Court’, Journal of International Criminal Justice, 6(4) (2008), 749, 753 and Comments thereto of K. Roth, ‘Discussion – Court from the Lobby: An NGO View’, Journal of International Criminal Justice, 6(4) (2008), 764–765; M. Rishmawi, ‘The ICC viewed from the Office of the High Commissioner for Human Rights’, Journal of International Criminal Justice, 6 (2008), 775–776. ICC Office of the Prosecutor, Report on the Activities Performed During the First Three Years (June 2003–June 2006) (12 September 2006), 7. Prosecutor v. Jean-Pierre Bemba Gombo (Decision Adjourning the Hearing pursuant to Article 67(7)(c)(ii) of the Rome Statute) ICC-01/05–01/08 (3 March 2009). ICTY, Prosecutor v. Duˇsko Tadi´c (Decision on Defence Motion for Interlocutory Appeal on Jurisdiction) IT-94–1-I (2 October 1995), para. 328. A. Zahar and G. Sluiter, International Criminal Law (Oxford University Press, 2008), 328, criticise this statement as akin to a human rights NGO manifesto.

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Bearing in mind these preliminary observations, the main instruments of interpretation of Article 12(2)(a) Statute include Article 31 of the VCLT, as encapsulated in the Court’s ‘authentic guide’, Article 21(3) and the preparatory works of the Statute. These instruments will guide the present attempt to elucidate the meaning of Article 12(2)(a) of the Rome Statute.

5 ‘The conduct in question’

5.1 Introduction The next chapter will turn to the substantive analysis of Article 12(2)(a) of the Rome Statute. This will involve an examination of the possible extensions of the Court’s territorial reach through the constructive localization of criminal activity or the extension of the territorial scope of application of the Statute. The exercise will be performed in two analytical units, in keeping with the structure of the provision. The first unit relates to the interpretation of ‘the conduct in question’. It will be developed Chapters 5 and 6 through the localization of criminal activity using objective territoriality (Chapter 5) and the effects doctrine (Chapter 6). The second unit relates to the analysis of the terms ‘in the territory of [States Parties]’ and the territorial scope of application of the Statute on conditions of military occupation (Chapter 7).

5.1.1 The problem: post-Rome negotiations in the 2008–2009 Aggression Working Group Article 12(2)(a) provides for the Court’s jurisdiction in cases of state referral or prosecutorial proprio motu action, when ‘the conduct in question’ occurs in State Party territory. The meaning of this sentence is puzzling. It offers no indication whether, for example, the ‘conduct in question’ is present in State Party territory when missiles traverse State Party air space, after their launch from a State not Party’s ship and prior to their detonation in another State not Party’s territory, resulting in thousands of civilian casualties there.1 1

M. Wagner, ‘The ICC and its Jurisdiction: Myths, Misperceptions and Realities’, Max Planck Yearbook of United National Law, 7 (2004), 485; W. Schabas, The International Criminal Court: A Commentary on the Rome Statute (Oxford University Press, 2010), 285; for the legal definition of transit state, see Art. 1(u) of Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, Vienna, 20 December 1988, entered into force 11 November 1990, 28 ILM 493 (1989); Art. 1(e) of Convention on the Safety of United Nations and Associated Personnel, UN Doc. A/49/749, (9 December 1994).

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The situation is law may be equally intriguing, when the main crime takes place in the territory of a State not Party, whereas the acts of assistance, aiding, abetting, or preparatory acts take place within the territory of a State Party. That would be the case when the funds (or the purchase of weapons) used to assist in the performance of crimes within the territory of States not Parties are made available via Switzerland or Liechtenstein, for example. In such circumstances, are such acts enough to assert the Court’s jurisdiction under Article 12(2)(a) on the basis of objective territoriality and constructive localization, so as to prosecute third-State nationals on charges of war crimes, crimes against humanity or genocide committed mainly within the territory of a State not Party? In these jurisdictionally challenging situations, what is the Court’s reach under Article 12(2)(a) ICC Statute? From a policy perspective, it is easy to see why the need to ensure the Statute’s effectiveness in the face of technological advancements in remote weapons delivery systems and electronic transactions would outweigh the risk of jurisdictional conflicts and complementarity complications; to accept otherwise would just leave too large a loophole in the Court’s jurisdictional scheme and foster impunity.2 From a legal perspective, however, one can easily envisage many jurisdictional objections, such as whether there is one crime or many separate crimes, depending on the mode of liability (i.e. whether the crime can be divided into individual parts on the basis of the connection of the alleged participants to the commission of the crime);3 whether it is a conduct or result crime; whether there is a single, continuous crime or many instantaneous ones;4 whether intent qualifies as a ‘constituent element’ for the commission of a crime, and so on. It is evident that the Statute does not provide clear-cut solutions to these questions, if any at all. 2 3

4

Wagner, ‘The ICC and its Jurisdiction’, above n. 1, 485. The proposition that there is a ‘different crime’ also for the purposes of assessing jurisdiction, depending on the mode of liability employed, is supported by Prosecutor v. Jean-Pierre Bemba Gombo (Decision Adjourning the Hearing pursuant to Article 67(7)(c)(ii) of the Rome Statute) ICC-01/05–01/08 (3 March 2009), paras. 26–27; and Prosecutor v. Omar Hassan Ahmad Al-Bashir (Decision on the Prosecution’s Application for a Warrant of Arrest against Omar Hassan Ahmad Al-Bashir) ICC-02/05–01/09–3 (4 March 2009) (hereinafter, Al-Bashir Arrest Warrant Decision), at 10, para. 27. For a comparison between ICJ and ECHR jurisprudence on the point as regards jurisdiction ratione temporis, R. Higgins, ‘Time and the Law: International Perspective on an Old Problem’, International and Comparative Law Quarterly, 46(3) (1997), 506–507.

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Post-Rome negotiations show that States Parties are not indifferent to such jurisdictional predicaments and their implications. In the November 2008 session of the Assembly of States Parties’ Working Group on the Crime of Aggression, the delegates examined the question of the Court’s jurisdiction under Article 12(2)(a) of the Statute for the crime of aggression. As the Report states, ‘given that the conduct of a leader responsible for the crime of aggression would typically occur on the territory of the aggressor State, the question was raised whether the crime could also be considered to be committed where its consequences were felt, namely the territory of the victim State.’5 When faced with this question, some delegations answered confidently that it did, others considered further legislation necessary on the matter, either through amendments in the Statute or in the Elements of the Crimes, while for other delegations more time was requested to consider the issue.6 The issue was revisited during the February 2009 session of the Working Group, where delegations felt the need to make suggestions, in order to clarify the scope of the provision.7 It was suggested to add text, to the effect that ‘[i]t is understood that the notion of “conduct” in Article 12, paragraph 2(a) of the Statute encompasses both the conduct in question and its consequence.’8 Another proposal provided that ‘[i]t is understood that jurisdiction based on the territoriality principle relates both to the territory in which the conduct itself occurred and the territory in which its consequences occurred’.9 This gathered significant support, although there were also delegations who took the view that the issue was best left for determination by the Court itself.10 Finally, certain delegations in earlier meetings of the Special Working Group underlined that Article 30 of the Statute should also be consulted on the matter.11 5

6 7

8 9 11

ICC, Assembly of States Parties, Report of the Special Working Group on the Crime of Aggression, ICC-ASP/7/20, Annex III, 7th Session of the Assembly of States Parties (14– 22 November 2008), para. 28. Ibid. ICC Assembly of States Parties, Report of the Special Working Group on the Crime of Aggression, ICC-ASP/7/SWGCA/2, 7th Session of the Assembly of States Parties (Second Resumption) (9–13 February 2009), paras. 38–39; ICC Assembly of States Parties, Informal Inter-Sessional Meeting on the Crime of Aggression hosted by the Liechtenstein Institute on Self-Determination, Woodrow Wilson School, at the Princeton Club, New York, from 8 to 10 June 2009, Non-Paper by the Chairman on the Conditions for the Exercise of Jurisdiction, ICC-ASP/8/INF.2 (10 July 2009), para. 5. 7th Session (Second Resumption) of the Assembly of States Parties, above n. 7, para. 38. 10 Ibid., para. 39. Ibid. 7th Session of the Assembly of States Parties, above n. 5, para. 28.

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Ultimately, the negotiators failed to reach a decision and this provision was not amended by the 2010 Review Conference. The only change to the Court’s territorial jurisdiction effected by the Review Conference is reflected in the new Article 15bis. This provides that ‘[i]n respect of a State that is not a party to this Statute, the Court shall not exercise its jurisdiction over the crime of aggression when committed by that State’s nationals or on its territory.’12 Nothing further on the meaning of ‘territory’ was added. In light of the above, there is a marked absence of legislative guidance on the elements that may be used by the Court to determine how little of an international offence need take place or have effect in the territory of a state party to the ICC Statute under international law, before the Court can claim such territorial jurisdiction.13 This question constitutes the main issue of the present chapter.

5.1.2 The doctrinal conditions Since additional legislation is not forthcoming, the Court will have to decide this issue through interpretation. This chapter will demonstrate that two main interpretations are possible as regards the words ‘the conduct in question’. From a stricter perspective, they may be understood as meaning only the reprehensible ‘act or omission’. This would entail that the Court may interpret Article 12(2)(a) to the effect that it has jurisdiction only when the prohibited conduct (as opposed to its consequences) takes place within the territory of a State Party. On the other hand, from a broader perspective, ‘the conduct in question’ may be construed as ‘the crime(s) in question’. This entails that the Court will have jurisdiction under Article 12(2)(a) when any part of the prohibited conduct or its consequences are manifested in the territory of a State party. While both possible outcomes will be fully explored, this chapter concludes that the second – broader – approach is more appropriate, in light of the Court’s purpose and objects, its initial jurisprudence and the prevailing conditions during the drafting of this provision. 12

13

ICC Assembly of States Parties, The Crime of Aggression, Resolution RC/Res.6, 13th Plenary Meeting (11 June 2010), Annex I, Amendments to the Rome Statute of the International Criminal Court on the Crime of Aggression, available at http://www.icc-cpi.int/iccdocs/ asp docs/Resolutions/RC-Res.6-ENG.pdf (last accessed 24 February 2013). G. Gilbert, ‘Crimes sans fronti`eres: Jurisdictional Problems in English Law’, British Yearbook of International Law, 63 (1992), 430.

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Having reached this interim conclusion, the remaining part of this chapter will then turn to the issue of localization of criminal activity and commission in part under localization techniques encountered in state practice. The exercise will be premised on certain important doctrinal conditions, which are outlined below.

5.1.2.1 State territory as connecting link The underlying principle behind the entire analysis is the understanding that under Article 12(2)(a) of the Statute the substantial connecting link between the criminal activity, on the one hand, and the exercise of jurisdiction, on the other, is the territory of a State Party. This approach is informed by Mann’s doctrine on jurisdiction, presented in Chapter 2. Starting from this theoretical premise, although the terms ‘objective territoriality’ or ‘ubiquity’ will be used in accordance with the definitions in Chapter 2, the main perspective will not be to rigidly adhere to specific labelling, but rather to treat all related incidences as formulations of the same phenomenon of ‘qualified territoriality’.14 In this spirit, the emphasis rests on the nexus of the crime in its entirety to the territory, rather than on the location of its beginning or its completion. 5.1.2.2 The inherent power of the Court to decide on its jurisdiction (comp´etence de la comp´etence/kompetenz kompetenz) The power of an international court or tribunal to decide on objections to its jurisdiction has been addressed in recent international jurisprudence15 and scholarly writings.16 14

15 16

Ibid.; as regards the ICC Statute, S. Bourgon, ‘Jurisdiction Ratione Loci’, in A. Cassese et al. (eds.), The Rome Statute of the International Criminal Court: A Commentary (Oxford University Press, 2002) 567; in the same spirit, Wagner, ‘The ICC and its Jurisdiction’, above n. 1, 485. ICTY, Prosecutor v. Duˇsko Tadi´c (Decision on Defence Motion for Interlocutory Appeal on Jurisdiction) IT-94–1-I (2 October 1995), para. 19. Indicatively, P. Gaeta, ‘Inherent Powers of International Tribunals’, in L. C. Vohrah et al., Man’s Inhumanity to Man: Essays on International Law in Honour of Antonio Cassese (The Hague: Kluwer Law International, 2003), 367, 372; C. Brown, ‘The Inherent Powers of International Courts and Tribunals’, British Yearbook of International Law, 76 (2006), 195; C.F. Amerasinghe, Jurisdiction of International Tribunals (The Hague: Kluwer Law International, 2003) 121–163; H. Fox, ‘The Objection to Transfer of Criminal Jurisdiction

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It is uncontroversial that the ICC possesses the power to decide on questions concerning its own jurisdiction.17 This inherent power of the Court exists by virtue of general principles of law and is confirmed expressly in Article 19(1) ICC Statute.18 It is therefore clear that each of Court’s organs, within the scope of the tasks apportioned to it,19 has the power to examine whether the jurisdictional requirements of the Statute are satisfied in any case or potential cases20 before it. Indeed, while the examination of admissibility requirements in ex parte Article 58 proceedings is to be pursued only exceptionally by the Pre-Trial Chambers, on the contrary, jurisdiction should be examined as a matter of course even at that early stage of the proceedings.21 The Court has used this power recently in order to decide the limits of its territorial jurisdiction in the Mbarushimana Case,22 certain questions of jurisdiction as regards time in declarations under Article 12(3) in the Gbagbo

17

18

19

20

21

22

to the UN Tribunal’, International and Comparative Law Quarterly, 46(2) (1997), 435–436; Y. Aksar, Implementing International Humanitarian Law: From the Ad Hoc Tribunals to a Permanent International Criminal Court (London: Routledge, 2004), 36–37; P.-M. Martin, ‘La comp´etence de la comp´etence (`a propos de l’arrˆet Tadi´c, Tribunal p´enal international, chambre d’appel, 2 octobre 1995’, 19e cahier Recueil Dalloz (1996), 158; S. Zappal`a, Human Rights in International Criminal Proceedings (Oxford University Press, 2003), 12–14. C.K. Hall, ‘Article 19’, in O. Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court: Observers’ Notes, Article by Article (2nd edn, Munich: BeckHart-Nomos, 2008), 640; R. Kolb, Droit International P´enal (Brussels: Bruylant, 2008), 248. Prosecutor v. Jean-Pierre Bemba Gombo (Decision pursuant to Article 61 (7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor against Jean-Pierre Bemba Gombo) ICC-01/05–01/08 (15 June 2009) (hereinafter, Bemba Confirmation of Charges Decision), ´ de Luxembourg, Avis du Conseil d’Etat ´ portant sur un projet 10, para. 23; Conseil d’Etat de loi portant approbation du Statut de Rome de la Cour P´enale Internationale, fait a` Rome, le 17 juillet 1998, No. 44.088 Doc. Parl. 4502 (4 May 1999), 2. Generally, Brown, ‘The Inherent Powers of International Courts and Tribunals’, above n. 16, 212–215. Situation in Uganda (Decision on the Prosecutor’s Application that the Pre-Trial Chamber Disregard as Irrelevant the Submission Filed by the Registry on 5 December 2005) ICC02/04–01/05 (9 March 2006), 14, para. 23. Situation in the Republic of Kenya (Decision pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Kenya) ICC-01/09–19 (31 March 2010) (hereinafter, Kenya Authorization Decision), 17–18, 28, paras. 37–39, 64. Situation in the Democratic Republic of the Congo (Judgment on the Prosecutor’s Appeal against the Decision of the Pre-Trial Chamber I entitled ‘Decision on the Prosecutor’s Application for Warrants of Arrest, Article 58’) ICC-04–01–169 (13 July 2006) (hereinafter, Lubanga Arrest Warrant Appeal), paras. 51–52. Prosecutor v. Callixte Mbarushimana (Decision on the ‘Defence Challenge to the Jurisdiction of the Court’) ICC-01/04–01/10–451 (26 October 2011) (hereinafter, Mbarushimana Decision on Jurisdiction), paras. 14 et seq.

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Case,23 and the nature of challenges to the contextual elements of crimes against humanity in the Kenyan cases.24 Therefore, the Court has full authority to decide on challenges to its jurisdiction, in the absence of any specific provision in the Statute to the contrary.25 It is for the Court, and the Court alone, to authoritatively rule on whether Article 12(2)(a) ICC Statute can be interpreted broadly so as to extend the Court’s jurisdiction when a crime is committed in part in State Party territory or has effects there.

5.1.2.3 Interpretation of ICC jurisdiction, delegation of authority and limitations A significant preliminary issue concerning the jurisdiction of the Court under Article 12(2)(a) of the Statute relates to its international legal personality and the nature of its jurisdiction, juxtaposed to that of a State. In short, the argument could be made that the ICC is a typical creature of state consent, in the sense that it was created by means of a multilateral international treaty. As such, the ICC can be conceived as an international organization and a court of limited, attributed jurisdiction premised on state consent.26 Its operation should be seen as one governed by the 23

24

25

26

Prosecutor v. Laurent Koudou Gbagbo (Judgment on the Appeal of Mr Laurent Koudou Gbagbo against the Decision of Pre-Trial Chamber I on Jurisdiction and Stay of Proceedings) ICC-02/11–01/11 (OA 2) (12 December 2012) (hereinafter, Gbagbo Jurisdictional Appeal Decision), paras. 79–82. Prosecutor v. William Samoei Ruto et al. (Decision on the Appeal of Mr William Samoei Ruto and Mr Joshua Arap Sang against the decision of Pre-Trial Chamber II of 23 January 2012 entitled ‘Decision on the Confirmation of Charges pursuant to Article 61(7)(a) and (b) of the Rome Statute’) ICC-01/09–01/11–414 (OA 3 OA 4) (24 May 2012) (hereinafter, Ruto Jurisdictional Appeal decision), paras. 21–28; Prosecutor v. Francis Kirimi Muthaura et al. (Decision on the Appeal of Mr Francis Kirimi Muthaura and Mr Uhuru Muigai Kenyatta against the decision of Pre-Trial Chamber II of 23 January 2012 Entitled ‘Decision on the Confirmation of Charges pursuant to Article 61(7)(a) and (b) of the Rome Statute’) ICC-01/09–02/11–425 (OA 4) (24 May 2012) (hereinafter, Muthaura Jurisdictional Appeal decision), paras. 26–36. The best view is that Article 4(2) of the Statute limits only the Court’s implied powers, not its inherent ones; Gaeta, ‘Inherent Powers of International Tribunals’, above n. 16, at 372; F. Martinez, ‘Legal Status and Powers of the Court’, in A. Cassese et al. (eds.), The Rome Statute of the International Criminal Court: A Commentary (Oxford University Press, 2002), 216. D. Donat-Cattin, ‘Decision-Making in the International Criminal Court: Functions of the Assembly of States Parties and Independence of the Judicial Organs’, in F. Lattanzi and W. Schabas (eds.), Essays on the Rome Statute of the International Criminal Court (Ripa Fagnano Alto: Sirente, 2004), vol. II, 70; in general for international courts and tribunals, C.F.

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‘principle of speciality’.27 The Court’s competence should be contrasted with the full powers that states enjoy on the international plane and the corresponding benefits they obtain from the application of the Lotus dictum. Consequently, what is permissible for a State and, by extension, for a national court, as a manifestation of state sovereignty, is not necessarily permissible for an international organization–international court, whose jurisdiction is clearly functional;28 it may be beyond its powers. Admittedly, the ICC is not a ‘super-state’ and indeed its jurisdiction is primarily functional, rather than sovereign. The main doctrine explaining the Court’s existence is the delegation of the corresponding authority by States Parties.29 Within this framework, however, the point is not for the Court to do more than national courts, but rather to be able to do the same – if not less – than those courts, at least in the sense that States always retain the capacity to exercise universal jurisdiction. Under this light, one fails to see why a national court could be in a position to interpret national law on territorial jurisdiction as expansively as, for example, to allow jurisdiction over attempted terrorist attacks intended to take place in State territory, which never materialized,30 whereas the ICC would not. This perspective relies on the Court’s power to decide finally on its jurisdiction, its comp´etence de la comp´etence (or kompetenz kompetenz),

27 28

29

30

Amerasinghe, Jurisdiction of Specific International Tribunals (Leiden: Martinus Nijhoff, 2009), 6–7; further, Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt, Advisory Opinion [1980] ICJ Rep. 104 (Separate Opinion of Judge Gros). Legality of the Use by a State of Nuclear Weapons in Armed Conflict (Advisory Opinion) [1996] ICJ Rep. 78, para. 25. L.N. Sadat, The International Criminal Court and the Transformation of International Law: Justice for the New Millennium (Ardsley, NY: Transnational, 2002), 107–108, for an interesting perspective; I. Bantekas, International Criminal Law (4th edn, Oxford: Hart, 2010), 354, notes, for his part, that the Lotus dictum does not apply to the subject-matter jurisdiction of the Court. S. Williams and W. Schabas, ‘Article 12’, in Triffterer (ed.), Commentary on the Rome Statute, above n. 17, 557; D. Akande, ‘The Jurisdiction of the International Criminal Court over Nationals of Non-Parties: Legal Basis and Limits’, Journal of International Criminal Justice, 1(3) (2003), 625–634; M.P. Scharf, ‘The United States and the International Criminal Court: The ICC’s Jurisdiction over the Nationals of Non-Party States. A Critique of the US position’, Law and Contemporary Problems, 64 (2001), 110–107; contra M. Morris, ‘High Crimes and Misconceptions: The ICC and Non-Party States’, Law and Contemporary Problems, 64 (2001), 43–52; M. Inazumi, ‘The Meaning of the State Consent Precondition in Article 12(2) of the Rome Statute of the International Criminal Court: A Theoretical Analysis of the Source of International Criminal Jurisdiction’, Netherlands International Law Review, 49 (2002), 185. E.g. US v. Yousef, 327 F.3d 56, 112 (2nd Cir., 2003).

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as a power that exists in the Court inherently, rather than as a prerogative arising by delegation of authority from States. Accordingly, objections premised on delegation of authority and the principle of ‘speciality’ are irrelevant, at least insofar as they would attempt to cast doubt on the incidence of a power that the Court already possesses by operation of general principles of law.31 Consequently, the critical issue is not whether one perceives the Court as ‘an “extension” of national jurisdiction, that is an organ performing “internal state activities’”32 and the rationale that States Parties are in a position to do collectively, through the Court, what each one can do individually, through their national courts.33 Equally, it is not important that the legal nature of the Court may be seen as an international organization,34 instead of an ‘extension’ of State courts – a special joint ‘national’ court. On the contrary, it is significant that, irrespective of the underlying doctrinal approach adhered to concerning the Court’s legal nature, its power to interpret finally its Statute stems from its nature as a judicial institution. Accordingly, arguments alleging that the Court is prevented from adopting a certain constructive interpretation of territorial jurisdiction under Article 12(2)(a) ICC Statute on grounds of the distinction between State court/international court, full powers/attributed or express/implied powers and so on are irrelevant. The Court’s judicial function remains its defining characteristic in deciding the limits of its jurisdiction under the rule of territoriality. To conclude, it is submitted that, since the Court possesses the inherent power to determine the reach of its jurisdiction in the same way as any criminal court, its decision on how exactly to apply this power is a matter of interpretation of the Statute. This is not an issue to be decided on 31 32 33

34

Bemba Confirmation of Charges Decision, above n. 18, para. 23. Martinez, ‘Legal Status and Powers of the Court’, above n. 25, 211. Proposal submitted by the German delegation to the Preparatory Committee on the Establishment of an International Criminal Court, UN Doc. A/AC.249/1998/DP.2 (23 March 1998), for the argument of the German delegation for universal jurisdiction; H.-P. Kaul, ‘Preconditions to the Exercise of Jurisdiction’, in Cassese et al. (eds.), The Rome Statute of the International Criminal Court, above n. 14, 587–588; further, Wagner, The ICC and its Jurisdiction, above n. 1, 481; further, International Military Tribunal (Nuremberg), Judgment and Sentences (1 October 1946), reprint. in American Journal of International Law, 41 (1947), 172, 216. See in this respect Art. 4 of the Rome Statute of the International Criminal Court, 7 July 1998 (entered into force 1 July 2002), 2187 UNTS 3; W. R¨uckert, ‘Article 4, Legal Status and Powers of the Court’, in Triffterer (ed.), Commentary on the Rome Statute, above n. 17, 122–123. The different perspectives are summarily discussed by Martinez, ‘Legal Status and Powers of the Court’, above n. 25, at 211–2.

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the premise of limitations of delegation and express–implied powers. As such, the interpretation of Article 12(2)(a) becomes less a question of the Court’s powers or the lack thereof, and more an issue concerning the limits to that interpretation under general international law. It is in this sense that the ensuing analysis will consider the territorial jurisdiction of the ICC as coextensive with the territorial jurisdiction of states parties.35 That does not mean, however – and it is certainly not suggested here – that the Court has a completely free hand when interpreting this provision. It is perfectly conceivable that too extensive an interpretation of the Court may violate international law. For one thing, the Court does not acquire a law-making capacity through its comp´etence de la comp´etence. It does not mean, for example, that the Court may through this inherent power read Article 12(2)(a) in such a way as to apply the rule of universal jurisdiction,36 any more than it can extend its subject-matter jurisdiction to include new crimes beyond those in Articles 5–8 of the Statute.37 For another, this power is further restrained by constitutional limitations included in the Statute38 and particularly the principle of non-intervention, as stipulated in the Preamble of the Rome Statute39 and general international law.40 It is true that the precise content of this chameleonic rule of customary law is difficult to decipher.41 The present work therefore chooses to operate on the basis of the doctrinal position, developed in Mann’s scholarship as interpreted and applied by the Canadian and German Supreme Courts.42 This means that a sufficient connecting link – a reasonable nexus – must be shown to exist between the crime and the territory of a State Party, to justify the 35 36 37 38

39

40 41

42

Lubanga Arrest Warrant Appeal, above n. 21, paras. 31, 41 (Judge Pikis Partly Separate and Partly Dissenting Opinion). Martinez, ‘Legal Status and Powers of the Court’, above n. 25, 212. Bantekas, International Criminal Law, above n. 28, 354. This is inspired by C. L. Blakesley, ‘Jurisdiction Ratione Personae or the Personal Reach of the Court’s Jurisdiction’, in J. Doria et al. (eds.), The Legal Regime of the International Criminal Court: Essays in Honour of Professor Igor Blishchenko (Leiden: Martinus Nijhoff, 2009), 430. The Rome Statute, above n. 34, at Preamble, para. 8, ‘Emphasizing in this connection that nothing in this Statute shall be taken as authorizing any State Party to intervene in an armed conflict or in the internal affairs of any State . . . ’. Generally, for international organizations, Interpretation of Agreement of 25 March 1951 between WHO and Egypt, above n. 26, 89–90, para. 37. Recently, M. Jamnejad and M. Wood, ‘The Principle of Non-Intervention’, Leiden Journal of International Law, 22(2) (2009), 347; also H. D. Wolswijk, ‘Locus Delicti and Criminal Jurisdiction’, Netherlands International Law Review, 66 (1999), 361. See above in detail Section 2.5.

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exercise of jurisdiction by the Court under Article 12(2)(a) and satisfy the requirements of non-intervention.43 It is therefore submitted that, questions of power aside, unless otherwise provided for in the Court’s sources under Article 21(1)(a), the limits to the Court’s jurisdiction under Article 12(2)(a) are to be deduced by recourse to general international law in a way similar to State courts and State jurisdiction. Finally, the constructive interpretation of Article 12(2)(a) should not be confused with the question of the territorial scope of application of the Statute as such. Issues of delegation of authority may have an important role to play in the latter, particularly in situations concerning military occupation of State Party territory. This specific topic is especially important as regards the territorial scope of application of the Statute as such and the coextensive character of the jurisdiction of the Court to that of States Parties. These issues will be properly addressed in Chapter 7 on military occupation.44

5.1.2.4 The usefulness of international law rules In the discussion concerning the localization options of territorial jurisdiction available to the Court under international law and the interpretation of Article 12(2)(a), reference will be made also to rules and principles of international law. Their use is justified by two main reasons. First, under Article 31(3)(c) VCLT, ‘relevant rules of international law applicable in the relations between the parties’ constitute an instrument of interpretation of an international treaty. Therefore, they may be applied also for the interpretation of Article 12(2)(a) of the Rome Statute.45 Secondly, one may take the view that the sources of law enumerated in Article 21(1)(a) are inadequate to address questions of ‘commission in part’ and that accordingly the matter is not ‘exhaustively dealt with’ in these instruments.46 This would indicate the need to look for a solution in other sources of law and particularly rules and principles of general international law.47 43 45

46

47

44 Ibid. Sections 7.3, 7.4. Vienna Convention on the Law of Treaties, Vienna, 23 May 1969 (entered into force 27 January 1980), 1155 UNTS 331; (1969) 8 ILM 679, Art. 31(3)(c). From ICJ jurisprudence on the topic, Oil Platforms Islamic Republic of Iran v. United States of America (Judgment) [2003] ICJ Rep. 161, 182, para. 41. See above Section 4.2.1. Prosecutor v. Thomas Lubanga (Judgment on the Appeal of Lubanga against the Decision on the Defence Challenge to the Jurisdiction of the Court pursuant to Article 19(2)(a) of the Statute of 3 October 2006) ICC-01/04–01/06 (OA 4) (14 December 2006), 18, para. 34. Al-Bashir Arrest Warrant Decision, above n. 3, para. 44; Situation in the Democratic Republic of the Congo (Judgment on the Prosecutor’s Application for Extraordinary Review

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The analysis under Articles 21(1)(b) and 21(1)(c) is employed basically as an argument in the alternative; the primary argument is that issues under Article 12(2)(a) of the Statute may be properly addressed through interpretation. In this context, Article 21(3) has an independent role to play as an instrument of interpretation, whose application is explicitly mandated by the Statute itself. Finally, this analysis lays the necessary groundwork for Chapter 6, where the possibility of interpreting ‘conduct in question’ so as to ‘read’ the effects doctrine in the Court’s jurisdiction will be examined.

5.1.2.5 The usefulness of national law In the context of the present examination of the topic, emphasis will be given to international law, rather than to one specific national law tradition, although references to particular solutions adopted by certain legal orders will be made, where appropriate. This choice is dictated primarily by the wording of Article 21(1)(c) and the hierarchy of sources established in Article 21 ICC Statute.48 This provision refers to ‘general principles of law’, as opposed to a specific national law.49 Use of general principles here will not take the form of a mechanical transplant of national law approaches to territorial jurisdiction.50 For these reasons, national law will be mostly used as State practice for the purposes of customary law. In the alternative, it can be argued that the Rome Statute itself points to a certain national law when it refers to the national law of the State that would ‘normally’ exercise jurisdiction in Article 21(1)(c).51 This situation is not unknown in treaty law.52 Even then, however, recourse to national

48

49 50 51 52

of Pre-Trial Chamber I’s 31 March 2006 Decision Denying Leave to Appeal) ICC-01/04 (13 July 2006) (hereinafter, Extraordinary Review Appeal), para. 39; Prosecutor v. Thomas Lubanga Dyilo (Decision on the Confirmation of Charges) ICC-01/04–01/06–803-tEN (29 January 2007), para. 205. Indicatively, Prosecutor v. Germain Katanga (Decision on the Confirmation of Charges) ICC-01/04–01/07–717 (30 September 2008) (hereinafter, Katanga Confirmation Decision), paras. 505–508. See below in detail, Section 5.5.2. Notably, ICTY, Prosecutor v. Drazen Erdemovi´c (Separate and Dissenting Opinion of Judge Cassese) IT-96–22-A (7 October 1997). For analysis, see below, Section 5.5.2. That is the case for the national security clauses in Mutual Legal Assistance treaties. European Convention on Mutual Assistance in Criminal Matters, 20 April 1959, CETS No. 030, Art. 2(b). Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France) (Judgment) [2008] ICJ Rep. 177, paras. 120–4, for one of the latest discussions of such (self-judging) clauses; further, from the same case, Transcript of 22 January 2008, CR 2008/2, 11 (per Professor Condorelli); Transcript of 25 January 2008, CR 2008/5, 4

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law is possible only to the extent that its application does not absolve a State from the performance of its international obligations altogether53 and subject to requirements of good faith and reasonableness.54 In light of the above, the present work will put emphasis on international law and general principles of national law, in the absence of relevant rules in the Statute, the Rules of Procedure and the Elements of Crimes. Accordingly, the present analysis will refer primarily to international law norms, in order to address the issue of the territorial reach of the Court’s jurisdiction.55

5.2 ‘Conduct in question’ as conduct, including act or omission The proposition that ‘conduct in question’ means ‘act or omission’ in question can find support in different arguments. First, during the Rome negotiations, the last official documents prior to 16 July 1998, referred in Draft Article 7 – which later became Article 12 – to the ‘act or omission in question’.56 Secondly, there is no definition of the term ‘conduct’ (‘comportement’ in the French text, ‘conducta’ in the Spanish text) in the Rome Statute.57 However, its meaning may be deduced from Article 30 of the Statute. This provision refers primarily to the subjective or mental elements of the crimes. It indicates by implication that the ‘material’ or objective

53 54

55 56

57

(per Professor Ascencio). The Rome Statute, above n. 34, Art. 93(4), on national security denials. Vienna Convention, above n. 45, Art. 27. Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France), above n. 52, para. 145, with extensive references to the ICJ’s case-law; for ‘reasonableness’, Application of the Convention of 1902 Governing the Guardianship of Infants (Netherlands v. Sweden) (Separate Opinion of Judge Spender) [1958] ICJ Rep. 121; ibid., 99 (Separate Opinion of Judge Lauterpacht); Rights of Nationals of the United States of America in Morocco (France v. United States of America) (Judgment) [1952] ICJ Rep. 212. For another interesting perspective from the perspective of self-contained system theory, Bantekas, International Criminal Law, above n. 28, 352–354. Bureau Discussion Paper Regarding Part 2, UN Doc. A/CONF.183/C.1/L.53 (6 July 1998), in UN Official Records, Vol. III, 208–209; ‘Bureau Proposal: Regarding Part 2’, UN Doc. A/CONF.183/C.1/L.59 (10 July 1998), in Official Records, vol. III, 212. In detail, above Section 3.4. Draft Article 28 was not adopted in Rome due to the problem of commission by omission, UN Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Report of the Ad Hoc Committee on the Establishment of an International Criminal Court, UN Doc. A/CONF.183/2 (14 April 1998), paras. 54–55 (Article 28 Actus reus (act and/or omission); Report of the Working Group on General Principles of Law, Official Records, UN Doc. A/CONF.183/C.1/WGGP/L.4, 255, n. 60.

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elements of the crimes in the Statute are to be construed as comprising three distinct components; conduct, consequences and circumstances. This construction appears to have been influenced by relevant common law usage.58 In this provision, the term ‘conduct’ was used to avoid ‘the question of the role that omissions would play in the material element. The issue was resolved by replacing “act or omission” with the word “conduct”.’59 Authorities seem to concur that ‘conduct’ in the context of Article 30 is shorthand for ‘act or omission’.60 This reading appears to be further corroborated by the Elements of Crimes,61 which follow faithfully the distinction between conduct, consequences and circumstances in their analysis of each crime.62 That said, some ambiguity as to the meaning of 58

59

60

61

62

R.S. Clark, ‘The Mental Element in International Criminal Law: The Rome Statute of the International Criminal Court and the Elements of Offences’, Criminal Law Forum, 12(3) (2001), 304–307; A. Eser, ‘Mental Elements: Mistake of Fact and Mistake of Law’, in A. Cassese et al. (eds.), The Rome Statute of the International Criminal Court: A Commentary (Oxford University Press, 2002), 911; G.P. Fletcher, The Grammar of Criminal Law: American, Comparative, and International (New York: Oxford University Press, 2007), 107. P. Saland, ‘International Criminal Law Principles’, in R.S. Lee (ed.), The International Criminal Court: The Making of the Rome Statute. Issues, Negotiations, Results (The Hague: Kluwer Law International, 1999) 205. Eser, ‘Mental Elements’, above n. 58, 912; G. Werle, Principles of International Criminal Law (2nd edn, The Hague: T.M.C. Asser Press, 2009), 144; Saland, ‘International Criminal Law Principles’, above n. 59, 195; D.K. Piragoff and D. Robinson, ‘Article 30 – Mental Element’, in O. Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court: Observers’ Notes, Article by Article (2nd edn, Munich: Beck-Hart-Nomos, 2008), 859; G. Werle and F. Jessberger, ‘“Unless Otherwise Provided”: Article 30 of the ICC Statute and the Mental Element of Crimes under International Criminal Law’, Journal of International Criminal Justice, 3 (2005), 39; Clark, ‘The Mental Element in International Criminal Law’, above n. 58, 306; M. Kelt and H. von Hebel, ‘What are Elements of Crimes?’, in R.S. Lee (ed.), The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence (Ardsley, NY: Transnational, 2001). ICC, Elements of Crimes, Assembly of States Parties, 1st sess., 3–10 September 2002, Official Records ICC-ASP/1/3 (part II-B) (9 September 2002); R.S. Clark, ‘Drafting a General Part to a Penal Code: Some Thoughts inspired by the Negotiations on the Rome Statute of the International Criminal Court and by the Court’s First Substantive Law discussion in the Lubanga Dyilo Confirmation Proceedings’, Criminal Law Forum, 19 (2008), 526–527. Compare para. 7 of the General Introduction of the Elements, with para. 9 of the General Introduction, ‘[a] particular conduct may constitute one or more crimes’. Further, W.K. Lietzau, ‘A General Introduction to the General Introduction: Animating Principles behind the Elements of Crimes’, in F. Lattanzi and W. Schabas (eds.), Essays on the Rome Statute of the International Criminal Court (Ripa Fagnano Alto: Sirente, 2004), vol. 2, 299; K. D¨ormann, Elements of War Crimes under the Rome Statute of the International Criminal Court (Cambridge University Press, 2003), 9–14, 13, ‘Paragraph 7 of the General Introduction describes the structure of the EOC document. It has no additional substantive meaning’.

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the term ‘conduct’ still lingered in the negotiations for the Elements of Crimes63 and seems to persist today.64 The same situation existed as regards the contextual elements of crimes, although the Appeals Chamber has offered some clarification recently, at least on the legal nature of the contextual elements of crimes against humanity.65 Thirdly, the wording used in other parts of Article 12 presumably points in that direction as well. In particular, Article 12(2)(a) provides for jurisdiction, if the State of registration of a vessel or aircraft is a State Party, and ‘if the crime was committed on board’ that vessel or aircraft [emphasis added]’. Likewise, paragraph 12(2)(b) refers to ‘the State of which the person accused of the crime is a national’, whereas paragraph 3 refers to an ad hoc acceptance of the Court’s jurisdiction via a declaration lodged by a State not Party ‘with respect to the crime in question [emphasis added].’66 Indeed, it is quite striking that the only instance in Article 12 where reference is made to ‘conduct in question’ is the sentence of the ‘territorial jurisdiction’ clause. This would imply, in an a contrario reading of this provision, that the drafters intended to distinguish between cases involving the exercise of jurisdiction. For ships, aircrafts and ad hoc declarations, the crucial factor would be the ‘crime in question’, whereas insofar as State Party territory is concerned, jurisdiction depends on the basis of the ‘conduct in question’. Consequently, the two terms – conduct and crimes – used in Article 12 could very well be construed as having a different meaning for the purposes of the interpretation of this provision, the alternative being to consider ‘conduct in question’ as referring to ‘act or omission in question’. It is therefore possible that this selection in the wording of Article 12(2)(a) was actually intended to produce certain legal results. This would be in tandem with the intentional selection among the relevant terms in other provisions of the Statute. For example, the otherwise subtle linguistic difference between ‘crimes committed’ and ‘conduct’ in Articles 11(1) and 24(1) and its elaboration in the Elements document for enforced disappearances denote a deeper political compromise. 63 64 65

66

Kelt and von Hebel, ‘What are Elements of Crimes?’, above n. 60, 15, 22. Indicatively, Clark, ‘The Mental Element in International Criminal Law’, above n. 58, 325. Ruto Jurisdictional Appeal decision, above n. 24, paras. 21–28; Muthaura Jurisdictional Appeal decision, above n. 24, paras. 26–36. On the discussions among delegations on the issue, Kelt and von Hebel, ‘What are Elements of Crimes?’, above n. 60, 15. The meaning of ‘crime in question’ has been extended to cover future crimes by the Gbagbo Jurisdictional Appeal Decision, above n. 23, paras. 82–84.

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The intention was apparently to exclude from the Court’s jurisdiction enforced disappearances and continuous crimes that commenced prior to the Statute’s entry into force.67 Correspondingly, when defining the idem in the framework of the principle ne bis in idem in Article 20 of the Rome Statute, the distinction between ‘crime’ and ‘conduct’ has significant legal repercussions. It would seem that if a person is convicted or acquitted by the Court for charges alleging the commission of crimes within its jurisdiction, this does not necessarily prohibit national courts from re-trying the accused for the same conduct, provided that it is not classified and prosecuted as one of the crimes stipulated in Article 5 of the Statute.68 From a similar contextual point of view, the use of the term ‘conduct’ in the chapeau of Article 31 is said to have had serious ramifications, to the extent that it provides that ‘a person shall not be criminally responsible, if, at the time of that person’s conduct’: she or he is mentally unstable, intoxicated, or acting under self-defence or duress. This indicates that the critical time for assessing the existence of a ground precluding responsibility is the time of criminal conduct, not the time of manifestation of the criminal result.69 To sum up, while no definition of ‘conduct’ is included in the Statute, nevertheless there are certain indications as to what the term stands for and particularly as to what the term does not include. In this light, ‘conduct in question’ may be considered as ‘act or omission in question’.

67

68

69

Sadat, The International Criminal Court and the Transformation of International Law, above n. 28, 186. For the view that the question of continuous crimes still remains unresolved as far as crimes other than enforced disappearances are concerned, C. Stahn et al., ‘The International Criminal Court’s Ad Hoc Jurisdiction Revisited’, American Journal of International Law, 99 (2005), 429. C. van den Wyngaert and T. Ongena, ‘Ne bis in idem Principle, Including the Issue of Amnesty’, in Cassese, et al. (eds.), The Rome Statute of the International Criminal Court, above n. 14, 723–724; I. Tallgren and A. R. Coracini, ‘Article 20: Ne bis in idem’, in Triffterer (ed.), Commentary on the Rome Statute, above n. 17, 686–687; from the perspective of general international law, C. van den Wyngaert and G. Stessens, ‘The International Non bis in Idem Principle: Resolving some of the Unanswered Questions’, International and Comparative Law Quarterly, 48(4) (1999), 788–794. A. Eser, ‘Article 31’, in Triffterer (ed.), Commentary on the Rome Statute, above n. 17, 872; K. Ambos, ‘Other Grounds for Excluding Criminal Responsibility’, in Cassese et al. (eds.), The Rome Statute of the International Criminal Court, above n. 14, 1028–9; E. van Sliedregt, The Criminal Responsibility of Individuals for Violations of International Humanitarian Law (The Hague: T.M.C. Asser Press, 2003), 242–243 suggests that this is the critical time also for assessing the grounds in Arts. 32 and 33 of the Rome Statute in the absence of a specific time stipulation therein.

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In this framework, one could argue that ‘[a]n aspect which was not removed from the Rome Statute is the consistently used terminology of “conduct”, which was chosen and generally accepted to denote a criminal act or omission. The term is used systematically in the Rome Statute and throughout the Elements of Crimes drafted on the basis of art. 9 of the Statute.’70 From this perspective, the concept of ‘conduct in question’ is separated from the consequences or the circumstances of a crime. Each one represents a distinct element of the definition of crime. Arguably, if the drafters of the Statute intended all the objective elements of a crime to be included when considering the precondition of territoriality, they would have employed the same language used elsewhere in the same provision, referred to as ‘the crimes in question’ or ‘the crimes committed’ or ‘the crimes charged’. Their selection – unique in Article 12 – of ‘conduct in question’ could therefore be construed as distinctive from the general formulation ‘crimes in question’, thus excluding from consideration the consequences and circumstances of the crime. This would be arguably consistent with the position of some delegations in the Special Working Group for the Crime of Aggression that ‘the drafters of Article 12 intended for it to be consistent with Article 30, which referred to conduct, consequences and circumstances.’71 If one accepts this analysis as valid, the Court would be able to exercise jurisdiction based on the rule of territoriality only if, and to the extent that, the criminal conduct in question, and not the consequences or circumstances thereof, takes place in the territory of a State Party. The danger of such a restrictive approach would be that the occurrence solely of the consequences or the circumstances of the act or omission in question within such territory would therefore not suffice under Article 12(2)(a). Thus, in the absence of a Security Council referral, cases or situations where the conduct took place outside the territory of a State Party (e.g. launching projectiles, shooting, etc.), whereas the consequences of the crime, (e.g death, injury, destruction of property, etc.) took place within such territory, would escape the Court’s territorial jurisdiction. 70 71

M. Duttwiler, ‘Liability for Omission in International Criminal Law’, International Criminal Law Review, 6 (2006), 58. ICC Assembly of States Parties, Report of the Special Working Group on the Crime of Aggression, ICC-ASP/7/20; 7th Session of the Assembly of States Parties, Annex III, (14– 22 November 2008), para. 28. This position does not appear in any of the subsequent documents of the Working Group on the matter.

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5.3 ‘Conduct in question’ as ‘crimes in question’ On the other hand, there are a series of other considerations that should be taken into account when examining this provision. The Court to date has had no difficulty construing ‘conduct in question’ as ‘crimes in question’, although the specific issue has not been contested and therefore no reasoning for this choice seems available. In Mbarushimana, the Court searched for the connection between the ‘crimes’ charged by the Prosecutor and the situation.72 The Lubanga three-pronged test for jurisdiction refers to ‘crimes’ committed in state territory.73 This approach is further corroborated by the Al-Bashir Arrest Warrant Decision,74 as well as the Kenya Authorization Decision75 and authorities.76 This largely unconscious decision of the Chambers to equate ‘conduct in question’ with ‘crimes in question’ may be supported from a textual, contextual and teleological reading of the Statute. The chapeau of Article 12(2) provides that ‘[i]n the case of Article 13, paragraph (a) or (c), the Court may exercise its jurisdiction if one or more of the following States are Parties to this Statute or have accepted the jurisdiction of the Court in accordance with paragraph 3.’ Therefore, when interpreting this provision, one should also consider Article 13, paragraphs (a) and (c) – the trigger mechanisms77 of state referral and Prosecutor’s proprio motu action. This approach would appear warranted also since reference is made to ‘the conduct in question’ in para. 2 (a) of the Article. 72 73

74 75 76 77

Mbarushimana Decision on Jurisdiction, above n. 22, paras. 16–17. Situation in the Democratic Republic of the Congo (Decision on the Application for Participation in the Proceedings of VPRS-1, VPRS-2, VPRS-3, VPRS-4, VPRS-5 and VPRS-6) ICC-01/04 (17 January 2006), para. 85. Al-Bashir Arrest Warrant Decision, above n. 3, para. 36. Kenya Authorization Decision, above n. 20, para. 178. M.C. Bassiouni, Introduction to International Criminal Law (2nd rev. edn, Leiden: Martinus Nijhoff, 2012), 658. On the meaning of the term ‘trigger mechanisms’, F. Lattanzi, ‘Comp´etence de la Cour ´ P´enale Internationale et Consentement des Etats’ , Revue G´en´eral de Droit International Public, 103(2) (1999), 436; P. Kirsch and D. Robinson, ‘Referral by States Parties’, in Cassese et al. (eds.), The Rome Statute of the International Criminal Court, above n. 14, at 619; H. Ol`asolo, ‘The Prosecutor of the ICC before the Initiation of Investigations: A Quasi-Judicial or a Political Body?’, International Criminal Law Review, 3 (2003), 92; G. Turone, ‘Powers and Duties of the Prosecutor’, in Cassese et al. (eds.), The Rome Statute of the International Criminal Court, above n. 14, 1143–1145.

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As evidenced from paragraph (a) of Article 13, as well as Article 14, when a State makes a referral, it brings to the attention of the Court78 an entire situation, ‘in which one or more crimes appears to have been committed’, not simply a certain conduct. Thereafter, ‘it is the duty of the prosecutor to investigate and determine which, if any, crime or crimes have been committed and by whom.’79 The existing State referrals call for the examination of situations where crimes appear to have been committed within the Court’s subject-matter jurisdiction.80 The same appears to apply with the proprio motu action of the Prosecutor ‘in respect of such a crime’,81 as evidenced recently in the decision authorizing the opening of an investigation into the Kenya situation.82 This approach makes sense in light of the conditions in which the compromise of the Court’s jurisdiction was achieved in Rome, where Articles 12–1683 seemed to form part of a ‘package deal’ endorsed at the very end 78 79

80

81

82 83

The Rome Statute, above n. 34; under Art. 42(1), the Office of the Prosecutor is responsible for receiving referrals. D. D. N. Nsereko, ‘Triggering the Jurisdiction of the International Criminal Court’, African Human Rights Law Journal, 4(2) (2004), 267. Gbagbo Jurisdictional Appeal Decision, above n. 23, para. 81. For the Uganda and DRC referrals, see the Letter of the Prosecutor to President Kirsch of 17 June 2004, attached to the Situation in Uganda (Decision Assigning the Situation in Uganda to Pre-Trial Chamber II) ICC-02/04 (5 July 2004), and in Situation in the Democratic Republic of the Congo (Decision Assigning the Situation in the Democratic Republic of the Congo to Pre-Trial Chamber I) ICC-01/04 (5 July 2004), for the Central African Republic (CAR) Referral, see the letter of the Prosecutor to President Kirsch of 22 December 2004 attached to the Situation in the Central African Republic (Decision Assigning the Situation in the Central African Republic to Pre-Trial Chamber III) ICC01/05 (19 January 2005). The Rome Statute, above n. 34, Art. 13(c); cf. Rome Statute Arts. 15(1), 53(1)(a) and Regulations 49, 52 and Rule 48 RPE. Generally, P. Kirsch and D. Robinson, ‘Initiation of Proceedings by the Prosecutor’, in Cassese et al. (eds.), The Rome Statute of the International Criminal Court, above n. 14, 661–664; Turone, ‘Powers and Duties of the Prosecutor’, above n. 77, 1150–1151; M. Bergsmo and J. Peji´c, ‘Article 15’, in Triffterer (ed.), Commentary on the Rome Statute, above n. 17, 589; M. Bergsmo and P. Kruger, ‘Article 53’, ibid., 1070; J.T. Holmes, ‘Jurisdiction and Admissibility’, in R.S. Lee (ed.), The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence (Ardsley, NY: Transnational, 2001), 331. Kenya Authorization Decision, above n. 20, 18, para. 39 and 68, para. 178. Although Art. 16 makes no reference to conduct, act or omissions, the deferral documents themselves have used such language. Note UNSC Res. 1422, UN Doc. S/RES/1422 (12 July 2002); UNSC Res. 1487, UN Doc. S/RES/1487 (12 June 2003); further, C. Stahn, ‘The Ambiguities of Security Council Resolution 1422’, European Journal of International Law, 14 (2002), 85; S. Zappal`a, ‘The Reaction of the US to the Entry into Force of the ICC Statute: Comments on UN SC Resolution 1422 (2002) and Article 98 Agreements’, Journal

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of the Conference.84 Hence, the interpretation of Article 12 should be properly placed in the context of the provisions of Part II of the Statute and in particular of Articles 13–16 ,85 with due regard to the definition of the ‘crimes within the jurisdiction of the Court’ in Article 5 of the Statute. This would seem consistent with the affirmation of the Appeals Chamber that ‘[t]he context of a given legislative provision is defined by the particular sub-section of the law read as a whole in conjunction with the section of an enactment in its entirety’86 – Part II of the Statute being for present purposes the relevant ‘section of [the] enactment’.87 In light of the above, the ‘conduct in question’ refers to the conduct described in the two paragraphs referred to in Article 13 – i.e. the one or more crimes, in accordance with Article 5 of the Statute, which appear to have been committed in the situation referred by a State Party or examined by the Prosecutor under Article 15, rather than solely a certain act or omission.88 In this context, therefore, references to the provisions of other Parts of the Statute, and in particular those in Part III concerning General Principles – an entirely different subject altogether, which was negotiated and concluded well before the jurisdictional regime at Rome89 – would appear unhelpful.

84

85 86

87 88

89

of International Criminal Justice, 1 (2003), 114; UNSC Res. 1593, UN Doc. S/RES/1593 (25 March 2005), para. 6; L. Condorelli and A. Ciampi, ‘Comments on the Security Council Referral of the Situation in Darfur to the ICC’, Journal of International Criminal Justice, 3(2005), 594–597. I.e., as part of the entire jurisdictional ‘package deal’. Williams and Schabas, ‘Article 12’, above n. 29, 555, ‘Article 13’; M.C. Bassiouni, Introduction to International Criminal Law (2nd rev. edn, Leiden: Martinus Nijhoff, 2012), 658, n. 29 and Chapter 3. Williams and Schabas, ‘Article 12’, above n. 29, 564. Extraordinary Review Appeal, above n. 47, para. 33. However, there are examples from earlier case-law where Part III was used to interpret Part II of the Statute, such as the Lubanga Arrest Warrant Appeal, above n. 21, para. 78, on Art. 17(1)(d) and Arts. 33 and 27(1). The judgment speaks in terms of sections and sub-sections, which do not exist in the Statute. The sub-section could arguably be Arts. 12–16 of the Statute in the present case. Note that Security Council in the referral process can refer only Chapter VII situations, whereas States Parties may refer any situation in which one or more crimes within the Court’s jurisdiction appear to have been committed. A. Marchesi, ‘Article 14’, in Triffterer (eds.), Commentary on the Rome Statute, above n. 17, 579. M.C. Bassiouni, ‘Negotiating the Treaty of Rome on the Establishment of an International Criminal Court’, Cornell International Law Journal, 32(3) (1999), 453–454, 457–458. As Saland reports, the Working Group on Part III concluded its business on 7 July 1998 and became the first to finish its task. Saland, ‘International Criminal Law Principles’, above n. 59, 194. The Kenya Authorization Decision, above n. 20, has explained along similar lines the difference in the wording of Arts. 15 and 53 of the Rome Statute, 29–30, para. 67.

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Finally, as regards the principle ne bis in idem, it can be argued that the notion of ‘conduct’ in the provision does not indicate a conduct per se, in juxtaposition to consequences or circumstances. It rather seems to refer to the entire set of facts concerning a certain crime, for which an accused was tried and convicted or acquitted by the Court or a national court. This view is supported by Article 20(1) that makes reference to ‘conduct, which formed the basis of crimes’, as well as Article 20(3), which applies with regard to ‘conduct also proscribed under Article 6, 7 or 8’. These provisions seem to adhere to the ‘broad interpretation’ of the idem, i.e. they cover ‘the previous conduct, both in law and in fact’,90 or in other words ‘the historical facts relevant for subsumption under the legal qualification’.91 They do not exclude any of the factual parameters of the crime, or distinguish between them. This approach is also supported by general principles of law, at least insofar as a criminal disposition by any court presupposes the examination of all the attendant factual and mental elements of a crime.92 The same may be said for the notion of conduct – or ‘attributed conduct’93 – under Article 22 of the Statute. ‘Conduct in question’ in Article 22(1) does not refer simply, implicitly or otherwise only to conduct as ‘acts or omissions’, excluding consequences, but to the totality of the objective and subjective elements of the case at hand. Any other explanation would lead to manifestly unreasonable results94 and would defeat the deterrent purposes of the Statute. Accordingly, the same expression in Article 12(2)(a) could be construed in a similar manner as in Article 22(1), in order to achieve consistency and uniformity in 90 91

92 93 94

Ibid., 692 on Art. 20(3); van den Wyngaert and Ongena, ‘Ne bis in idem Principle’, above n. 68, 714, 722, 726. Tallgren and Coracini, ‘Article 20’, above n. 68, at 692, n. 131, who comment on the selected wording of ‘conduct also proscribed in Article 6, 7 or 8’ in Art. 20(3); ‘The reason for this change [in the Rome Conference] has never been made clear. One explanation could be that since upwards idem is defined by “conduct constituting a crime” meaning the historical facts relevant for subsumption under the legal qualification, the reference to those articles precisely defining the conduct elements which constitute criminal behaviour might have seemed more appropriate than referring to the article merely listing the groups of crimes’. ICTY, Prosecutor v. Zejnil Delali´c et al. (Celebici) (Judgment) IT-96–21-T (16 November 1998), paras. 424–425. Katanga Confirmation Decision, above n. 48, para. 487. In this spirit, B. Broomhall, ‘Article 22’, in Triffterer (ed.), Commentary on the Rome Statute, above n. 17, at 722, ‘“Conduct” may include both acts and omissions where appropriate . . . Conduct will “constitute” a crime when it comprises all the necessary elements of the crime, including the mental element under Article 30.’

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the interpretation of the Statute and facilitate the accomplishment of the Court’s purposes.

5.4 Interim conclusion By way of conclusion, the above arguments may be summarized as follows. The interpretation of the terms ‘conduct in question’ in the context of Article 12(2)(a) is open to certain alternative explanations. The first option is to consider that the term is used consistently and systematically throughout the Statute. In light of Article 30 as it currently stands and the formulation of Draft Article 7 of the Bureau Discussion Paper and the Bureau Proposal in Rome, the terms ‘conduct in question’ may be construed as ‘act or omission in question’, to the exclusion of circumstances or consequences. This may be considered a conscious choice on the part of the drafters, intended to have legal effects, in the same way that the terms ‘conduct’ and ‘crime’ have been carefully selected in the context of Articles 11 and 24(1), as well as Articles 20 and 31 of the Statute. This may also be supported by the uniqueness of the formulation of Article 12(2)(a) compared to Articles 12(2)(b) and 12(3) of the Statute. The second option is to accept that, although the drafters intended to use the term ‘conduct’ consistently throughout the Statute, the use of the terms in Article 12(2)(a) is a case of inopportune drafting. According to Bassiouni, the Chairman of the Drafting Committee in Rome, this seems to be the case with Article 12(3), where the text ‘was sent directly to the Committee of the Whole and not to the Drafting Committee’ and the formulation ‘crimes in question’ was just a ‘material error’.95 The particular drafting circumstances in Rome have been considered responsible by the Court itself for other instances of drafting imperfections in the Statute.96 Similar concerns could be raised perhaps with regard to the provision and the wording of Article 12(2)(a) – and similar solutions could be advanced.97 In any event, considering that in the last days of 95

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Bassiouni, Introduction to International Criminal Law, above n. 84, 681, n. 138; M.C. Bassiouni, ‘Negotiating the Treaty of Rome on the Establishment of an International Criminal Court’, Cornell International Law Journal, 32 (1999), 457–458, 503–504, n. 30; R. Cryer et al., An Introduction to International Criminal Law and Procedure (2nd edn, Cambridge University Press, 2010), 148–149; S. Rosenne, ‘Poor Drafting and Imperfect Organization: Flaws to Overcome in the Rome Statute’, Virginia Journal of International Law, 41 (2000), 185. Kenya Authorization Decision, above n. 20, 29–30, para. 67. It is questionable whether such oversight may be corrected by adding a Rule of Procedure, as it happened with Article 12(3) and the adoption of Rule 44, Sub-rule 2; S. Freeland,

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the Conference the adoption of Article 12 took place in non-transparent circumstances, when the P5 decided to ‘close ranks’,98 the preparatory works do not shed light on the selection of the specific formulation or the motives behind it. Finally, it can be argued that ‘conduct in question’ in Article 12(2)(a) means in fact ‘crimes in question’. This reading is supported by the chapeau of Article 12, as well as a contextual reading of the provision in the light of Article 13 and Part II of the Statute. The emphasis on the rules included in the same Part of the Rome Statute seems to be consistent with the Court’s authentic guide, as well as the Court’s purpose to end impunity and deter the commission of crimes in the future. Crucially, this is confirmed by the early practice of the Court, although the issue has not been squarely argued and addressed to this date. In light of these observations, and absent a clear determination by the Court, the matter is open to some speculation. It is submitted, however, that particularly in light of the Court’s practice and the Statute’s object and purpose, it would indeed seem an exaggeration inconsistent with the position of Article 12 in the jurisdictional system of the Court to interpret this part of the provision as meaning in reality anything other than ‘crimes in question’, or at the very least as ‘conduct’, including acts, consequences and circumstances of a certain criminal activity in its entirety. In deciding therefore, how much exactly of the crime in question must be committed on State Party territory for the Court to have jurisdiction, it is now time to turn to the application of localization devices.

5.5 Localization of criminal activity As developed in some detail in Chapter 2, reference to the rule of State territorial jurisdiction traditionally involves its methodological division into subjective and objective territoriality, on the basis of the location where different parts of a certain criminal activity are said to have manifested. As the Court is vested with jurisdiction, in the event that a crime

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‘How Open Should the Door Be?: Declarations by Non-States Parties under Article 12(3) of the Rome Statute of the International Criminal Court’, Nordic Journal of International Law, 75(2) (2006), 233–234; J. Goldsmith, ‘The Self-Defeating International Criminal Court’, University of Chicago Law Review, 70(1) (2003), 92, n. 11. H.-P. Kaul, ‘The International Criminal Court: Jurisdiction, Trigger Mechanism and Relationship to National Jurisdictions’, in M. Politi and G. Nesi (eds.), The Rome Statute of the International Criminal Court: A Challenge to Impunity (Aldershot: Ashgate/Dartmouth, 2001), 62.

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occurs within the territory of a State Party, a significant issue concerns the extent of the Court’s jurisdictional reach on the basis of territory in accordance with its Statute and general international law. In this framework, the foremost legal questions concern cases of partial commission of a crime within State Party territory under international law.

5.5.1 Delimiting the Court’s territorial jurisdiction on the basis of consequences or ubiquity and the application of rules and principles of international law The Lotus Case confirmed unequivocally that States may exercise criminal jurisdiction ‘if one of the constituent elements of the offence, and more especially its effects, have taken place there.’99 Regardless of the extensive criticism addressed to certain aspects of the reasoning of this judgment,100 the Lotus decision remains an authority on territorial criminal jurisdiction. Its pervasive influence is evidenced in the Arrest Warrant Case.101 In that instance, the issue of criminal jurisdiction was ultimately not decided by the ICJ, for procedural reasons.102 However, the legality of universal jurisdiction was extensively discussed by certain judges in their opinions on the basis of the Lotus decision. For some, it was employed as authority for the proposition that the issuance of the arrest warrant by Belgium was in violation of international law;103 they considered that Lotus does not give States a licence to depart from a strictly territorial approach to criminal jurisdiction but rather establishes a clear attachment to territoriality.104 For others, it was used to support exactly the contrary.105 Notwithstanding the final disposition of this case, the discussion clearly indicates one thing at the very least; while the state of 99 100

101 102 103 104

Case of the S.S. Lotus (France v. Turkey) PCIJ Rep. Ser. A, No. 10, 23 (1927). Ibid., 18–19 and below n. 108 and text; on criticism to the so-called ‘presumptive freedom of action of sovereign States’, H. Lauterpacht, The Development of International Law by the International Court (2nd edn, London: Stevens, 1958), 359–361; G.G. Fitzmaurice, The Law and Procedure of the International Court of Justice (Cambridge: Grotius, 1986), vol. I, 142, 146–147; R. Higgins, Problems and Process: International Law and How We Use It (Oxford: Clarendon Press and New York: Oxford University Press, 1994), 77, cautions against making too much out of an obiter read outside of its context. Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium) (Judgment) [2002] ICJ Rep. 3. Ibid., 19–20, paras. 41–43 (non ultra petita rule). Ibid., 43–45, paras. 13–16 (Separate Opinion of President Guillaume); ibid., 58–59, paras. 9–10 (Declaration of Judge Ranjeva). 105 Ibid. Ibid., 168–170 (Dissenting Opinion of Judge ad hoc van den Wyngaert).

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international relations that inspired and underpinned the Lotus decision in 1927 may have changed drastically, its findings on territorial jurisdiction remain valid and applicable today.106 Beyond Lotus’ general pronouncements, however, the specifics remain unclear. No international judgment has explained with precision the rules regulating State territorial criminal jurisdiction under customary law applicable to cases of participation or attempt, for example. Therefore, such issues have been addressed and resolved by national courts under national law.107 The reasons that led to this situation are many. They include the Lotus perspective that unless certain State action is prohibited, it is permitted,108 as well as the absence of a general treaty regulating State criminal jurisdiction on the basis of territoriality.109 This State of affairs has in effect allowed states to constantly test – and perhaps ever re-calibrate – the limits of lawful jurisdictional assertions under customary international law.110 By further stretching their jurisdictional reach, States have increasingly required lesser or fewer consequences or constituent elements to take place in their territory for the exercise of criminal jurisdiction, up to the point where the occurrence of ‘effects’, other than the consequences of the crime, suffice for asserting territorial jurisdiction. This situation in the law of jurisdiction has been criticized in the literature. For one thing, it is said to foster lack of uniformity and wide divergencies in the

106 107

108 109

110

Ibid., 77–79, paras. 50–51 (Joint Separate Opinion of Judges Kooijmans, Higgins and Buergenthal). Bantekas, International Criminal Law, above n. 28, 335–336. R. Jennings and A. Watts (eds.), Oppenheim’s International Law (9th edn, London: Longman, 1992), vol. I, 460– 461, n. 13; J. Crawford, Brownlie’s Principles of Public International Law (8th edn., Oxford University Press, 2012), 457–459; M.N. Shaw, International Law (6th edn., Cambridge University Press, 2008) 655–658; J. Dugard, International Law: A South African Perspective (3rd edn, Lansdowne: Juta, 2005), 149–154; J. Combacau and S. Sur, Droit International Public (Paris: Montchrestien, 2000), 347–349; J. Verhoeven, Droit International Public (Brussels: Larcier, 2000), 132–136; P. Daillier et al., Droit International Public (7th edn, LGDJ, 2002), 505–507. Case of the S.S. Lotus (France v. Turkey), above n. 99, 18–19. A. Bos, ‘The Extraterritorial Jurisdiction of States: Preliminary Report’, Annuaire de l’Institut de Droit International 65-I (1993), 39; L. Reydams, Universal Jurisdiction: International and Municipal Legal Perspectives (Oxford University Press, 2003), 16–17. For cases where treaty drafters attempt to exclude the contribution of a treaty to the formation of customary law, note Art. 17 of International Convention for the Suppression of Counterfeiting, 20 April 1929, 112 LNTS 371, and Article 16(2)(a) of the 1999 Second Protocol to the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict, 17 May 1999, 2253 UNTS 212.

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regulatory selections of different national legal systems; for another, it is argued that it would be unreasonable to subject to territorial law all the situations and all the facts having a certain territorial connection with a State. Such connections would be multiple, and in any event they would not be equally significant.111 Be that as it may, States enjoy a significant measure of discretion under international law in the interpretation of constituent elements of a crime under territorial jurisdiction, so as to include preparatory acts, attempt or acts of assistance to the commission of a crime.112 In fact, they seem to have cautiously preserved this situation. It is indicative that national perspectives on territoriality are explicitly preserved even when substantive criminal law harmonization is achieved through the adoption of international conventions. This is witnessed mostly in the common prescriptions that ‘[t]his Convention does not exclude any criminal jurisdiction exercised in accordance with internal [or national] law’113 or ‘[t]he provisions of this Article shall be subject to the provisions of the domestic law of the Party concerned on questions of jurisdiction’.114 Save in few exceptional 111 112 113

114

Combacau and Sur, Droit International Public, above n. 107, 349. See in detail from national criminal systems on the point in Chapter 2. Indicatively, Art. 5(3) of the International Convention against the Taking of Hostages, 17 December 1979, 1316 UNTS 205; Art. 3(3) of the Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents, 14 December 1973, 1035 UNTS 167; Art. 5(3) of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 10 December 1984, 1465 UNTS 85; Art. 10(5) of the Convention on the Safety of United Nations and Associate Personnel, UNGA Res. 49/59, 49 UN GAOR Suppl. (No. 49) 299, UN Doc. A/49/49 (1994) 2051 UNTS 363; Art. 8(1)(a) of the Convention on the Physical Protection of Nuclear Material, 3 March 1980, 1987 UNTS 125; Art. 6(4) of the Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation, 10 March 1988, 1678 UNTS 221; Art. 6(5) of the Convention for the Suppression of Terrorist Bombing, 15 December 1997, 2149 UNTS 284; Art. 7(6) of the International Convention for the Suppression of the Financing of Terrorism, 9 December 1999, 860 UNTS 105; Art. 15(6) of the United Nations Convention against Transnational Organized Crime, 15 November 2000, 2225 UNTS 209; Art. 36(3) of the Single Convention on Narcotic Drugs, 30 March 1961, 520 UNTS 151; Art. 4(3) of the Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, Vienna, 20 December 1988, UN Doc. E/CONF.82/15, Corr.1 and 2; Art. 17(1)(a) of the Council of Europe Civil Law Convention on Corruption, 4 November 1999, CETS 174; Art. 42(6) of the United Nations Convention Against Corruption, 9–11 December 1999; Second Protocol to the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict, 17 May 1999, 2253 UNTS 212; Art. 5(3) of the Council of Europe Convention on the Protection of the Environment through Criminal Law, 4 November 1988, CETS 172. Art. 22(4) of the Convention on Psychotropic Substances, 21 February 1971, 1019 UNTS 175.

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cases,115 international treaty law does not seem to have encouraged the crystallization of specific interpretations of territorial jurisdiction under international law. The lack of uniform treaty practice is further accentuated by the absence of authoritative statements on territorial jurisdiction, particularly as regards international crimes. National courts seem to have been more inclined to extend State jurisdiction over such crimes by virtue of other rules of criminal jurisdiction, rather than territoriality.116 This seems to be true, for example, as regards the crime of genocide. Even though the Genocide Convention itself referred only to territoriality in Article VI,117 today it is authoritatively said to be ‘the classic case for application of universal jurisdiction.’118 It becomes evident, therefore, that territorial jurisdiction is increasingly set aside in favour of other rules particularly as regards the prosecution and punishment of massive human rights violations. Evidently, this development does not signify a rejection of territorial jurisdiction as a rule of criminal jurisdiction for the prosecution of ‘core crimes’. It is best attributed to the State policy element inherent in these crimes and the clear political issues that are at stake in such prosecutions. In this context, it is easy to understand the reluctance of the territorial State – or its neighbours, where such crimes tend to ‘spill over’ – to pursue criminal charges and implicate possibly even their own officials.119 115

116

117

118 119

Specific rules are indeed rare in international instruments. For examples, see Art. 8(5) of EU Council Framework Decision on Combating the Sexual Exploitation of Children and Child Pornography, 2004/68/JHA, OJ (L13) 44; Inter-American Convention on Forced Disappearance of Persons, Bel´em do Para, 6 September 1994, entered into force 28 March 1996, Art. IV, ILM 1994, 1529; the Commentaries on OECD Convention on Combating Bribery of Foreign Public Officials in International Business Relations, Paris, 21 November 1997, 37 ILM 1 (1998), reprinted in M. Pieth et al. (eds.), The OECD Convention on Bribery: A Commentary (Cambridge University Press, 2007), xxxii; Art. 4 of the Convention on the Protection of the European Communities’ Financial Interests, OJ (C 316), 27 November 1995. Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium) [2002] ICJ Rep. 77–78, para. 47 (Joint Separate Opinion of Judges Kooijmans, Higgins and Buergenthal). Art. VI of the Convention on the Prevention and Punishment of the Crime of Genocide, 9 December 1948, 78 UNTS 227. See further Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro) (Merits) [2007] ICJ Rep. 43, para. 442. Further, In re Augusto Pinochet, Audiencia Nacional, 119 ILR 331, 335–6. In re Jorgi´c, Federal Republic of Germany, Federal Constitutional Court (BVerfG) 135 ILR at 152, 166. A. Cassese, International Criminal Law (2nd edn, Oxford University Press, 2008), 336– 337, n. 1.

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For these reasons, there is therefore considerable difficulty in uncovering recent national case-law dealing with a more extensive approach to state territorial criminal jurisdiction over charges of genocide, war crimes and crimes against humanity. To sum up, all these observations present a situation where international law is limited to an ‘umbrella’ ruling from 1927, under which States have enjoyed discretion in the interpretation of territorial jurisdiction in criminal law. Every State criminal law system has been basically left to fend for itself, with international law retaining a residual role that came into effect only in the extraordinary instance of State objections under the principle of non-intervention.120 Particularly as far as international crimes are concerned, there is also a marked absence of court decisions on territoriality pursuant to the recent advent and growing acceptance of other forms of jurisdiction. What, then, is the position reserved for international law in this situation? It is submitted that there are two basic points that are important for the operation of the ICC in the present examination. The first relates to the scope of jurisdiction and the limits imposed by the principle of non-intervention. The clearest contemporary position available is Mann’s approach to jurisdiction and the emergence of a jurisdictional ‘rule of reason’.121 This concept encapsulates notions of non-intervention and abuse of rights.122 It posits that the limits imposed by International Law are satisfied when the exercise of jurisdiction is ‘reasonable’.123 The bottom line is that a national court is exercising jurisdiction in accordance with international law when it is capable of demonstrating that the criminal activity in question has ‘a reasonable nexus’124 – a ‘real and substantial link’125 – with its respective State, depending on the circumstances of the crime and the nature of the offence. Failure to 120 121 122 124

125

M. Akehurst, ‘Jurisdiction in International Law’, British Yearbook of International Law, 46 (1972–1973), 167–169. F.A. Mann, ‘The Concept of Jurisdiction in International Law’, Recueil des Cours, 111 (1964-I), 43–44. 123 Ibid. See above Section 2.5. Jorgi´c, above n. 118, 165, ‘With regard to the prohibition on interference with State sovereignty that is enshrined in both customary and treaty law (Article 2(1) of the UN Charter), the Federal Constitutional Court has required some reasonable nexus with Germany when subjecting to German law all acts performed in a foreign territory and therefore outside German territory. What constitutes a reasonable nexus is dependent on the particular nature of the subject of regulation . . . ’. Libman v. The Queen [1985] 2 SCR 178, 200 (Can.): for an extensive discussion concerning this link, see Chapter 6. Libman was largely endorsed by the New Zealand Courts in Solicitor-General v. Reid [1997] 3 NZLR 617, 631–632 (1997) (CA) (NZ). Further, in Section 2.5.

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demonstrate that jurisdiction is justified due to the existence of these links would mean that jurisdiction is ‘unreasonable’ and entail a violation of the prohibition of non-intervention. In the absence of any historical precedent from a standing permanent international criminal court, the Court may well assert jurisdiction in much the same way as States do. It may decide the matter in the event of jurisdictional objections by recourse to the principle of non-intervention and a jurisdictional rule of reason. In these circumstances, even if an objection is raised on account of the Court’s nature as an international organization rather than a sovereign State, the Court could reply that its kompetenz kompetenz is an inherent power stemming from general principles of law and not subject to State consent limitations.126 In the alternative, nothing would prevent the Court from invoking as a second line of defence the basic doctrine of delegation of authority as the foundation of its jurisdiction and the well-known Nuremberg approach – that States Parties can do jointly through the Court what each of them can do individually through their national courts. In any event, the Court’s jurisdiction under Article 12(2)(a) embodies a legal requirement that should not be confused with admissibility. This is significant in cases where States Parties and States not Parties share concurrent jurisdiction over a crime committed in part within the territory of both. In these circumstances, a case may be inadmissible for the Court under Article 17 if a State not Party decides to investigate the crime committed in part in its territory. However, the fact that concurrent territorial jurisdiction may exist over the same activity committed in part also in the territory of States Parties is not in itself sufficient to prevent the Court’s jurisdiction. To hold otherwise would indicate that under international law there is a hierarchy between the different jurisdictional claims of States in the territory of which a crime was partly committed, such as would automatically exclude one State’s jurisdictional claim in favour of another’s. This is clearly not the case under contemporary international law. As Cameron accurately explained, ‘[t]here is certainly no support in State practice for requiring all the “territorial” States to consent before a prosecution can be brought over a crime which can be localised to any one of them.’127 126 127

See above Section 5.1.2.2. I. Cameron, ‘Jurisdiction and Admissibility Issues under the ICC Statute’, in D. McGoldrick et al. (eds.), The Permanent International Criminal Court: Legal and Policy Issues. Studies in International Law (Oxford: Hart, 2004), 74.

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The second, related, point concerns the identification of the ‘part’ of the crime which suffices for the exercise of territorial jurisdiction. States are free under international law to make the exercise of their criminal jurisdiction dependent on the constructive localization of any ‘constituent element’ of a crime within their territory. States are equally free to select the criteria for the classification of criminal elements as ‘constituent’ or otherwise under their national law and jurisprudence. The limitations to such assertions are prescribed loosely by the principle of nonintervention. This approach seems to be in line with the basic concern of the PCIJ in Lotus, where over-regulation – with the risk of conflicts due to concurrency of claims – was preferred to under-regulation and impunity.128 The Court may find that for its purposes the Lotus ‘constituent element’ approach suffices. In order to decide under what conditions an element of an offence is ‘constituent’ or otherwise, the Court may be inspired by State practice. The best approach seems to be the one adopted in French and English criminal law, where an element is ‘constituent’ of an offence, when in its absence the offence could not be characterized or prosecuted as such.129 Beyond that point, however, it is doubtful whether State practice is useful for the identification of the specific ‘constituent elements’ of a certain offence as such. The main issue is perhaps better understood if one views the subject matter and territorial parameters of the Court’s jurisdiction as inextricably intertwined concepts. As a matter of law, it is clear that, if the definition of a crime changes, so in all likelihood will the ambit of a judicial system’s territorial jurisdiction.130 By the same token, when the criterion for the exercise of territorial jurisdiction is a ‘constituent element’, if that element changes, so will the Court’s reach. Therefore, it is important for the assessment of the Court’s territorial jurisdiction that the legal characterization under national law of part of a crime’s actus or animus as a ‘constituent element’ of a crime is not accorded importance for the Court’s jurisdiction; the Court should make its own, autonomous determination on the matter. 128 129 130

See Section 2.4.2. See in detail Chapter 2. From international practice, Art. IV of the Enforced Disappearances Convention, above n. 115. As regards universal jurisdiction and genocide, K. Ambos and S. Wirth, ‘Genocide and War Crimes in the Former Yugoslavia Before German Criminal Courts’, in H. Fischer et al. (eds.), International and National Prosecution of Crimes under International Law: Current Developments (Berlin: Spitz, 2001), 786.

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The irrelevance of national law for the determination of the specific ‘constituent elements’ of offences stipulated the Rome Statute is argued for a number of reasons. First and foremost, national legislation may use different definitions of crimes and different theories to regulate attempt, participation and preparatory acts. This situation seems to persist in the domestic law of States Parties even after the implementation of the Rome Statute. Sluiter and Schabas have reported a number of instances of State implementing legislation, where ‘under-inclusion, in the sense that penalisation of conduct is restricted in comparison to the Rome Statute, is more frequent.’131 The fact that the Elements document has been adopted at the ICC level does not change this situation. There is no guarantee that the Elements’ approach in the classification and enumeration of the crimes in the Statute will be followed by State Parties’ authorities in the delimitation of their subject matter – and correspondingly their territorial – jurisdiction and the localization of crimes. After all, States Parties are not required to ratify or otherwise transpose the Elements document into their national legal orders; the latter exists formally only for the Court’s use within the context of Article 9 of the Statute.132 Additionally, when ratifying the Rome Statute, States Parties may select – to the extent that they are not obliged under their constitutional laws – to apply national definitions of certain criminal elements, such as mental elements and modes of liability,133 thus departing from the stipulations of the Rome Statute.134 Moreover, it is not inconceivable that 131 132

133

134

G. Sluiter and W. Schabas, Third Report: International Criminal Court, International Law Association, Rio de Janeiro Conference (2008), 6, with examples. Ibid., 7, although some States Parties (e.g. Malta) make use of the Elements as a requirement for their national courts. Further on State attitudes towards the Elements, L. McKay, ‘Characterising the System of the International Criminal Court: An Exploration of the Role of the Court through the Elements of Crimes and the Crime of Genocide’, International Criminal Law Review, 6(2) (2006), 272, and H. van der Wilt, ‘Equal Standards? On the Dialectics between National Jurisdictions and the International Criminal Court’, Journal of International Criminal Justice, 8 (2008), 233–241. For the proposition that different modes of liability entail the ‘commission’ of a ‘different crime’, note the ruling of Prosecutor v. Jean-Pierre Bemba Gombo, above n. 3, paras. 26– 27; Al-Bashir Arrest Warrant Decision, above n. 3, 10, para. 27, where the notion of commission is further developed. H. Friman and C. Kress, ‘Modifying Elements of Crimes when Importing Core International Crimes’, in M. Bergsmo et al. (eds.), Importing Core International Crimes into National Criminal Law (Oslo: Orkel Opsahl, 2007), 27–29. As examples, J. Rikhof, ‘The Canadian Model’, ibid., 19–20, and Addendum, at 50–54; C. Kress, ‘The German Model’, ibid., 24, 28; contra, S. Wirth, ‘Germany’s New International Crimes Code: Bringing a Case to Court’, Journal of International Criminal Justice, 1 (2003), 154–7.

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national courts may identify customary law developments subsequent to those in the Rome Statute. They may adopt different definitions of crimes reflecting these developments in their jurisprudence or practice, further complicating the situation over the substantive content of the Statute’s prohibitions.135 The Court, on the other hand, is required to operate on the basis of its own legal instruments and its own definitions. Indeed, the exhaustive definitions of crimes in Articles 6–8, coupled with the adoption of the Court’s Elements of Crimes, provide significant guidance as to the specific constituent elements of each crime, and therefore the reach of the Court’s jurisdiction based on objective territoriality. The Elements document in any event occupies a special place in the Court’s decision-making process, due to the hierarchy prescribed by Article 21 ICC Statute. The significance of this discussion is not limited only to the general reach of the Court’s territorial jurisdiction under the ‘constituent elements’ approach. It may also be important in the admittedly rare scenario of ‘transfer of proceedings’.136 This is the case where a State Party initiates national proceedings against an individual for the commission of a crime within the jurisdiction of the Court, only to later decide to refer the case to the Court.137 The complication here would arise in the event that there is a difference between national law and the Rome Statute in the definition of the offence or the critical ‘constituent element’ used for 135

136

137

The Rome Statute, above n. 34, Art. 22(3) seems to have been promulgated bearing in mind exactly this possibility. Cf, however, here Art. 10(2) and its effect, practically ‘insulating’ Part 2 of the Statute from subsequent developments in customary law, M.H. Arsanjani and W.M. Reisman, ‘The Law-in-Action of the International Criminal Court’, American Journal of International Law, 99(2) (2005), 389. For national perspectives from the Canadian 2000 Act, and the German Code of Crimes Law, see Rikhof, ‘The Canadian Model’, above n. 134, 21–22 and Kress, ‘The German Model’, above n. 134, 28. See indicatively C. Kress et al. (eds.), The Rome Statute and Domestic Legal Orders (Kipa Fagnano Alto: Sirente 2005), vol. II, 133, on the possibility of transfer of proceedings under the German implementing legislation. The positions for and against the possibility of ‘voluntary relinquishment of jurisdiction and uncontested admissibility’ by States Parties to the Court are summarized by Cryer et al., An Introduction to International Criminal Law, above n. 95, at 157–158. It would seem that in this context, pertinent questions would arise as regards the admissibility of a case, rather than jurisdiction. The proposition that ‘self-referrals’ are admissible, because ‘unwillingness’ may stem also from reasons other than those mentioned in Art. 17 (shield the accused) has recently received the Court’s approval on a teleological reading of Art. 17: Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui (Reasons for the Oral Decision on the Motion Challenging the Admissibility of the Case (Article 19 of the Statute)) ICC-01/04–01/07 (16 June 2009), paras. 77–81. Kress, The Rome Statute and Domestic Legal Orders, above n. 136.

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localization. In this situation, it is highly debatable whether the Court could lawfully assume jurisdiction either ratione materiae or ratione loci; its judicial power is delimited by the definitions of crimes in Articles 6–8 and 12(2)(a) of the Statute, respectively, and a State Party may not unilaterally affect amendments to the Rome Statute.138 It remains therefore a possibility, however remote, that the Court’s Elements may prove to be of less value than anticipated in delimiting the precise scope of its territorial reach. That said, it is submitted that, notwithstanding these very rare instances, the Court’s path under international law seems clear. The Court retains the liberty to interpret Article 12(2)(a) in the exercise of its comp´etence de la comp´etence so as to endorse the constituent elements approach of the Lotus Case. It is submitted that this course of action is available to the Court for all aspects of ‘commission in part’, including participation, attempt and preparatory acts, since it is available for all States Parties to the Statute under international law. Correspondingly, any jurisdictional objections raised against the Court’s authority in these conditions would need to demonstrate a violation of the prohibition of non-intervention, in the sense of an absence of a ‘substantial connecting link’ between the crime in question and State Party territory, taking into account the nature of the crime and the circumstances surrounding its commission. As such a connecting link may be understood the commission on State Party territory of any part of the offence, without which a charge could not be upheld, or presumably even an ‘effect’, under the effects doctrine.

5.5.2 Delimiting the Court’s territorial jurisdiction on the basis of consequences or ubiquity and the application of general principles of law The above analysis of the status of the law leads to a situation where subjects of international law, including States Parties and the ICC, are entitled under customary law to exercise jurisdiction on the basis of the consequences of a certain criminal activity or the occurrence of other ‘constituent elements of the crime’ in their territory. The limits of such jurisdictional assertions, in the absence of a specific rule in customary law and in ‘applicable treaties’, are to be deduced by recourse to the 138

The Rome Statute, above n. 34, Arts. 121–122. The same applies with regard to the adoption of universal jurisdiction on the part of certain States Parties in their implementing legislation (German, South African, etc). A case asserted on the national level under universal jurisdiction cannot, in case of subsequent unwillingness, be later referred to the Court. See below, Section 6.2.

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principle of non-intervention under international law, as explained by Francis Mann and interpreted in recent jurisprudence of national courts. This is proposed as the best-suited analytical course for the Court to follow in future discussions relating to such issues. In the alternative, however, if it is considered that the general application of the principle of non-intervention, viewed through the lens of Mann’s doctrine, is not legally sufficient, then a solution could be gleaned mainly from nationally inspired approaches, according to Article 21(1)(c) of the Statute. While under general international law employing national law analogies to address gaps or ambiguities resulting from the application of international rules hardly qualifies as an innovation,139 the wording of Article 21(1)(c) of the Statute makes this a legally perilous exercise. In particular, under that provision, if no clear solution is deduced by the application of rules of customary law, ‘applicable treaties’ and general principles of international law, the Court’s judges should seek one in the ‘general principles of law derived by the Court from national law of legal systems of the world including, as appropriate, the national laws of States that would normally exercise jurisdiction over the crime, provided that those principles are not inconsistent with this Statute and with international law and internationally recognized norms and standards [emphasis added].’ This provision is fraught with difficulties, as plainly evidenced from its wording. As regards the application of Article 12(2)(a) and the rules of objective territoriality under the lens of Article 21(1)(c), there are two most important clusters of issues. In the first place, how should the ‘normality/normalcy’ of the exercise of territorial jurisdiction be measured, by reference to what criteria and in what way? Secondly, what is the threshold or the method for the determination that a certain norm qualifies as a general principle? As regards the states which ‘normally’ exercise jurisdiction, authorities seem to converge in their analysis of Article 21(1)(c) that the Statute provides no guidance as to how exactly one should approach this requirement. This provision is considered a victim of compromise in Rome between those who advocated the use of analogical application of national law 139

Generally, Jennings and Watts (eds.), Oppenheim’s International Law, above n. 107, 36– 40; H. Lauterpacht, The Function of Law in the International Community (2nd edn, Oxford University Press, 2011) 123–126; Extraordinary Review Appeal, above n. 47, para. 39.

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principles and those who wished a specific State (territorial, nationality, etc.) to be mentioned.140 Authors criticize the wording, as well as the essence of the provision.141 The general consensus is that such States include the territorial and nationality States under Article 12(2), while reference is also made to the custodial State 142 and the State of nationality of the victims.143 As far as universality is concerned, it should be probably excluded, ‘at least as long as such jurisdiction is exercised by a [very] few states only’.144 In this framework, an interpretation of Article 12(2)(a) on the basis of Article 21(1)(c) may be understood in one of two ways. On the one hand, a State that ‘normally exercises jurisdiction’ can be viewed as the State that ‘lawfully’ exercises jurisdiction under international law. This means, for the purposes of the present discussion, that the judges and the Prosecutor will need to assess if a certain national approach to the constructive localization of a crime within national territory is not prohibited by international law. This is a fairly self-explanatory doctrinal approach since, from a literal perspective, international law, as a system of law, is concerned with the limits of legality – or, in other words, what is ‘legal’ in a certain set of circumstances. The problem with this approach seems to be that in certain limited circumstances, the main legal question (e.g. whether the Court may lawfully exercise jurisdiction under objective territoriality when only acts of assistance have taken place on State Party territory) may coincide with the preliminary legal question under Article 21(1)(c) (i.e. whether a State Party may ‘normally’ exercise jurisdiction in the same circumstances under international law). Accordingly, and in the second place, if this expression is to be taken literally, it would seem to imply that the Court may have to venture for 140

141 142 143

144

Saland, ‘International Criminal Law Principles’, above n. 59, 215. M. McAuliffe DeGuzman, ‘Article 21–Applicable Law’, in Triffterer (ed.), Commentary on the Rome Statute, above n. 17, 710; J. Verhoeven, ‘Article 21 of the Rome Statute and the Ambiguities of Applicable Law’, Netherlands Yearbook of International Law, 33 (2002), 10; A. Pellet, ‘Applicable Law’, in Cassese et al. (eds.), The Rome Statute of the International Criminal Court, above n. 14, 1075; W. Bourdon, La Cour P´enal Internationale: Le Statut de Rome ´ (Paris: Editions du Seuil, 2000), 110–111; Sadat, The International Criminal Court and the Transformation of International Law, above n. 28, 178, n. 15. McAuliffe DeGuzman, ‘Article 21’, above n. 140, at 708, ‘rather awkward compromise’; Pellet, ‘Applicable Law’, above n. 140. Pellet, ‘Applicable Law, above n. 140, 1075. Verhoeven, ‘Article 21’, above n. 140, 10; I. Caracciolo, ‘Applicable Law’, in F. Lattanzi and W. Schabas (eds.), Essays on the Rome Statute of the International Criminal Court (Ripa Fagnano Alto: Sirente, 1999), 225. Verhoeven, ‘Article 21’, above n. 140.

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answers by recourse to national laws on the basis of considerations of judicial policy. This explanation is mainly derived from the approach followed by Pre-Trial Chamber I in the Lubanga Witness Proofing Decision.145 The key question in that instance was whether the Prosecutor had the right to engage in ‘witness proofing’ of the only witness – at that point – scheduled to testify at the Lubanga Confirmation Hearing.146 In order to address the matter and decide whether this practice – as opposed to witness ‘familiarization’ – is permissible under the Statute, the Pre-Trial Chamber examined the Prosecutor’s argument that this practice is accepted as a general principle under Article 21(1)(c) ICC Statute.147 The Chamber first noted that the Prosecutor did not submit that such practice was consistent with the laws of the Democratic Republic of the Congo (DRC). It then proceeded to examine whether this contention was supported by State practice and found that different States assumed widely different approaches.148 At this point, one would expect the discussion to be completed and the Prosecutor’s argument rejected under Article 21(1)(c). However, the PreTrial Chamber continued its examination of the topic specifically under the law of England and Wales, taking into account that ‘the Prosecution has expressly undertaken to comply with the principles provided for in Article 705 of the Code of Conduct of the Bar Council of England and Wales’.149 The Chamber, following a cursory examination of English law, decided that witness proofing, as proposed by the Prosecutor, was not in compliance with English law, the same law serving as model for the Prosecutor’s operation in this field. Accordingly, the Chamber rejected the Prosecutor’s contention under Article 21(1)(c).150 Surprisingly, however, it went further and concluded as follows: ‘On the contrary, if any general principle of law were to be derived from the national laws of the legal systems of the world on this particular matter, it would be the duty of the Prosecution to refrain from undertaking the practice of witness proofing as defined in paragraphs 16 (vii), (viii) and (ix) and 17 (ii), (iii)and (iv) of the Prosecution Information.’151 145 146

147 150

Prosecutor v. Thomas Lubanga Dyilo (Decision on the Practices of Witness Familiarization and Witness Proofing) ICC-01/04–01/06 (8 November 2006), paras. 35–40. Ibid., para. 40; this would involve, for example, reading to the witness his earlier statement, refreshing his/her memory on the evidence she/he is to provide, putting to the witness the very same questions in the very same order she/he will be asked during the hearing. 148 149 Ibid., para. 35. Ibid., paras. 36–37. Ibid., para. 38. 151 Ibid., paras. 40–41. Ibid., para. 42.

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The most intriguing feature of this decision lies in the Chamber’s discussion of English law in the context of Article 21(1)(c), at least to the extent that this provision refers to the law of the State that would ‘normally exercise jurisdiction’ – the obvious example here being Congolese law.152 It would appear, therefore, that there is an element of judicial policy in the approach of the Chamber. It is indeed difficult to envisage English jurisdiction over the Lubanga charges in any ‘normal’ course of events (at least under territoriality or nationality), the United Kingdom being a State with no connection to the crimes charged. In this context, the Chamber’s approach is probably best seen as a form of coup de grˆace to the failing argument of the Prosecutor. Be that as it may, one cannot help but wonder what the influence of this national law would be to the decision of the Chamber, if the Prosecutor’s practice was found to be in compliance with Article 705 of the Code of Conduct (or even whether the Chamber would have referred to it at all). What is the situation, however, if the Court decides that the State ‘normally’ exercising jurisdiction is in fact a State not Party and that accordingly the general principles of a State not Party are the decisive applicable law for the territorial parameter of the Court’s jurisdiction? This could be the situation, for example, if a chemical weapon is launched by one State not Party and it detonates in a city of a State not Party, after it had already traversed territorial waters or air space of one or more States Parties (e.g. exchange of missiles from Iran to Israel and vice versa via Jordanian air-space). In these circumstances, could it be seriously contemplated that the Statute would make the exercise of its jurisdiction dependent upon the position assumed by the criminal laws of States not Parties, where the activity commenced and where it was completed, being the legal systems that would ‘normally’ exercise jurisdiction? This situation would seem somewhat peculiar under international law. It would make the reach of the Court’s territorial jurisdiction dependent upon the legal approach adopted by States not Parties. It would therefore ‘tie’ the performance of 152

Since the DRC was the territorial State and the State of nationality of the accused and probably of most if not all of the victims. This understanding is shared by the ICTY, see ICTY, Prosecutor v. Milan Milutinovi´c, Nikola Sˇainovi´c, Dragoljnb Ojdani´c, Nebojsa Pavkovi´c, Vldimur Lazarevi´c and Streten Luki´c (Decision on Dragoljub Ojdani´c’s Motion to Prohibit Witness Proofing) IT-05–87-T (12 December 2006), paras. 11–12. Further, S. Vasiliev, ‘General Rules and Principles of International Criminal Procedure: Definition, Legal Nature and Identification’, in G. Sluiter and S. Vasiliev (eds.), International Criminal Procedure: Towards a Coherent Body of Law (London: Cameron May, 2009), 85.

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the Court’s function to laws and organs of a State which had not delegated any of its authority to the Court and had little or no connection under international law with it. ‘Peculiar’, however, does not mean necessarily unlawful. Arguably, the situation would be similar to private international law, where an ‘applicable law’ clause agreed upon by parties to an international agreement may conceivably refer to the laws of a third party. Perhaps in the same spirit in the case of the Statute, the drafters could even refer to a specific State not Party’s laws, if they so wished, whose legal norms would be best suited in their view for resolving such issues. The Court will need again to provide a conclusive answer to this question. In the alternative, however, even if the Court is to employ the general legal principles of a State, the solution advanced would still raise two significant issues that are equally applicable irrespective of the participation of that State to the Statute. The first concerns uniformity. Resolving jurisdictional questions by recourse to a specific national law approach to general principles would not serve the Court. It would indicate that the Court assumes a caseby-case approach – if not an ‘I know it when I see it’ approach – with minimum usefulness for the development of clear standards generally applicable over relevant cases. The inherent danger in these circumstances would be to open up the possibility of different treatment of individuals accused of the same conduct, depending on whether or not the State Party in question adheres to a broader or stricter approach to objective territorial jurisdiction.153 From this perspective, it seems that the Court’s territorial jurisdiction would not constitute the manifestation of the Court’s own authority in a single, uniform and generally applicable manner, but rather as an amalgamation of the accumulative whole of 122 (at the moment) State (Party) approaches to territoriality. This outcome would constitute an unsatisfactory approach to the interpretation of the Rome Statute. It would likely jeopardize its integrity by effectively undermining one of its basic principles, namely that ‘the law of the Statute and the Court and its operations are generally autonomous from national legal systems and their laws, except, . . . , with regard to State cooperation’.154 153 154

McAuliffe DeGuzman, ‘Article 21’, above n. 140, 710; W.A. Schabas, An Introduction to the International Criminal Court (4th edn, Cambridge University Press, 2011), 209–210. Sadat, The ICC and the Transformation of International Law, above n. 28, 178, refers to it as ‘the principle of d´elocalisation’, influenced probably by French private international law jurisprudence in this regard. D. Sarooshi, ‘The Role of Domestic Public Law Analogies

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From a more ´etatique point of view, however, are there implications of delegation of authority to take into account, when some States Parties adhere to a more limited interpretation of territorial jurisdiction than others? Consider, for example, that a certain national law does not accept that territorial jurisdiction exists over a crime committed abroad, when only an act of assistance takes place in its territory. Does that entail that the Court is prevented from applying this approach to territoriality, considering that the basis of the Court’s jurisdiction is State consent and delegation of authority?155 From this point of view, the Court is perceived as a treaty-based mechanism to collectively exercise existing State rights, where the scope of delegation is correspondingly affected by any limitations self-imposed by States Parties upon their own authority. In other words, States Parties may only delegate to the Court powers that they actually have and only to the extent that they recognize them.156 Therefore, in light of the fact that certain States Parties may have decided to impose upon themselves limitations in their exercise of territorial jurisdiction, can it be said that the Court, operating on delegation of authority from those same States, may adopt legal solutions which these States themselves do not apply due to such self-limitation? The best answer to this question is probably that a restrictive national law approach to territorial jurisdiction is not in itself decisive for the Court due to the doctrine of delegation. It is not doubted here that the doctrine of delegation underlies the Court’s function to a large extent. However, the power in question is the Court’s capacity as a judicial institution to decide finally any question concerning its own jurisdiction in the interpretation of the Statute. This is a power that is vested in the Court inherently, due to its nature as a judicial institution, rather than due to the delegation of authority by States. Accordingly, issues of delegation are not relevant, because the Court’s comp´etence de la comp´etence stems from the Court’s judicial character. This has been well established, at least ever since the Tadi´c ruling.157 Finally, while a State may not be willing for any number of reasons to exercise such authority itself, it may well delegate its exercise to the ICC.158 This is particularly the case since the fact that a State chooses

155 158

in the Law of International Organizations’, International Organizations Law Review, 5(2) (2008), 238, who notes that a treaty cannot be applied in a different way to Member States depending on their domestic public law. 156 157 See above Section 5.1.2.3. Ibid. Ibid. R. Rastan, ‘The Jurisdictional Scope of Situations before the International Criminal Court’, Criminal Law Forum, 23 (2012), 19–20.

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not to exercise a certain form of its jurisdictional authority through its organs does not necessarily mean either that it loses it, or that it cannot exercise it via another entity.159 Accordingly, it is submitted that this is not an issue of delegation of authority. The Court’s authority to decide on a different interpretation has remained intact and was explicitly recognized in Article 19(1) ICC Statute. The issue is best formulated as a question on the proper weight to award to a certain regulatory choice made by national law and caselaw. As such, the answer would clearly depend on a case-by-case analysis of the legal nature of the overall criminal activity in question. In these circumstances, some tension may be said to exist between the Court’s margin of interpretation, on the one hand, and the precise scope of the jurisdictional authority of the States Parties involved, on the other. In such a borderline situation the Court would need to demonstrate that once created, it does acquire a ‘life’ of its own, and, although not a ‘super-state’, it still retains and puts to good use the prerogative of being the sole arbiter of its jurisdictional authority. Additionally, another critical issue is that national laws generally tend to leave a margin for interpretation to national courts on territorial jurisdiction and opt for general formulations in their criminal statutes.160 National courts, for their part, tend to consider issues of territoriality mostly from the point of view of statutory construction or constitutional limitations, rather than by invoking the application or violation of a certain rule of international law.161 In fact, it is even possible that a national decision, which would otherwise appear useful for deciding a relevant question before the Court, may combine national statutory interpretation and the application of customary rules, or may even cause confusion by presenting a national presumption as a rule of international law or vice versa.162 The usefulness of national law would therefore be diminished, as by merely transplanting national solutions of objective territoriality onto the international plane, without clinically examining the reasoning behind them, the Court might inadvertently adopt by implication a certain, national law presumption/statutory interpretation to territoriality

159 161 162

160 Ibid. See above Section 5.1. Akehurst, ‘Jurisdiction in International Law’, above n. 120, 182–184; For presumptions and constructions, see above Section 4.1. See for example as regards the US Alien Tort Claims Statute, K. Anderson, ‘The Rise of International Criminal Law: Intended and Unintended Consequences’, European Journal of International Law, 20 (2009), 350–351.

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that is not consistent either with its function as an international court, or its objects and purposes.163 This complex situation seems to be mitigated by the stipulation of Article 21(1)(c) that the laws of the States that would ‘normally’ exercise jurisdiction is a source, whose application is left entirely up to the judges, when they consider ‘appropriate’ to do so. This flexible formulation can be read as an indication to the judges that recourse to national legal norms, in order to assess the legality of the Court’s territorial reach, is to be deduced mostly from principles of legal systems, to the extent possible.164 This seems to be reflected in the opinion of the Appeals Chamber that ‘[s]ubparagraph (c) of paragraph 1 of Article 21 of the Statute is a multipolar provision of the law involving in the same spell an amplitude of factors definitive of its subject-matter. Be that as it may, there is little doubt about its basic intent that lies in the incorporation of general principles of law derived from national laws of legal systems of the world as a source of law.’165 In selecting such national approaches, judges will need to be aware of the ‘homeward trend’, i.e. the tendency to apply their own domestic law, when a choice of law is presented before them.166 The next problem is the identification of the process of detection of these general principles of law derived from national laws of legal systems of the world. Obviously, an elaborate exercise in comparative criminal law followed by a process of ‘construction, generalization and logical inference’167 seems inescapable;168 but would it be useful and, more importantly, when would it be enough? 163 164 165

166

167 168

This argument is drawn from ICTY, Prosecutor v. Zoran Kupreˇski´c (Judgment) IT-95–16T (14 January 2000), paras. 540–542, 676–677. McAuliffe DeGuzman, ‘Article 21’, above n. 140, 709; Verhoeven, ‘Article 21’, above n. 140; Pellet, ‘Applicable Law’, above n. 140. Extraordinary Review Appeal, above n. 47, para. 24. It would have been very interesting to see in the Appeals Chamber’s ruling a certain indication as to the ‘factors’ included in the provision. This is a concept developed in private international law. A. Nussbaum, Principles of Private International Law (New York: Oxford University Press, 1943), 37; Akehurst, ‘Jurisdiction in International Law’, above n. 120, 185. Current practice of the Court does offer examples of judicial attachment to certain States’ criminal doctrine. See comments by F. Jessberger, ‘A Substantive Criminal Law Perspective’, in Discussion, Journal of International Criminal Justice, 6 (2008), 778. Prosecutor v. Zoran Kupreˇski´c, above n. 163, para. 677; Vasiliev, ‘General Rules and Principles’, above note 152, at 82–83. F. Raimondo, ‘General Principles of Law as Applied by International Criminal Courts and Tribunals’, The Law and Practice of International Courts and Tribunals, 6(3) (2007), 396, 402; L. Gradoni, ‘L’exploitation des principes g´en´eraux de droit dans la jurisprudence des Tribunaux internationaux p´enaux ad hoc’, in E. Fronza and S. Menacorde (eds.),

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The Appeals Chamber has been confronted with the application of this provision in the Extraordinary Review Appeal – and has apparently demonstrated that reference to an Article 21(1)(c) interpretation is to be a very exceptional occurrence. In a nutshell, the Prosecutor filed an appeal against a decision of the Pre-Trial Chamber denying him leave to appeal a critical ruling, recognizing the circumscribed right of victims to participate in the situation stage of proceedings.169 This appeal was labeled ‘extraordinary’, because it is not provided for in Article 82 of the Statute. The Prosecutor argued that there was a lacuna in the Statute, which should be properly filled by analogy from general principles of national law, and mainly through the principle that higher courts may hear appeals and overrule decisions of lower courts denying them leave to appeal.170 In support of his contention, the Prosecutor produced extensive research from common law, civil and Islamic law jurisdictions as evidence. The Appeals Chamber dismissed the Prosecutor’s application, on the grounds that first, no such general principle could be deduced from the evidence produced and, secondly, that even if such evidence did exist, there was no lacuna in the Statute, as the drafters considered and consciously dismissed the possibility of filing such appeals.171 At the outset, one may only speculate as to why the Appeals Chamber chose to address the subject in this order. After all, if no lacuna actually existed, it would be pointless to engage in the difficult comparative exercise of addressing and dismissing at some length the evidence adduced on the existence of general principles of national law, rather than simply declaring the issue moot. It cannot be excluded, in this context, that the Appeals Chamber wished through this ruling to ‘set the tone’ for the Court’s approach to Article 21(1)(c)172 and discourage similar claims by the Parties (Prosecutor, Defence, Victims).173 The Court’s approach to the Prosecution’s evidence was largely deconstructive. In its consideration of the national laws of the fourteen states of the ‘Romano-Germanic system of justice’, five common law jurisdictions and three Islamic law states invoked by the Prosecutor, the Court proceeded as follows; two civil law states were found not to support his contention (importantly, France and Germany), while for the rest it was said that ‘the modalities for the exercise of this right differ and in large

169 170 172

La Justice P´enale Internationale dans les D´ecisions des Tribunaux ad hoc (Milan: Giuffr`e, 2003), 10,40. Extraordinary Review Appeal, above n. 47, paras. 1–4. 171 Ibid., paras. 3, 21–22. Ibid., para. 32. 173 Ibid., para. 5. Ibid., para. 38.

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measure vary from country to country.’174 As far as the common law countries were concerned, the Court seemed to manoeuvre in familiar waters when it delved into the distinction between ‘complaint motions’, writs of certiorari and mandamus.175 It then drew attention to their exceptional usage in those jurisdictions, before it ultimately dismissed the cited practice, as inapposite to the Court’s system.176 The Court was willing to acknowledge however that ‘what they [the common law jurisdictions referred to] share in common is the corrective character of the jurisdiction.’177 Finally, as regards the Islamic law countries, the Chamber summarily dismissed the practice, stating that they ‘have no uniform rules with regard to review of lower court’s decisions not permitting an appeal by a higher court.’178 The Court subsequently concluded: ‘[I]t emerges from the above that nothing in the nature of a general principle of law exists or is universally adopted entailing the review of decision of hierarchically subordinate courts disallowing or not permitting an appeal. The Appeals Chamber concludes that the Prosecutor’s submission in this respect is ill-founded [emphasis added].’179 If this ruling is to serve as any indication of the threshold for the application of Article 21(1)(c), one could predict that this provision will be of marginal relevance for the Court’s future operation. The most important reason is that the Appeals Chamber has raised the stakes to such a degree by requiring universally adopted national principles of law that it will be very difficult for the litigants or the Court itself to have recourse to them. The Appeals Chamber seems in this regard to have followed the approach of the ICTY where, in the absence of a relevant provision in the Statute, the judges required practically a ‘universal authentication’ standard before admitting the existence of such a principle.180 As such, the Tribunals seem to have accepted the application of general principles in their jurisprudence less often than they probably could.181 From the point of view of the ICC Statute, however, it is submitted that the Appeals Chamber went too far in this ruling. From a literal point of view, Article 21(1)(c) refers to ‘national laws’, ‘legal systems of the world’. The Statute does not expect the production of proof verifying the 174 177 180 181

175 176 Ibid., para. 27. Ibid., para. 27. Ibid., para. 29. 178 179 Ibid., para. 28. Ibid., para. 31. Ibid., para. 32. ICTY, Prosecutor v. Anto Furundˇzija (Judgement) IT-95–17/1-T (10 December 1998), para. 178; Further, Cassese, International Criminal Law, above n. 119, 22–25. Cassese, International Criminal Law, above n. 119, 25.

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existence of a single, universal general principle of national law. Arguably, the purpose of this provision is neither to create/harmonize criminal laws through judicial interpretation, nor to identify rules of universal application in a binding manner for States Parties.182 It rather seems that it is destined to give the Court – similarly to the corresponding provisions of other Statutes183 – the option of selecting the general principles best suited for its purposes among the general principles developed over the years in the criminal justice systems of the world. This would open for the Court more possibilities of interpretation, in order to avoid findings of non liquet due to lacunae in the law.184 In that context, it is submitted that proof of existence of such general principles in any one system would suffice for the purposes of interpretation under Article 21(1)(c). One need not look further than the Erdemovi´c Case.185 There, the mainly common law practice of guilty pleas and plea bargaining was transposed virtually overnight into the emerging system of international criminal law.186 A few years later, it became a standard feature of most international criminal courts,187 notwithstanding the serious issues its application raises as regards the purposes of international criminal justice.188 Arguably, the Court need not attempt to rival the ICTY’s innovative approach in Erdemovi´c. It could be even justified in erring on the side of caution, since its effectiveness largely depends upon the good will and cooperation of states. The best approach, however, would be to strive to find a balance between the approach to national law adopted in Erdemovi´c and that in the Extraordinary Review Appeal. After all, even if the existence of a general principle is proven to exist in a certain family/system of

182 183 184

185 186

187 188

Van der Wilt, ‘Equal Standards?’, above n. 132, 256. Cf. Art. 38(1)(c) of the Statute of the International Court of Justice. Sadat, The International Criminal Court and the Transformation of International Law, above n. 28, 178–179; I. Caracciolo, ‘Applicable Law’, in Lattanzi and Schabas (eds.), Essays on the Rome Statute, above n. 26, 228. ICTY, Prosecutor v. Draˇzen Erdemovi´c (Separate and Dissenting Opinion of Judge Cassese) IT-96–22-A (7 October 1997). Generally, N.A. Combs, Guilty Pleas in International Criminal Law: Constructing a Restorative Justice Approach (Stanford University Press, 2007), 3–4; For one of the best comparative studies on the matter, U. Sieber (ed.), The Punishment of Serious Crimes (Freiburg: Edition Iuscrim., 2004), 1–2, with individual state study reports. Combs, Guilty Pleas, above n. 186, with thorough review at 57. ICTY, Prosecutor v. Miroslav Deronji´c (Judgment) IT-02–61 (30 March 2004) (Dissenting Opinion of Judge Schomburg), paras. 1–10; Further, J.N. Clark, ‘Plea Bargaining at the ICTY: Guilty Pleas and Reconciliation’, European Journal of International Law, 20 (2009), 424–428.

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laws,189 whether or not the Court would revert to it in the discharge of its function is an entirely different matter, subject to the Court’s discretion in the process of interpretation. Therefore, considering the international diversification of criminal law based on each State’s tradition, culture and social values, it is submitted that a better approach would be for the Court to seek solutions under Article 21(1)(c) on a family-by-family/system-bysystem of law basis, rather than by inquiring whether a certain principle is universally accepted. The Statute, by referring to the possibility of employing even a single State’s national system (‘normally exercises jurisdiction’) certainly seems to point in that direction. As an afterthought, it could be mentioned that the Court, under Article 21(1)(c), is directed to look for general principles of law, derived from the main legal systems of the world, rather than to distinguish – and dismiss – the usefulness of one or another legal system, on the basis of ‘the modalities for the exercise of a right’.190 Through this process of interpretation of Article 21(1)(c), one would indeed meet insurmountable difficulties in locating even two national systems capable of supporting the existence of a general principle of law.191 These thoughts are particularly relevant in assessing the limits of objective territorial jurisdiction under the Statute and the use of territorial fictions. It is highly unlikely that the Court will have available a specific rule of customary law delimiting with precision the permissible limits of territoriality. It may have therefore to look for general principles of national laws and even to the application of the national law of the territorial State(s) in question. However, if this ruling of the Appeals Chamber is to be taken at face value, rather than as a slightly over-animated dismissal of a manifestly inadmissible prosecutorial motion, it would mean that there is little chance of ascertaining with any degree of uniformity the limits of the Court’s territorial reach. It would seem highly unlikely that the Court would find the requisite evidence in State practice to prove the existence of a universally accepted principle of criminal jurisdiction on the constructive localization of crime, e.g. on cross-frontier 189 190 191

Raimondo, ‘General Principles of Law’, above n. 168, 401, criticizing the largely antiquated distinction between civil and common law approaches. Extraordinary Review Appeal, above n. 47, para. 27. In this spirit, ICTY, Prosecutor v. Kunarac et al. (Judgment) IT-96–23-T (22 February 2001), para. 439, referring to ‘general concepts and legal institutions’. Compare Prosecutor v. Thomas Lubanga Dyilo (Decision on Witness Familiarization and Witness Proofing), above n. 145, para. 42, which deduced indirectly an ‘general principle’ from an a contrario reading of the Prosecutor’s argument.

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attempts.192 It would rather seem that the threshold imposed by Article 21(1)(c) should be considered met if it is proven that one of the main legal systems of the world adheres to such a principle.

5.5.3 Delimiting the Court’s territorial jurisdiction on the basis of consequences or ubiquity and the application of human rights rules Human rights law may serve multiple purposes for the present discussion. From the point of view of the rights of the accused, it could raise concerns of fair treatment and reasonable expectations, usually aimed to limit jurisdiction taking into account considerations of foreseeability for the accused. From the perspective of the victims, a human rights interpretation would involve an expansive interpretation of the Statute, ensuring that no impunity follows the commission of crimes against them and their families. This part approaches territorial jurisdiction mainly from the perspective of the rights of the accused. As indicated above, Article 21(3) mandates that internationally recognized human rights have an important role to play, particularly as an instrument of interpretation.193 A significant caveat in using human rights law is that there is scant jurisprudence on the point of human rights violations due to unlawful assumptions of jurisdiction. Human rights treaties do not provide for a human right to be tried by, e.g., the territorial State or State of nationality of the perpetrator.194 Therefore, jurisdiction as such cannot be raised in principle as a human rights complaint.195 Additionally, monitoring organs are generally reluctant to pass judgment on an issue that is probably felt to lie at the margins of their overseeing competence, taking into account the subsidiary role that these institutions reserve for themselves.196 Therefore, consideration of issues of jurisdiction before 192

193 194 196

C. Ryngaert, ‘Territorial Jurisdiction over Cross-Frontier Offences: Revisiting a Classic Problem of International Criminal Law’, International Criminal Law Review, 9(1) (2009), 202–209. See above Section 3.2. 195 Reydams, Universal Jurisdiction, above n. 109, 17. Ibid. Z. et al. v. UK (App. No. 29392/95) ECHR 10 May 2001, para. 103. Further, R.C.A. White and C. Ovey, The European Convention on Human Rights (5th edn, Oxford University Press, 2010), 215–217; R. Lawson, ‘Interaction between National Judiciary and the European Court of Human Rights: Subsidiarity, Co-operation and Supervision’, in Netherlands Ministry of Foreign Affairs, Report of the Seminar: Implementation of Human Rights. The Efficiency of Justice in the Council of Europe and its Member States (The Hague:

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international human rights courts seems to be incidental and limited to cases of flagrant violations. As far as the interpretation and application of Article 12(2)(a) is concerned, under Article 21(3) the main issue concerns the rights of the accused as a barrier to extensive judicial interpretation of the Court’s jurisdiction. The question here is the following: do the rights of the accused impose any legal standards against which the latitude for judicial interpretation of jurisdictional provisions under the Court’s kompetenz kompetenz should be measured and possibly even restrained? An answer to this question, influenced particularly by the jurisprudence of the ECtHR, may be formulated in certain main points. First, this issue is not regulated by the principle of legality, as mirrored in Article 7 ECHR, for example. This has been explicitly confirmed in an obiter dictum of the (ECtHR) in Ould Dah v. France.197 In that case, the ECtHR observed that, while the applicant did not contest the exercise of universal jurisdiction by the French authorities, this was in any event a question that did not raise issues under Article 7 ECHR.198 The consequence of the non-applicability of the principle of legality is that the notions of ‘foreseeability’ and ‘accessibility’ do not apply to questions of jurisdiction. This is a well-known test of judicial notice, developed in the framework of substantive criminal law, according to which a rule of law should be ‘foreseeable and accessible’ to the accused,199 subject to a certain margin for judicial interpretation.200 In Ould Dah, the ECtHR did not examine the argument of the applicant that the accused could not ‘know’ a rule of jurisdiction in a language he does not understand, but rather emphasized the international nature of the offence (torture).201 Thus, predictability of a certain interpretation of rules of jurisdiction by

197 198

199

200 201

NJCM, 2004), 61–67; M.E. Villiger, ‘The Principle of Subsidiarity in the European Convention on Human Rights’, in M. Kohen (ed.), Promoting Justice, Human Rights and Conflict Resolution Through International Law: Liber Amicorum Lucius Caflisch (Leiden: Martinus Nijhoff, 2007), 625. Ould Dah v. France (App. No. 13113/03) ECHR 17 March 2009, 264. Ibid., ‘La Cour note e´ galement que le requ´erant ne conteste pas la competence des juridictions franc¸aises, question qui ne rel`eve au demeurant pas de l’Article 7 de la Convention . . . ’. Indicatively, Sunday Times v. United Kingdom (App. No. 65387/74) ECHR 26 April 1979, 2 EHRR 245, para. 49; most recently, the relevant principles of the ECtHR case-law are provided in the Chamber’s ruling in Kononov v. Latvia (App. No. 36376/04) ECHR 17 May 2010, paras. 113–115. C. R. v. United Kingdom, 21 EHRR 363, 22 November 1995, para. 34. In Ould Dah, above n. 197.

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the accused is not required.202 Accordingly, an accused cannot escape ICC jurisdiction on the argument that a certain interpretation of the Court’s jurisdiction was not known or foreseeable to him/her, under international human rights law and Article 21(3) of the Statute. Secondly, the applicable law to decide such issues is the right to a fair trial and the right not to be subjected to arbitrary arrest or detention. The ECtHR has explained that ‘[i]f a tribunal does not have jurisdiction to try a defendant, in accordance with the provisions applicable under domestic law, it is not “established by law” within the meaning of Article 6 §1’.203 The main reason for this conclusion is that an inappropriate assertion of jurisdiction on the part of national courts would signify a corresponding violation of national laws relating to the establishment and operation of a judicial system. This negates in turn the principle of the ‘rule of law’ underlying the right of the accused under Article 6(1) to be tried ‘by a tribunal established by law’.204 In this context, it is worth noting that rules of jurisdiction as rules of procedure205 need to be laid down by law, in accordance with the maxim nullum judicium sine lege,206 although not in detail.207 The treatment of such cases under the right to a fair trial is also followed by the jurisprudence of the Inter-American Court of Human Rights in its interpretation of the requirement of trial by a ‘competent tribunal’ under Article 8(1) of the Pact of San Jos´e.208 As regards arrest and detention, human rights law provides generally that the deprivation of liberty of a person must be reviewed by a ‘competent’ judicial authority.209 Under Article 5 ECHR and Article 7 202 203 205 206 207

208

209

For this conclusion from a different perspective, Wolswijk, ‘Locus Delicti and Criminal Jurisdiction’, above n. 41, 381. 204 Jorgi´c v. Germany (App. No. 74613/01) ECHR 12 July 2007, para. 64. Ibid. Jurisdictional Immunities of the State (Germany v. Italy, Greece Intervening) [2012] ICJ Rep. 1, para. 93 and Section 4.4. Co¨eme et al. v. Belgium (App. Nos. 32492/96, 32547/96, 32548/96, 33209/96, 33210/96) 2000-VII ECHR 75 (Judgment of 22 June 2000), para. 102. Provision of the basic organization framework suffices. Zand v. Austria (App. Nos. 7360/76) ECHR Report of the Commission, 12 October 1978, 26, para. 69, Sokurenko and Strygun v. Ukraine (App. Nos. 29458/04, 29465/04) ECHR 20 July 2006, paras. 23–25. Inter-American Court of Human Rights, Loayza-Tamayo v. Peru, Merits, Judgment (Ser. C) No. 33, para. 61 (17 September 1997); Inter-American Court of Human Rights, Ivcher-Bronstein v. Peru, Judgment (Ser. C) No. 74, para. 109 (6 February 2001). Art. 9 of the International Covenant on Civil and Political Rights, 16 December 1966 (entered into force 23 March 1976), 999 UNTS 171, (1967) 6 ILM 368 and Office of the High Commissioner for Human Rights, General Comment No. 8: Right to Liberty and Security of Persons (Article 9), 16th Sess., 30 June 1982, para. 1; Art. 5 of the European Convention on Human Rights, 4 November 1950 (entered into force 3 September

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American Convention on Human Rights (ACHR), a court is considered ‘competent’, if it has jurisdiction to review the defendant’s detention under national law.210 Monitoring bodies have been generally reluctant to examine the interpretation of jurisdictional provisions of national courts in such cases,211 unless the lack of authority under national law is manifest.212 Thirdly, the relevant yardstick to measure the legality of interpretation and application of jurisdiction has been encapsulated in the promulgation of a standard of ‘reasonableness’ from the perspective of the right to a fair trial. Although the precise meaning of this standard fluctuates, it points to the absence of arbitrariness. From the perspective of the ECHR, ‘reasonableness’ signifies justification of jurisdictional assertions upon ‘reasonable grounds’. This conclusion is deduced from decisions of the European Commission213 and recently from the reasoning of the European Court of Human Rights in the Jorgi´c v. Germany Case.214 This was a case of

210

211

212 213

214

1953), 213 UNTS 221, CETS 5; Art. 7 of the American Convention on Human Rights, 22 November 1969 (entered into force 18 July 1978), 1144 UNTS 123 (1970) 9 ILM 673. D.J. Harris et al., Law of the European Convention on Human Rights (2nd edn, Oxford University Press, 2009), 139 with references; Y. Arai and P. van Dijk et al. (eds.), Theory and Practice of the European Convention on Human Rights (4th edn, Antwerp: Intersentia, 2006), 466; H. Tigroudja and I. K. Panoussis, La Cour Interam´ericaine des Droits de l’Homme (Brussels: Bruylant, 2003), 204–206. For Art. 5(3) of the European Convention of Human Rights, in particular, the same notion exists in the word ‘judge or officer authorized by law to exercise judicial power’ for the purposes of reviewing pre-trial detention. Indicatively, Aquilina v. Malta (App. No. 25642/94) ECHR 29 April 1999. S. Trechsel, Human Rights in Criminal Proceedings (Oxford University Press, 2005), 440. From case-law, R. v. Federal Republic of Germany (App. No. 11506/85) ECHR, Commission Decision of 10 October 1986 (the Majdanek Concentration Camp Case). Further, X. v. Austria (App. No. 4161/69), Yearbook of the European Convention on Human Rights (1970), 798, 804. Ireland v. United Kingdom (App. No. 5310/71) ECHR 18 January 1978, para. 199 (on the Advisory Committee under Art. 5(3) ECHR). In the first case where the expression ‘reasonable grounds’ was used, G. v. Switzerland (App. No. 16875/90) ECHR, Commission Decision of 10 October 1990 (‘reasonableness’ present due to facts of the case and procedural economy); further, K¨ubli v. Switzerland (App. No. 17495/90) ECHR, Commission Decision of 2 December 1992 (such ‘reasonable grounds’ existed in determining jurisdiction ratione materiae on the basis of the principle perpetuatio fori). Note from Art. 5 jurisprudence, R v. Federal Republic of Germany (App. No. 11506/85), ECHR, Commission Decision of 10 October 1986, where the Commission rejected such complaints on the grounds that four different national courts had already dealt with the issue. Jorgi´c v. Germany, above n. 203.

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universal jurisdiction over genocide and its exercise under international and human rights law. The assessment of ‘reasonableness’ in Jorgi´c consisted mainly of an examination of the appropriateness of the process of interpretation followed by German courts. The Court examined the priority afforded by German courts to instruments of interpretation under Article 31 VCLT over preparatory works, as well as their assessment of the legal nature of the criminal offence and the development of universal jurisdiction over genocide in national and international case-law.215 The Court concluded that ‘the German courts’ interpretation of the applicable provisions and rules of public international law, in the light of which the provisions of the Criminal Code had to be construed, was not arbitrary. They therefore had reasonable grounds for establishing their jurisdiction to try the applicant on charges of genocide.’216 The ‘reasonable grounds’ relied on by earlier case-law seem to be even more case-specific.217 From the point of view of national courts, due process rights also require a ‘reasonable’ assertion of jurisdiction. In drug trafficking and extradition cases before US Courts, for example, the argument has been raised that the exercise of extraterritorial jurisdiction violated the ‘due process’ rights of the accused. In particular, it has been argued that the defence may suffer violations of its due process rights as a result of trial before foreign – not the territorial State’s – courts, as regards, for example, summoning and presenting witnesses from another country and familiarity with the applicable law.218 Such claims are usually dismissed as unfounded on the facts.219 In those cases, the critical test appears to have been one of ‘sufficient nexus’ between the defendant and the United States, where the precise nature of the nexus varies on a case-by-case basis.220 The test has been applied extensively in subsequent case-law on drug smuggling and extradition, with, however, fluctuations as to its precise scope and meaning.221 Germany seems to have also followed this approach in 215 217 218 219 220

221

216 Ibid., paras. 65–70. Ibid. para. 70. In G. v. Switzerland, above n. 213, K¨ubli v. Switzerland, above n. 213. US v. Yousef, 327 F.3d 56, 112 (2nd Cir., 2003); Sawoniuk v. United Kingdom (App. No. 63716/00) ECHR 2001-III, 29 May 2001. Ibid. US v. Davis, 905 F.2d 245, 248 (9th Cir., 1990) (‘nexus’ present because the attempted transaction was aimed at causing criminal acts within the United States); US v. Peterson, 812 F.2d 486, 493 (9th Cir., 1987) (‘nexus’ available from the facts of the case, i.e. the course of the smuggling ship and its listing as a vessel suspected of drug trafficking). US v. Caicedo, 47 F.3d 370, 372 (9th Cir., 1995); US v. Kahn, 35 F.3d 426, 429 (9th Cir., 1994); US v. Klimavicius-Viloria, 144 F.3d 1249, 1257 (9th Cir., 1998); US v. Yousef, above

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its pleadings before the ECtHR in Jorgi´c. It sought to justify its exercise of jurisdiction at least in part on the applicant’s long-term residence in Germany and his arrest on German territory.222 Ultimately, the right to a fair trial should not be used to allow forum shopping in criminal cases. The ECtHR has clearly stated that ‘Article 6 [ECHR] does not grant the defendant a right to choose the jurisdiction of a Court.’223 In assessing the usefulness of these rulings for the ICC, certain caveats should be articulated. Many of the critical cases (Jorgi´c, Ould Dah) concern the permissible exercise of universal criminal jurisdiction, rather than territorial jurisdiction. Additionally, in these cases issues of jurisdiction were not clearly raised by the applicants. The ECHR’s position is thus explained through obiter dicta and parts of its reasoning easily reversible in the future. Furthermore, the reasoning of the ECtHR is to a large extent circumscribed by its own perception of its ‘subsidiary’ role in the assessment of national judgments applying national law. This renders its intervention possible only when the Convention requires respect of national law and when there is a ‘flagrant violation’ of that law.224 This approach may not necessarily be shared by the judges of the ICC in the context of the interpretation of the Court’s jurisdiction. While there may exist parallels between the ‘subsidiary’ monitoring system of the European Convention and the ‘complementary’ system of the ICC,225 these may be relevant concerns in addressing admissibility, rather than territorial jurisdiction.226 Finally, the applicable legal standard or ‘reasonableness’

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n. 218. C. Norchi and L. Brilmayer, ‘Extraterritoriality and Fifth Amendment Due Process’, Harvard Law Review, 105 (1991–1992), 1233, 1260; A.J. Colangelo, ‘Constitutional Limits on Extraterritorial Jurisdiction: Terrorism and the Intersection of National and International Law’, Harvard International Law Journal, 48 (2007), 158, 163, who notes in particular the discrepancies in the approach of different Circuits to this test, ranging from different interpretations to its outright rejection. Jorgi´c v. Germany, above n. 203, para. 60. 224 Ibid., para. 65. Ibid., para. 65. For the similarities between the two approaches, Schabas, An Introduction to the International Criminal Court, above n. 153, 191 and Villiger, ‘The Principle of Subsidiarity’, above n. 196, 623–624; for their differences, R.J. Rychlak and J.M. Czarnetsky, ‘The International Criminal Court and the Question of Complementarity’, Third World Legal Studies (2000–2003), 15, 130. On the distinction between jurisdiction and admissibility, Schabas. An Introduction to the International Criminal Court, above n. 153, 62–63, 187–189; Blakesley, ‘Jurisdiction Ratione Personae’, above n. 38, 436; note that under Rule 58 (4) of the Court’s Rules of Procedure, the ICC must first satisfy itself as to its jurisdiction and only subsequently examine admissibility objections.

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may be subjected to the usual criticism of vagueness accompanying such generic concepts in law.227 That said, human rights jurisprudence indicates that the interpretation of jurisdictional norms is more flexible than that of substantive rules. The critical test is that an interpretation of a rule of jurisdiction must be ‘reasonable’. In assessing such ‘reasonable’ assertions, prior knowledge or predictability by the accused is not required, lest it lead to criminal forum shopping. The exercise seems to focus on the facts of each case and the legal justification of the particular jurisdictional rule on the basis of national and international law. The quest is for a ‘reasonable connection’ between the defendant and a State’s authority. Ultimately, it would seem that the ICC would be well justified in resorting to an assessment of ‘reasonableness’ of its jurisdiction under human rights law. The precise indicia of such ‘reasonableness’ will need to be articulated by the Court. For the purposes of the ICC, ‘reasonableness’ may involve an examination of the existence or absence of ‘connecting links’, including the location and character of the activity, the presence of the accused or possibly residence as suggested by national courts. Equally, it may be a legal analysis, similar to that performed by the ECtHR, referring to other national laws and interpretations, judicial decisions and international treaties; or, conceivably, it may constitute a holistic combination of both.

5.6 Localization of crimes committed over the internet The previous parts of this chapter considered the normative framework surrounding the localization of criminal activity under the ICC Statute, the concept of ‘conduct in question’ and the ingredients for its interpretation. However, this examination would remain incomplete today, without a brief exposition of a question that is increasingly likely to trouble the Court in the near future; the use of the internet for the commission of 227

For criticism on the notion of ‘reasonableness’ and analysis, J. Velu and R. Ergec, La Convention Europ´eenne des Droits de l’Homme (Brussels: Bruylant, 1990), 441, n. 519 – ‘s’il est un concept a` contenu variable, r´efractaire a` toute approche dogmatique, c’est bien celui de ‘raisonnable’”; further, N. MacCormick, ‘On Reasonableness’, in C. Perelman ´ and R. Vander Elst, Les Notions a` Contenu Variable en Droit: Etudes, Travaux du Centre National de Recherches de Logique (Brussels: Bruylant, 1984), 131–156; J. Salmon, ‘Le concept de raisonnable en droit international public’, in D. Bardonnet et al., M´elanges Offerts a Paul Reuter: Le Droit International. Unit´e et Diversit´e (Paris: Pedone, 1981), 448–478.

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ICC crimes and its impact on the application of Article 12(2)(a) of the Rome Statute. The main question may be formulated as follows: under what conditions can a certain crime, which is committed online, be said to be constructively or otherwise localized within State Party territory and thus fall within the territorial jurisdiction of the ICC under Article 12(2)(a) of the Rome Statute? To date, there is no ICC practice on the matter. On the State level, there is a definite increase in State practice on similar issues, although it is debatable whether the practice is uniform and consistent enough in the specifics of its application.228 In this context, it may be that the significance of State practice for the ICC may rest more in the methodological approach of national judges to these issues, as opposed to the variety of the actual substantive findings of law. It is therefore important for the ICC to first identify the general approaches available in addressing internet-related crimes before turning to the application of territoriality. Two main schools of thought on the matter may be identified. Certain authorities have considered that internet crimes involve new elements, that require new solutions in terms of criminal jurisdiction. These new elements include first of all internet’s ‘global electronic interconnectedness . . . , which produces the unique effect that it exists, operates and is used both in one state at a time and simultaneously in all states’.229 Moreover, the internet and the world wide web are said to have an impact on both criminal conduct and its consequences. On the one hand, they have made possible the remote commission of crimes by no more physical activity than typing. On the other, there is real potential of unintended (by the perpetrator) spill-over effects of originally territorially limited criminal activity to a large number of States. Once certain activity takes place online, its potential global dissemination can hardly be excluded and therefore it ‘runs the risk of jurisdiction in every country with internet access’.230 Consequently, the proponents of this approach revived the discussion on the minimum contact required for a State to exercise jurisdiction over a crime, in light of the absence of universal harmonization of substantive and procedural 228 229 230

See in detail on this point below in Section 5.6.2.1 et seq. T. Scassa and R.J. Currie, ‘New First Principles? Assessing the Internet’s Challenges to Jurisdiction’, Georgetown Journal of International Law, 42(4) (2011), 1021. R. Michaels, ‘Territorial Jurisdiction after Territoriality’, in P.-J. Slot and M. Bulterman (eds.), Globalisation and Jurisdiction (The Hague: Kluwer Law International, 2004), 118.

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criminal law.231 They argued that territoriality is ill-suited for the exercise of jurisdiction over the internet – an a-territorial phenomenon232 – and proposed many innovative ideas233 and various models234 to address it. The other school of thought – composed mostly of judges and legislators – was not equally impressed. Arguably, they considered that the use of the internet is simply another way of remote commission of a crime, since the perpetrator is usually not situated in the same location where the crime or its effects manifest.235 Consequently, far from adopting innovative solutions, they approached this phenomenon largely on the basis of classic interpretations of territorial jurisdiction.236 National prosecutions on internet-related offences indicate, moreover, a refusal to generally transpose the refinement of private law jurisdictional principles into civil internet disputes in criminal cases.237 The second school of thought seems to have largely prevailed, if national law, case-law and treaties are any indication.238 As a result, the discussion today appears to have lost much of its initial flair for innovation and reverted to classic concepts of territorial jurisdiction.239 231 232

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236 237 238 239

U. Kohl, Jurisdiction and the Internet (Cambridge University Press, 2007), 253 et seq. Kohl, Jurisdiction and the Internet, above n. 231, 108–110. K.A. Gable, ‘Cyber-Apocalypse Now: Securing The Internet Against Cyberterrorism and Using Universal Jurisdiction as a Deterrent’, Vanderbilt Journal of Transnational Law, 43(1) (2010), 100–104 (explaining the technical difficulties surrounding the localization of internet activity). J. Kulesza, International Internet Law (London: Routledge, 2012), 15. D.R. Johnston and D. Post, ‘Law and Border: The Rise of Law in Cyberspace’, Stanford Law Review, 48 (1996), 1367; N.K. Katyal, ‘Criminal Law in Cyberspace’, University of Pennsylvania Law Review, 149(4) (2001), 1003; Michaels, ‘Territorial Jurisdiction after Territoriality’, above n. 230, 128–129. For universal jurisdiction over cybercrime, K.A. Gable, ‘Cyber-Apocalypse Now’, above n. 232, 107–108 (piracy analogy). For a good overview of the theoretical models and a critical analysis of some of the main solutions advanced, K.A. Meehan, ‘The Continuing Conundrum of International Internet Jurisdiction’, Boston College International and Comparative Law Review, 31(2) (2008), 353–367. M. Hirst, Jurisdiction and the Ambit of the Criminal Law (Oxford: Oxford University Press, 2003), 187. S.W. Brenner, ‘Cybercrime Metrics: Old Wine, New Bottles?’, Virginia Journal of Law and Technology, 9 (2004), 24–25. S. Brenner and B.-J. Koops, ‘Approaches to Cybercrime Jurisdiction’, Journal of High Technology Law, 4 (2004), 6. Kohl, Jurisdiction and the Internet, above n. 231, p. 96; J. Clough, Principles of Cybercrime (Cambridge University Press, 2010), 411–412. See below Section 5.6.2.1 et seq. See C. Reed, Internet Law: Text and Materials (2nd edn, Cambridge University Press, 2004), 218; J. Goldsmith, ‘Unilateral Regulation of the Internet: A Modest Defence’, European Journal of International Law, 11 (2000), 136 et seq.

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In adjudicating internet-related crimes, national case-law indicates a two-pillar methodology. The first is the interpretation of the specific offence at hand. National judges seem to attach particular gravity to the construction of the criminal conduct, including also the nature of the crime, in order to explain its localization.240 The second consideration is the interpretation of territorial jurisdiction under domestic criminal law. The concepts of subjective territoriality, in the sense of jurisdiction of the State where the activity commenced (country-of-origin), and objective territoriality, justifying jurisdiction of the State where the activity culminated or manifested (country-of-destination) in whole or in part, inform the relevant analysis.241 In this context, more inspired judges have also searched for substantial links between the offence and the State exercising territorial jurisdiction.242 Evidently, there is a close connection between these two pillars. The jurisdictional outcome will likely vary, depending on each national judge’s understanding of the ‘act’ in question and the applicable variant of territoriality.243 As regards the ICC, this approach may well be of service. That said, however, the ICC’s approach to such cases may also be influenced by the degree to which issues that troubled national judges will affect the Court’s function. It may be that the Court is in a legally better position than national courts to deal with such cases. For one thing, problems relating to lack of harmonization of criminal law will likely not arise, as the jurisdiction of the Court is circumscribed by the Statute.244 For another, jurisdictional conflicts may well raise question marks, but these 240 241

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See in detail in Section 5.6.2.3. One of the best examples the R. v. Governor of Brixton Prison, ex parte Levin, [1997] QB 65 (Court of Appeals) 82. Kohl, Jurisdiction and the Internet, above n. 231, 96–102; M. Hayashi, ‘Objective Territorial Principle or Effects Doctrine? Jurisdiction and Cyberspace’, in C. Focarelli (ed.), Le Nuove Frontiere del Diritto Internationazionale: Attori non Statalui, Spazio Virtule, Valori Fondamentali e Governo Multinazionale di Territori (Perugia: Morlacchi, 2008), 285 et seq; Clough, Principles of Cybercrime, above n. 237, 406–408, with references to Australian law. In re T¨oben; Decision of the Federal Court of Justice (BGH), Urt. v. 12.12.2000 – 1 StR 184/00, reported in 54(8) NJW (2001) under D.II.4; R. v. Sheppard and Whittle, [2010] EWCA Crim 65 (Court of Appeal, Criminal Division, England) (29 January 2010), paras. 20–21, 34–35. C. Wong, ‘Criminal Jurisdiction over Internet Crimes’, in G. Hohloch (ed.), Recht und Internet (Baden-Baden: Nomos, 2001), 94, 98. This does not exclude the possibility of conflict with State not Party legislation, particularly as regards crimes that are not part of customary law but have been included in the ICC Statute.

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will be admissibility issues for a case.245 By the same token, enforcement considerations should be divorced from the assessment on jurisdiction. The ICC system, similar to many national systems,246 is not a ‘right of might’-driven system;247 the existence of ICC jurisdiction does not depend upon its actual or possible future enforcement. Although custody of the suspect was proposed as a precondition to the exercise of jurisdiction in the Rome Conference, it was not adopted.248 Finally, as examined in detail above, there is no human right to choice of jurisdiction in criminal cases before the ICC. Articles 22–24, encapsulating the principle of legality, do not apply to questions of jurisdiction before the Court; and even if the principle of legality applies in some guise under Article 21(3), its meaning cannot have the effect of amending the Statute by adding a choice-of-jurisdiction clause.249 Issues of foreseeability – in the sense of whether prosecution before the ICC was foreseeable for the suspect at the time of the commission of the crimes – are therefore not relevant for this discussion.250 In light of these considerations, the Court may well be justified in taking a different approach to internet-related crimes, one that focuses less on the nature of the crime and more on the interpretation of territoriality. This remains to be seen. Having outlined broadly the importance of this question for the ICC and the main approaches available, it is time to turn to the substantive analysis of the relevant legal issues. Accordingly, Section 5.6.1 will discuss the distinction between internet crimes or ‘cyber-crimes’ and crimes committed over the internet. In Section 5.6.2, the question of the minimum contact between internet activity and State territory for the purposes of asserting territorial jurisdiction under national case-law will be addressed. 245

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247 248 250

Prosecutor v. William Samoei Ruto et al. (Judgment on the Appeal of the Republic of Kenya against the Decision of Pre-Trial Chamber II of 30 May 2011 entitled ‘Decision on the Application by the Government of Kenya Challenging the Admissibility of the Case pursuant to Article 19(2)(b) of the Statute’) ICC-01/09–01/11–307 (30 August 2011), para. 46. ´ LICRA et Union des Etudiants Juifs de France v. Yahoo! Inc. et Yahoo.Fr, Tribunal de Grande Instance de Paris, Ordonnance de R´efer´e, No. RG:00/05308, rendue le 20 nov´embre 2000, 4; Dow Jones v. Gutnick (Austr. 2002), 210 CLR 575, 628–629. Further, Y. Timofeeva, ‘Worldwide Prescriptive Jurisdiction in Internet Content Controversies: A Comparative Analysis’, Connecticut Journal of International Law, 20(2) (2005), 208–210. The classification belongs to Kohl, Jurisdiction and the Internet, above n. 231, 109–110. 249 See above Chapter 3 and Section 3.4 in detail. See above Section 4.4. Ibid. Also see below under Section 5.6.1 concerning cybercrimes as crimes under the ICC Statute.

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Finally, the main legal issues will be summarized in Sections 5.6.3 and 5.6.4 and further clarified through the presentation of an example: ICC jurisdiction over the online commission of the crime of incitement to genocide.

5.6.1 Cybercrimes and crimes committed through the internet as Rome Statute crimes Criminal activity committed through the internet is usually classified in legal theory in certain categories. The most important one for the present purposes is the distinction between ‘content crimes’ and ‘cybercrimes’.251 Content crimes are considered to be ordinary crimes committed through the internet, including also modes of responsibility; such cases would include, for example, child pornography,252 fraud, or transnational speech offences.253 They are criminal activities with an additional international element due to the nature of the medium. Such crimes are usually mentioned as ‘content crimes’, apparently because the criminal activity rests on the nature of the content of a statement or picture made available or disseminated online.254 On the other hand, the advent of the internet has led to new manifestations of criminal activity that are said to be particular to the nature of the instrument, such as intentional access to the whole or part of a computer system without right (‘hacking’) or the destruction of computers or computer systems by the creation and circulation of a computer ‘virus’.255 These are generically referred to as ‘cyber-crimes’.256 For the purposes of the present chapter the classifications on ‘content’ or ‘cybercrimes’ will not be followed. The reasons are many. Critically, 251

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This classification, said to be mostly of US origin, is probably manifested in the 2001 Cybercrime Convention. See Arts. 2–9 of the Convention on Cybercrime, Council of Europe, 185 European Treaty Series (23 November 2001), entered into force 1 July 2004. Art. 9 of the Convention on Cybercrime, above n. 25. Wong, ‘Criminal Jurisdiction over Internet Crimes’, above n. 243, 105. Timofeeva, ‘Worldwide Prescriptive Jurisdiction in Internet Content Controversies’, above n. 246, 200 et seq. Arts. 2–8 of the Council of Europe’s Cybercrime Convention describe as crimes under the rubriques ‘substantive criminal law’ and ‘computer-related offences’ acts such as illegal access (Art. 2), illegal interception (Art. 3) and data interference (Art. 4). E.S. Podgor, ‘Cybercrime: National, Transnational, or International?’, Wayne Law Review, 50(1) (2004), 97 et seq.

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there is no generally accepted definition of a ‘cybercrime’.257 The term is used interchangeably with ‘computer crime’, or ‘network crime’, to name a few.258 It can be seen as ‘a generic term used to describe the role of technology in the commission of crimes.’259 It remains doubtful therefore whether the term ‘cybercrime’ indicates a class of criminal conduct causing socially intolerable harm distinct from ordinary crimes that merits separate criminalization,260 or whether this is simply ‘the commission of old crimes by new methods’.261 Moreover, the distinction itself between the two classes of crimes is not universally accepted. For example, recent studies suggest that the notion of ‘cybercrime’ in the 2001 Cybercrime Convention should be construed as including both ‘offences against computer data and systems’, as well as ‘offences committed by means of computer data and systems’.262 The only classification that is of consequence for the ICC – and the present analysis – is whether the online activity in question amounts or contributes to the commission of a ‘crime’ codified in the Rome Statute. Therefore, whether we are dealing with, e.g., the online publication of a statement inciting genocide (a ‘content’ crime) or the unnecessary destruction of enemy property due to an electronic attack with a virus (a ‘cybercrime’), the question concerns the localization of a crime under 257

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N.W. Cade, ‘An Adaptive Approach for an Evolving Crime: The Case for an International Cyber Court and Penal Code’, Brooklyn Journal of International Law, 37(3) (2012), 1145– 1146 with references. Among others, for example, H.W.K. Kaspersen, ‘Jurisdiction in the Cybercrime Convention’, in B.-J. Koops and S.W. Brenner (eds.), Cybercrime and Jurisdiction: A Global Survey (The Hague: T.M.C. Asser Press, 2006), 9. Contra, Podgor, ‘Cybercrime: National, Transnational, or International?’, above n. 256, 102. R.W. Downing, ‘Shoring Up the Weakest Link: What Lawmakers around the World Need to Consider in Developing Comprehensive Laws to Combat Cybercrime’, Columbia Journal of Transnational Law, 43(3) (2005), 711. J. Clough, ‘The Council of Europe Convention on Cybercrime: Defining Crime in a Digital World’, Criminal Law Forum, 23(4) (2012), 371. See S.W. Brenner, ‘Cybercrime Metrics: Old Wine, New Bottles?’, Virginia Journal of Law and Technology, 9 (2004), 24–25 et seq.; further, Public Prosecutor v. Muhammad Nuzaihan bin Kamal Luddin, [2000] SLR 34 (High Court of Singapore), para. 18. Brenner, ‘Cybercrime Metrics’, above n. 260. For a ‘technologically neutral approach’, Art. 4 of the Chinese Computer Information Network and Internet Security, Protection and Management Regulations (1997), which provides that “No unit or individual may use the Internet . . . to take part in criminal activities”.’ U.J. Orji, ‘An Analysis of China’s Response to Cybersecurity’, Computer and Telecommunications (2012), 214. Council of Europe, Committee of Experts on the Evaluation of Anti-Money Measures and the Financing of Terrorism, Criminal Money Flows on the Internet: Methods, Trends and Multi-Stakeholder Counteraction, 38th Plenary Meeting (9 March 2012), 6.

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the Rome Statute, when such crime is committed in whole in part via the internet. It has been argued that a strict interpretation of the definitions of the crimes contained in the Rome Statute is required by the principle of legality and therefore computer or cyber-crimes may fall beyond the Court’s reach ratione materiae.263 While this is a topic of separate research that cannot take place here, this argument is not considered convincing, for a number of reasons. First, most of the definitions of the Rome Statute are formulated broadly enough to be ‘technologically neutral’,264 i.e. include commission of crimes by electronic means, since they do not, with very few exceptions, distinguish between the instrument used in the commission of certain conduct.265 In some provisions, this is even explicit.266 Secondly, as it has been clearly explained in the context of ‘ordinary’ cyber/computer crime, such crimes can be abstracted to more general crimes, particularly when the electronic activity presents a risk to human life.267 The same can be argued for the Rome Statute.268 It is telling that in the implementation of the 2001 Cybercrime Convention, certain States appear not to have adopted separate criminal statutes for certain specific form of internet-related criminality, but choose to address them from the perspective of their general criminal code.269 But even beyond the 2001 Convention, judges encountered no difficulties from the perspective of the principle of legality under national law in convicting cybercriminals by construction of ‘ordinary’ criminal statute.270 Precisely 263

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S.R. Stevens, ‘Internet War Crimes Tribunals and Security in an Interconnected World’, Transnational Law and Contemporary Problems, 18 (2009), 680–682; D. Brown, ‘A Proposal for an International Convention to Regulate the Use of Information Systems in Armed Conflict’, Harvard International Law Journal, 47(1) (2006), 212–213. This is a well-known legislative technique used in national law, Downing, ‘Shoring Up the Weakest Link’, above n. 258, 716–719. Art. 8(2)(xvii) on poison and poisoned weapons. Art. 8(2)(b)(v), attack by ‘whatever means’. Kaspersen, ‘Jurisdiction in the Cybercrime Convention’, above n. 257, 18–19. Podgor, ‘Cybercrime: National, Transnational, or International?’, above n. 256, 105. Particularly for computer forgery and computer fraud, in France, Albania, Bulgaria, the Netherlands and Slovakia. L. Picotti and I. Salvadori, National Legislation Implementing the Convention on Cybercrime, Council of Europe, Project on Cybercrime, Discussion Paper (28 August 2008), 6, 69, available at www.coe.int/t/DGHL/ cooperation/economiccrime/cybercrime/Documents/Reports-Presentations/567% 20study2-d-version8%20 28%20august%2008.pdf (last accessed 10 February 2013). Podgor, ‘Cybercrime: National, Transnational, or International?’, above n. 256, 101, n. 25; R. Chacon de Albuquerque, ‘Cybercrime and Jurisdiction in Brazil: From Extraterritorial

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to avoid such difficulties arising from the rule of double criminality in extradition treaties for computer-related offences, states have amended such treaties. Thus, extradition depends on the penalty attached to the conduct, irrespective of whether or not the offence is described by the same terminology in both States’ laws.271 Moreover, it is one thing to accept that the principle of legality as included in Articles 22–24 of the Statute mandates a strict interpretation of the crimes at hand;272 it is quite another to suggest that legality requires instrument-specific definitions of crimes. While the situation may be different for instrument-specific conduct crimes,273 the emphasis of legality rests on the foreseeability of the criminal treatment for a prescribed crime, not necessarily the instrument used. As Gallant points out, the issue is whether ‘the law is clear enough and what warning to potential offenders is sufficiently clear.’274 In this context, the question is ‘whether the conduct could have been expected to fall within a reasonable interpretation of the criminal law as it existed at the time of the act’.275 It is submitted that the ICC definition of crimes through the Statute and Elements allows for such interpretation, so as to involve the commission of crimes through the internet. To accept otherwise would require us to adopt many variants of the rule on, e.g., ‘wilful killing’, so as to cover all possible instruments for killing.276 On the contrary, Judges here are required only to ‘clarify,

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to Ultraterritorial Jurisdiction’, in Koops and Brenner (eds.), Cybercrime and Jurisdiction, above n. 257, 117; R. v. Misic, [2001] 3 New Zealand Law Reports 1 (CA); N. Cox, ‘Cybercrime and Jurisdiction in New Zealand’, in Koops and Brenner (eds.), Cybercrime and Jurisdiction, above n. 257, 276–277. For the proposition that the commission of ordinary crimes through the internet should be used as a sentencing factor indicative of the ‘scale and extent of the accused’s mischief’, Lim Siong Khee v. Public Prosecutor, [2001] SGDC 32 (Singapore District Court), paras. 44–45. See for example Art. 1(1) of the 1992 Protocol Amending the Treaty on Extradition between Australia and the United States of America of 14 May 1974, Australian Treaty Series No. 43 (1992); J. Clough, Principles of Cybercrime, above n. 237, 416–417. Art. 22(2) specifically. Further, W.A. Schabas, An Introduction to the International Criminal Court (4th edn., Cambridge University Press, 2011), 214–216. Further, Prosecutor v. Thomas Lubanga Dyilo (Decision on the Confirmation of Charges) ICC-01/04–01/06803-tEN (29 January 2007), para. 303. See, e.g., the prohibition of specific means of warfare (poisonous weapons). Cassese, International Criminal Law, above n. 119, at 48. K. Gallant, The Principle of Legality in International and Comparative Criminal Law in J. Crawford and J.S. Bell (eds.), Cambridge Studies in International and Comparative Law (New York: Cambridge University Press, 2009), 33. Ibid., 366. The Elements of Crimes provide in an identical footnote for ‘killing’ in Arts. 6(a), 7(1)(a) and 8(2)(a)(i) that it stands for ‘caused death’. The Preparatory Commission never distinguished between permissible and impermissible ways of killing.

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or give legal contour to, prohibitions that have already been laid down in . . . treaties’, not to create new classes of criminal conduct.277 Finally, and a contrario, if this argument were accepted, a computer system would effectively shield a perpetrator from criminal responsibility for the crimes codified in the Statute. This goes directly against the stated purpose of the Rome Statute to end impunity and the intentions of the drafters as manifested in the treaty.278 At the outset, it should be noted that the preparatory works of the Statute are silent on the matter. With the exception of the use of electronic evidence or electronic communications with the Court,279 the use of the internet or electronic systems for the commission of ICC crimes was not discussed. Perhaps to avoid such arguments, the Rome Statute could be amended to include specific provisions to that effect,280 although it does not seem necessary. In fact, recent calls advocate an implementation of existing international rules to cyberspace, instead of the adoption of new ones.281 After all, ‘what is illegal off-line, is illegal on-line.’282

5.6.2 Searching for the minimum common denominator for the localization of online criminal activity The main question to be addressed in this sub-section is whether there is a minimum common denominator in State practice for the 277 278 279

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Cassese, International Criminal Law, above n. 119, 39. In detail Section 4.2 above. 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’, UN Doc. A/AC.249/1 (7 May 1996), para. 202. On Art. 68(2) in Rome, at UN Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Official Records, vol. III, UN Doc. A/CONF.183/13 (15 June–17 July 1998), 165, 287, 313. On the discussions on Rules 87(3)(c) and 102 in the Preparatory Commission of the International Criminal Court, Proceedings of the Preparatory Commission at its Second Session (26 July–13 August 1999), UN Doc. PCNICC/1999/L.4/Rev.1, Appendix (18 August 1999), 45, 48 (Draft Rules 6.28, 6.31). From the perspective of general international criminal law, M.C. Bassiouni, Crimes Against Humanity: Historical Evolution and Contemporary Application (New York: Cambridge University Press, 2011), 14, argues for ‘an expanded ratione materiae of a more progressive definition of CAH’ (crimes against humanity). Baroness Ashton, Cyber Security: An Open, Free and Secure Internet, SPEECH/12/685 (4 October 2012), available at: www.europa.eu/rapid/press-release SPEECH-12-685 en.htm (last accessed 10 February 2013). European Commission, Proposal for a Framework Decision Combating Racism and Xenophobia, Doc. COM (2001) 664 final, (28 November 2001) at 6, available at: http:// eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2001:0664:FIN:EN:PDF (last accessed 10 February 2013).

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interpretation of territorial jurisdiction as regards criminal activity committed via the internet. Such practice could be a precursor to the interpretation of Article 12(2)(a) of the Rome Statute and a possible indication of the situation in customary law.283

5.6.2.1 Treaty law: the 2001 Cybercrime Convention As regards treaty law, the main instrument on point is the 2001 Council of Europe Cybercrime Convention284 and its 2003 Additional Protocol.285 Although a regional instrument, this Convention has been accepted also by other States not members of the Council of Europe.286 It is said to constitute ‘the first and only international treaty on crimes committed via Internet and is open to all States.’287 The regulation of jurisdiction in the Cybercrime Convention constitutes the best available reflection of the international legal regime on the matter. Territoriality under Article. 22(1)(a) is the minimum common denominator.288 It provides that ‘[e]ach Party shall adopt such legislative and other measures as may be necessary to establish jurisdiction over any offence established in accordance with Articles 2 through 11 of this Convention, when the offence is committed: a. in its territory; [ . . . ]’. This is the primary basis for national jurisdiction,289 since the Convention explicitly precludes the possibility of filing a reservation to that clause.290 283 284 285

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For a comprehensive study of internet criminal activity Koops and Brenner (eds.), Cybercrime and Jurisdiction, above n. 257. Convention on Cybercrime, Council of Europe, above n. 251. The Council of Europe Cybercrime Convention and the Additional Protocol thereto will be discussed below. Additional Protocol to the Convention on Cybercrime, Concerning the Criminalization of Acts of a Racist and Xenophobic Nature Committed through Computer Systems, ETS No. 189, Strasbourg, 28 January 2003, entered into force 1 March 2006. Other applicable treaties would include the Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography, New York, 25 May 2000, 2171 UNTS 227 (2000). The Cybercrime Convention has been signed also by Canada, Japan, South Africa and the United States; Japan and the United States. have already ratified the Convention, whereas Australia acceded to it in 2012. Council of Europe Treaty Office, available at: http://conventions.coe.int/Treaty/Commun/ChercheSig.asp?NT=185&CM=&DF= &CL=ENG (last accessed 10 February 2013). K.U. v. Finland (App. No. 2872/02) (Merits and Just Satisfaction) ECHR 2 December 2008, para. 24. For debates surrounding proposals for a UN Convention on Cybercrime, see Clough, ‘The Council of Europe Convention on Cybercrime’, above n. 259, 367–369, 388–389. Kaspersen, ‘Jurisdiction in the Cybercrime Convention’, above n. 257, 14. 290 Article 22(1) Cybercrime Convention. Article 22(2) Cybercrime Convention.

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The question of the specific rules or criteria required for the determination of the locus delicti for cybercrimes was left to be determined by national law and national courts.291 This course of action was considered best, in light of the complexity of the subject and the possibility for differentiation on a case-by-case basis.292 This appears to have been a conscious decision on the part of the drafters, who were aware that particularly as regards the assumption of objective territorial jurisdiction, ‘judicial interpretation of the locus delicti may lead to different results’.293 The development of common criteria in that respect within the framework of cybercrimes was apparently not desirable, ‘in particular because of the possible implications for other types of [traditional] crimes.’294 Additionally, the Convention allowed for the exercise of jurisdiction under any other jurisdictional basis accepted by national law.295 The Explanatory Report indicated that the drafters decided not to include under Article 22(1)(a) of the Cybercrime Convention an obligation of the State of registration of a satellite involved in a criminalized internet transmission to establish jurisdiction.296 The activity could be better connected to the territory of the State of the satellite’s ground station, which would have a more ‘meaningful nexus’ to the offence than the State of registration of the satellite.297 The 2003 Additional Protocol did not contain a separate provision on jurisdiction but rather referred to the provisions already included in the Convention.298 Finally, as regards the implementation of the 2001 Convention, national implementing legislation shows a diversification among States who maintained their rules on territorial jurisdiction and others who adopted special laws or amended existing ones, with new rules.299 At the very least, however, as the Explanatory Report affirmed, the location of 291 292 296

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Kaspersen, ‘Jurisdiction in the Cybercrime Convention’, above n. 257, 11. 293 294 295 Ibid. Ibid., 21. Ibid. Article 22(4) Cybercrime Convention. Explanatory Report to the 2001 Convention on Cybercrime, ETS No. 185, available at: http://conventions.coe.int/Treaty/EN/Reports/Html/185.htm (last accessed 10 February 2013). Ibid., para. 234. Kaspersen, ‘Jurisdiction in the Cybercrime Convention’, above n. 257, 13. Art. 8(1) of the Additional Protocol to the Convention on Cybercrime, Concerning the Criminalization of Acts of a Racist and Xenophobic Nature Committed through Computer Systems, above n. 285. See below Section 5.6.2.3. under ‘national law’. Generally, on the lack of uniformity, see Picotti Report, above n. 269, 58.

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the computer system attacked by itself may suffice to determine the locus delicti commissi in such cases.300

5.6.2.2 EU instruments Beyond the Council of Europe context, other regional instruments adopted in order to combat specific forms of criminality serve as evidence of the same mixed approach to territorial jurisdiction for online-related criminal activity. Thus, the European Union has taken steps to ensure that its Member States shall exercise jurisdiction over the online commission of crimes such as child pornography,301 racism and xenophobia,302 attacks against information systems303 and terrorism.304 In doing so, the relevant instruments typically provide for territorial criminal jurisdiction on the basis of the commission of the offence ‘in whole or in part’ within the territory of a Member State.305 In certain cases, this rule is explained in more detail. As regards child pornography, EU Member States have an obligation to establish jurisdiction in particular when the offence ‘is committed by means of a computer system accessed from its territory, whether or not the computer system is on its territory.’306 Furthermore, Article 9(2) of the Framework Decision on Combating Racism explicitly explains ‘commission in part’ within Member State territory in the case that the prescribed conduct takes place 300 301 302

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Explanatory Report, above n. 296, para. 233. Council Framework Decision 2004/68/JHA of 22 December 2003 on combating the sexual exploitation of children and child pornography, OJ (L 13/44), 20 January 2004. Council Framework Decision 2008/913/JHA of 28 November 2008 on combating certain forms and expressions of racism and xenophobia by means of criminal law, OJ (L 328/55), 6 December 2008. Council Framework Decision 2005/222/JHA of 24 February 2005 on attacks against information systems, OJ (L 69), 16 March 2005. The proposed Directive, intended to replace this Framework Decision, contains the same rules on jurisdiction in Art. 13 as the Framework Decision. Proposal for a Directive of the European Parliament and of the Council on attacks against information systems and repealing Council Framework Decision 2005/222/JHA, COM(2010) 517 final, 30 September 2010, available at: http://eur-lex. europa.eu/LexUriServ/LexUriServ.do?uri=COM:2010:0517:FIN:EN:PDF (last accessed 10 February 2013). Council Framework Decision 2002/475/JHA of 13 June 2002 on combating terrorism, OJ (L 164), 22 June 2002. Art. 8(1)(a) Council Framework Decision 2004/68/JHA (child pornography, above n. 301), Art. 9(1)(a) Council Framework Decision 2008/913/JHA (racism and xenophobia, above n. 302), Art. 10(1)(a) Council Framework Decision 2005/222/JHA (attacks against information systems, above n. 303), Art. 9(1)(a) Council Framework Decision 2002/475/JHA (terrorism, above n. 304). Art. 8(5) Council Framework Decision 2004/68/JHA, above n. 301.

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through an information system. Member States shall establish territorial jurisdiction when, at the time of the commission of the crime, either the offender is physically present in their territory or the conduct involves material hosted on an information system in their territory.307 These are described as the ‘minimum criteria’ for the harmonization of the rules on territorial jurisdiction of Member States for such type of activity.308 The same jurisdictional scheme is provided for in the Framework Decision on attacks against information systems.309 Additionally, these instruments also share certain common attributes. They routinely provide that the jurisdictional clauses apply to all forms of participation in the commission of the criminalized conduct, including instigation, aiding and abetting.310 Moreover, contrary to other rules on jurisdiction laid down therein, they stipulate that Member States cannot opt out or refuse the implementation of the rules on territorial jurisdiction.311

5.6.2.3 National law On the national level, country profiles prepared within the context of the Council of Europe’s Project on Cybercrime,312 as well as independent research,313 show a variety of solutions adopted by States. Some States seem to generally apply the established body of rules on territorial jurisdiction available under the general part of their national

307 308 309 310

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Arts. 9(2)(a) and 9(2)(b) Council Framework Decision 2008/913/JHA, above n. 302. European Commission, Proposal for a Framework Decision Combating Racism and Xenophobia, above n. 282, at 11. Art. 10(2) Council Framework Decision 2005/222/JHA attacks against information systems, above n. 303). Art. 8(1) Council Framework Decision 2004/68/JHA (child pornography, above n. 301); Art. 9(1) Council Framework Decision 2008/913/JHA (racism and xenophobia), above n. 302); Art. 10 (1) Council Framework Decision 2005/222/JHA (attacks against information systems, above n. 303). Art. 8(2) Council Framework Decision 2004/68/JHA (child pornography, above n. 301); Art. 9(3) Council Framework Decision 2008/913/JHA (racism and xenophobia, above n. 302); Art. 10 (5) Council Framework Decision 2005/222/JHA (attacks information systems, above n. 303). Council of Europe, Project on Cybercrime, available at: www.coe.int/t/dghl/cooperation/ economiccrime/cybercrime/documents/countryprofiles/default en.asp (last accessed 10 February 2013). Particularly important in this context are the following; Koops and Brenner (eds.), Cybercrime and Jurisdiction, above n. 257; Brenner and Koops, ‘Approaches to Cybercrime Jurisdiction’, above n. 236.

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criminal law and case-law.314 Others seem to have adopted specific rules for asserting territorial jurisdiction over computer/internet crimes.315 Among these States, the minimum connection varies. The UK Computer Misuse Act 1993, one of the first in the field, provides that the critical test for determining the territorial scope of this law is the existence of a ‘significant link with domestic jurisdiction’, such as the location of the data or the accused at the time of the commission of the offence.316 The assertion of territorial jurisdiction on the basis of the link that the offender or the computer or computer system affected were situated within the State’s territory at the material time is accepted also in other national laws.317 The minimum contact with State territory required under national law can be very limited.318 Malaysia, for one, allows the exercise of territorial 314

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This would apply for the following States; Australia, Albania, Armenia, Austria, Belgium, Bosnia and Herzegovina, Bulgaria, China, Croatia, Czech Republic, Dominican Republic, Estonia, Finland, France, FYR of Macedonia, Germany, Italy, Japan, Lithuania, Mexico, Morocco, Romania, the Russian Federation, Senegal, Slovakia, Spain, Myanmar, Thailand, Turkey, United Arab Emirates, Vietnam and Kosovo. See in detail Council of Europe, Cybercrime Legislation, available at: www.coe.int/t/dghl/cooperation/economiccrime/ cybercrime/documents/countryprofiles/default en.asp (last accessed 10 February 2013). See also Brenner and Koops, ‘Approaches to Cybercrime Jurisdiction’, above n. 236, 13– 14; for China, see in detail Orji, ‘An Analysis of China’s Response to Cybersecurity’, above n. 261, 223–224. In the 2006 survey edited by Koops and Brenner, the following States also referred for such criminal activity to territorial jurisdiction under the general part of their criminal law: Chile, Denmark, Republic of Korea and New Zealand; see Koops and Brenner (eds.), Cybercrime and Jurisdiction, above n. 257, the contributions of R. ´ niga and F. Londo˜no, ‘Chile’, 149–152; H. Sprang-Hanssen, ‘Denmark’, 173–174; J.-H. Zu˜ Lee, ‘Korea’, 263, 265–66; N. Cox ‘New Zealand’, 281–282. Council of Europe, Cybercrime Legislation, above n. 314. This category of States includes Brunei Darussalam, Indonesia, Malaysia, Nigeria, Pakistan, Phillipines, Portugal, Singapore, Sri Lanka, Tonga and the United Kingdom. Sections 4–5 of the UK 1990 Computer Misuse Act, available at: http://www.legislation. gov.uk/ukpga/1990/18/section/4 (last accessed 10 February 2013). The Act predates the Convention on Cybercrime. This approach is followed also by the 1924 Criminal Code of Tasmania, as amended, s. 257F, available at: http://www.thelaw.tas.gov.au/tocview/ index.w3p;cond=ALL;doc id=69%2B%2B1924%2BAT@EN%2B20080122090000 (last accessed 10 February 2013). Art. 11(2) of the 2007 Computer Misuse Act of Brunei Darussalem, available at: http://www.coe.int/t/dghl/cooperation/economiccrime/cybercrime/documents/ countryprofiles/cyber cp Brunei %202008 November.pdf (last accessed 10 February 2013); Art. 2(1)(a) and (c) of the Computer Crime Act No. 24/07 of Sri Lanka, available at: http://www.icta.lk/pdf/ComputerCrimesActNo24of2007.pdf (last accessed 10 February 2013). In detail, Brenner and Koops, ‘Approaches to Cybercrime Jurisdiction’, above n. 236, 20–21.

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jurisdiction for computer crimes as defined under national law, ‘if, for the offence in question, the computer, program or data was in Malaysia or capable of being connected to or sent to or used by or with a computer in Malaysia at the material time’.319 A similar approach is followed by Pakistan as regards offences occurring in the context of electronic transactions320 or ‘electronic crimes’.321 Singapore provides for criminal jurisdiction over computer crimes, when the accused or the program or computer or data was in Singapore at the material time.322 The United States asserts jurisdiction over a number of offences against a ‘protected computer’. Such a computer is also defined as a computer ‘which is used in or affecting interstate or foreign commerce or communication, including a computer located outside the United States that is used in a manner that affects interstate or foreign commerce or communication of the United States’.323 Thus the commission of any of the listed offences involving a computer connected to the internet which is used in or affecting interstate or international communication may fall within US jurisdiction.324 Interestingly, in addition to the above connections, certain national laws also provide specifically for territorial jurisdiction when the electronic instrument for the commission of the crime is within the national territory.325 319

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Section 9(2), Territorial Scope of Offences under this Act, Computer Crimes Act 1997 (Laws of Malaysia), Act 563, as amended until 1 January 2006, available at: http://www. agc.gov.my/Akta/Vol.%2012/Act%20563.pdf (last accessed 10 February 2013). Brenner and Koops, ‘Approaches to Cybercrime Jurisdiction’, above n. 236, 21. Art. 32 of the 2002 Electronic Transactions Ordinance, incorporated in Council of Europe, Cybercrime Legislation – Country Profile: Pakistan (23 February 2010), 27, available at: http://www.coe.int/t/dghl/cooperation/economiccrime/cybercrime/documents/ countryprofiles/cyber cp Pakistan 2010 February.pdf (last accessed 10 February 2013). Under Art. 1(3) of the 2009 Prevention of Electronic Crimes Ordinance, ibid. Territorial Scope of the Offences under this Act, s. 11(3) of the Computer Misuse Act, Act 19 of 1993 (Revised 31 July 2007), as amended on 2 January 2011, available at: http://statutes.agc.gov.sg/aol/search/display/view.w3p;ident=19511dcd-ce13-4215a742-4cbdc269a0b8;page=0;query=DocId%3A8a3534de-991c-4e0e-88c5-4ffa712e72af %20%20Status%3Ainforce%20Depth%3A0;rec=0#pr11-he (last accessed 10 February 2013). Note that the recent Bill for the amendment of the Singapore Computer Misuse Act does not change the provision on jurisdiction. Computer Misuse (Amendment) Bill, Bill No. 36/2012, first reading 12 November 2012. 18 USC§ 1030 (e) (2) (b) as provided by the 1986 Computer Fraud and Abuse Act. Clough, Principles of Cybercrime, above n. 237, 409. Evidently, the computer need not be located in the United States. See e.g. Art. 2(1)(c) of the Sri Lankan Computer Crime Act No. 24 of 2007, (13 July 2007), available at: http://www.icta.lk/pdf/ComputerCrimesActNo24of2007.pdf (last accessed 10 February 2013). Other national laws do so by statutory construction; further, Brenner and Koops, ‘Approaches to Cybercrime Jurisdiction’, above n. 236, at 16. For the understanding of the internet as means to expand federal court jurisdiction via the ‘instrument

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National case-law follows suit on the diverse application of territoriality. There are many cases on the matter covering a diverse range of issues from child pornography to online gambling and hate speech, which cannot be discussed at length here.326 That said, case law on denial of Holocaust cases demonstrates a certain convergence of judicial reasoning. National judges seem to first engage in an examination of the criminal ‘act’ charged and then to apply rules of territorial jurisdiction. Through this process, while the interpretation of the national criminal statute on the relevant crime may be somewhat liberal, the rules on territorial jurisdiction remain basically unchanged. Typically, judges would seek to ascertain whether a constituent element of the offence in question may be said to have been committed on State Party territory. The emphasis would then be on the analysis of the offence in law, as opposed to the adoption of new rules of territorial jurisdiction. This analytical process may be complemented by an element of judicial policy. This judicial technique is exemplified by the T¨oben Case in Germany and the Yahoo! Cases in France, two of the most well-known and controversial litigations on the topic. The T¨oben Case327 involved the online publication of comments that effectively denied certain aspects of the Holocaust. The comments were made in English, on an Australian website and hosted by an Australian server, while the accused was an Australian national. The suspect was arrested while on vacation in Germany and charged with the offence of inciting racial hatred and denying Nazi crimes under s. 130 of the German Criminal Code. The final decision on the case was rendered by the Federal Court of Justice, which upheld the defendant’s conviction. The Federal Court relied for its conclusion on an extensive analysis of the nature of the crime. In particular, it classified the offence codified in s. 130 of the

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of commerce’ in the United States or the ‘use of telecommunications network’ in Australia, Clough, Principles of Cybercrime, above n. 237, 410–411. In detail, Kohl, Jurisdiction and the Internet, above n. 231, 95–110, J. Kulesza, International Internet Law (London: Routledge, 2012), 89–91 with references to US gambling case law, particularly Minnesota v. Granite Gate Resorts, Inc. (1997) 568 NW 2d 715 (Minn. Ct. App.). In re T¨oben; Decision of the District Court of Mannheim, Urt. v. 10.11.1999 – 5 KLs 503 Js 9551/99 (1999); the decision of the Federal Court of Justice (BGH), Urt. v. 12.12.2000 – 1 StR 184/00, reported in 54(8) NJW (2001), 624–628. For commentary, Hayashi, ‘Objective Territorial Principle or Effects Doctrine?’, above n. 241, 293–295; Timofeeva, ‘Worldwide Prescriptive Jurisdiction in Internet Content Controversies’, above n. 246, 206–207; Kohl, Jurisdiction and the Internet, above n. 231, 101–102.

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German Criminal Code as an abstract–concrete endangerment offence and stressed that the offence in question must disturb or have the ability to disturb public peace.328 After ascertaining the intention of the drafters of the law, the Court went on to conclude that such online publication could raise a reasonable fear that public trust in common security would be threatened, which was the legal interest that the criminal provision in question intended to protect.329 The Court examined the communications in question and held that their harmful effects could be construed as having occurred in Germany. Therefore, jurisdiction was properly established under ss. 3 and 9 of the German Criminal Code.330 The Court relied on the facts that, while in English, the statements were addressed to the German public and that the website was accessible to German users.331 The Court furthermore explained that such jurisdictional assertion was in accordance with the requirement under public international law that there was a substantial connection between the State exercising jurisdiction and the offence at hand.332 The connection was found to exist in the present case, insofar as an element of the offence – its harmful effects – took place in Germany.333 This decision has been criticized in the literature as nothing more than ‘a show case for demonstrating the unacceptability offline or online, of radical right-wing views’.334 In particular, it is questioned whether T¨oben’s comments could actually have the effect required in Germany for the commission of the crime under German criminal law, considering the reputation of their author and the language.335 Moreover, it is argued 328

329 330 333

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Federal Court Decision, ibid., under D.I.5. For abstract endangerment offences, see U. Sieber, ‘Cybercrime and Jurisdiction in Germany: The Present Situation and the Need for New Solutions’, in Koops and Brenner (eds.), Cybercrime and Jurisdiction, above n. 257, 189–192; and A. von Hirsch, ‘Extending the Harm Principle: “Remote” Harms and Fair Imputation’, in A. P. Simester and A.T.H. Smith (eds.), Harm and Culpability (Oxford: Clarendon Press, 1996), 263. Federal Court Decision, above n. 327, under, D.I.5.(d). 331 332 Ibid., D.I.6. Ibid., D.I.2 and D.I.6. Ibid., D. II. 4. Ibid. Note that in a similar case on Holocaust Denial in Canada that took place in a civil context, Citron v. Z¨undel, 175 DLR 512 (1999), paras. 62–66, the Canadian authorities exercised territorial jurisdiction over an individual in Canada for causing an offending site to be published in the United States, or ‘the control that Z¨undel asserted over the content of the site’. Kohl, Jurisdiction and the Internet, above n. 231, 106–107. Kohl, Jurisdiction and the Internet, above n. 231, 101; Hayashi, ‘Objective Territorial Principle or Effects Doctrine?’, above n. 241, 298–302; Timofeeva, ‘Worldwide Prescriptive Jurisdiction in Internet Content Controversies’, above n. 246, 201–211. The accused was apparently in Australia at the time the decision was issued and was not arrested. Kohl, Jurisdiction and the Internet, above n. 231.

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that no evidence was produced that anyone in Germany, other than the investigating officers, had actually accessed the website.336 Irrespective of this criticism, however, this decision is useful. It explicitly refers to the requirement of connection between State territory and the offence under international law, while it also constitutes a clear example of the process of judicial reasoning followed in such cases. The same approach may be seen in the earlier Yahoo! Cases in France.337 These cases involved complaints that the display and sale of Nazi memorabilia by Yahoo! in its auction websites Yahoo!.com and Yahoo!.fr violated French law. The French courts mostly engaged in an interpretation of the criminal act in question and then used the traditional localization devices to situate part of the conduct in France. In its Interim Order of 22 May 2000, the Tribunal de Grande Instance considered the issue of jurisdiction in a few lines. By permitting these objects to be viewed in France and allowing surfers located in France to participate in such a display of items for sale, Yahoo!, Inc. was considered to have committed a wrong in the territory of France. As the damage was suffered in France, the Court upheld its competence to decide the case.338 The accessibility of the Yahoo! websites from France was a critical element of the French Courts’ decision that the act in question had materialized equally in French territory.339 336 337

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Ibid. The Yahoo! Cases involve two large sets of litigation in France; the first action (an action ´ civile) of LIGRA et Union des Etudiants Juifs de France and La Ligue contre le Racisme et l’Antis´emitisme v. Yahoo! Inc. et Yahoo.Fr was initiated in 2000. It resulted to an injunction issued against Yahoo! and the imposition of a daily fine in the event of non-compliance. In spite of Yahoo!’s partial compliance, users in France could still view the prohibited content. This led to a second set of French litigation against Yahoo! and its managing director, Mr Koogle. Both the Court of First Instance and the Appeals Court of Paris affirmed jurisdiction in separate decisions; Tribunal de Grande Instance de Paris, Jugement of 26 February 2002, 17`eme Chambre, Chambre de la Presse, No. 0104305259; and the decision of the Cour d’Appel de Paris, Judgment of 17 March 2004, 11`eme Chambre, Chambre des Appels Correctionnels, No. 03/01520. On the merits, they acquitted and dismissed the action for partie civile. See Tribunal de Grande Instance de Paris, Jugement of 11 February 2003, 17`eme Chambre, Chambre de la Presse, No. 0104305259, confirmed by the Cour d’Appel on 5 April 2005. Hayashi, ‘Objective Territorial Principle or Effects Doctrine?’, above n. 241, 290–293. ´ LICRA et Union des Etudiants Juifs de France v. Yahoo! Inc. et Yahoo!.Fr, Tribunal de Grande Instance de Paris, Ordonnance de r´efer´e du 22 mai 2000, 5; LICRA et Union des ´ Etudiants Juifs de France v. Yahoo! Inc. et Yahoo!.Fr, Tribunal de Grande Instance de Paris, Ordonnance de r´efer´e du 20 nov´embre 2000, 4. This is particularly clear in the second round of suits on the same case. See in detail, Tribunal de Grande Instance de Paris, Jugement of 26 February 2002, above n. 337; further Hayashi, ‘Objective Territorial Principle or Effects Doctrine? ’, above n. 241, 293.

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The French Courts took a constitutive elements approach. They considered that they had jurisdiction as advertising, a necessary element to the offence, was construed as having occurred on French territory, since it was accessible to French users.340 These decisions were complemented by an element of judicial policy; the Paris Court of Appeal was concerned that a limited view of its jurisdiction would likely promote a safe haven phenomenon for online hate speech.341 Yahoo!, for its part, sought and succeeded in acquiring a Declaratory Judgment by US Courts, refusing to recognize and enforce the French decisions.342 Authorities have been critical of the French Courts’ approach, alleging an absence of a real link between France and the website.343 Although that is debatable, the Yahoo! Case serves for present purposes as a useful indication of the legal analysis followed. The French courts, in tandem with their German counterparts in T¨oben, emphasized the construction of the crime and then turned to a ‘classic’ approach to territoriality. Evidently, this analytical track is not the exclusive prerogative of civil law jurisdictions. Similar litigations in Canada and Australia show also a rigorous analysis and interpretation of the substantive conduct and consequence, followed by a classic application of rules on territorial jurisdiction.344 Authorities have suggested the emergence of certain basic patterns as regards the exercise of territorial jurisdiction for online crimes, which 340 341

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343 344

Tribunal de Grande Instance de Paris, Jugement of 26 February 2002, above n. 337, II.2.a. further Kohl, Jurisdiction and the Internet, above n. 231, 100. Timothy K. et Yahoo! c. Minist`ere Public, Judgment of 17 March 2004, 11`eme Chambre, Chambre des Appels Correctionnels, No. 03/01520. Further, Hayashi, ‘Objective Territorial Principle or Effects Doctrine?’, above n. 241, 301. The United States has specifically called upon States to ‘ensure that their laws and practice eliminate safe havens for those who criminally misuse information technologies’; UNGA Res. 55/63 (22 January 2001) UN Doc. A/RES/55/63, operative para. 1(a). On the issue, generally, S.W. Brenner, ‘The Council of Europe’s Convention on Cybercrime’, in J.M. Balkin et al. (eds.), Cybercrime: Digital Cops in a Networked Environment (New York: NYU Press, 2007), 209. Yahoo! Inc. v. LICRA and UEJF, 169 F. Suppl.2d 1181, 1192, 1194 (ND Cal. 2001); the case in the United States concerning the second set of proceedings and Yahoo!’s request for a declaratory judgment of non-enforcement was finally dismissed in 2006 by the Court of Appeal of the 9th Circuit for ‘lack of ripeness’, among other grounds. Yahoo! v. LICRA, 433 F.3d 1199 (CA 9th Cir., 2006). Among many, Hirst, Jurisdiction and the Ambit of the Criminal Law, above n. 235, 193; Kohl, Jurisdiction and the Internet, above n. 231, 99–100. D. Fraser, ‘“On the Internet, Nobody Knows You’ Re A Nazi”: Some Comparative Legal Aspects of Holocaust Denial on the WWW’, in I. Hare and J. Weinstein (eds.), Extreme Speech and Democracy (New York: Oxford University Press, 2009), 529–536.

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may vary, however, from crime to crime. It is affirmed that States seem to rely strongly on territorial jurisdiction for combatting internet-related criminality and in particular the exercise of territorial jurisdiction by the country of destination of an internet communication.345 The precise connection to the territory varies. Kohl asserts that the effect on State territory justifying territorial jurisdiction can be minimal: ‘mere accessibility of the site tends to be sufficient’.346 In this context, it has been suggested that there is a fine line between objective territoriality and the effects doctrine for online activity. For the Yahoo! Cases, the conduct in question can be construed as ‘making information available on computer screens’ in France (objective territoriality), or equally as ‘an effect of the uploading and maintenance of a website abroad that is accessible to internet users in French territory’ (effects doctrine).347 Therefore, considering that the act of typing as such is not criminal, much depends on the way that the criminal act in question is construed for the determination of territorial jurisdiction. Territorial jurisdiction on the basis of potential accessibility of a site is not an absolute rule. Defamation cases, for example, require something more than mere accessibility, such as actual perception by a third party of the defamatory statement, involving proof that the statement has been read by a third party.348 On the other hand, cases of offences committed via displaying, distributing or publishing racially inflammatory material do not require proof that anybody actually read it.349 It largely depends therefore on the State(s) involved and the construction of the crime in question. 345 347 348

349

346 Kohl, Jurisdiction and the Internet, above n. 231, 96. Ibid. Hayashi, ‘Objective Territorial Principle or Effects Doctrine?’, above n. 241, 298–299. See, for example, In re Moshe, Italian Court of Cassation, Judgment No. 4741, Section V (Pen.) (27 December 2000), available at: http://www.penale.it/giuris/cass 013.htm (last accessed 10 February 2013). Timofeeva, ‘Worldwide Prescriptive Jurisdiction in Internet Content Controversies’, above n. 246, 210–211 asserts that this ruling is in line with earlier Australian jurisprudence on the tort of defamation, as stipulated in Dow Jones v. Gutnick, 210 CLR 575 (2002), 576. From recent French case-law on the matter, see Minist`ere Public c. Weiler, Case No. 0718523043, Trib. Gr. Inst. Paris, 17`eme Chambre, 3 March 2011, available at: http://fr.scribd.com/doc/50272312/Ministere-Public-c-Weiler (last accessed 31 December 2012), 3–4, accepting that territorial jurisdiction was not established on the grounds that it was not proven that the text in question was accessible from France or was actually consulted on French territory prior to the expiry of the relevant statute of limitations. R. v. Sheppard and Whittle, above n. 242, paras. 34–35; R v. Smith (Wallace Duncan) (No. 4) [2004] 2 Cr. App. R 17, [2004] EWCA Crim. 631, para. 55.

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5.6.3 Conclusion The law as regards the exercise of territorial jurisdiction for crimes committed through the use of the internet and computer systems is developing. This part set out to identify the minimum requirements for the exercise of territorial jurisdiction by the ICC in the event of a crime falling within its subject matter jurisdiction committed through the internet. It would seem that no such minimum common denominator is generally discernible and acceptable. The law on the point is not internationally harmonized. There are many different alternatives adopted in State practice, falling under the general ‘umbrella’ rule of territoriality. The Cybercrime Convention, which likely reflects or at least heavily influences customary law on the matter, follows this approach. It provides for one general rule of territorial jurisdiction and leaves its specific construction to national law. The diversification in the implementing legislation shows the wisdom of this choice. States Parties have generally maintained their own rules of territorial jurisdiction for the crimes codified in that Convention. EU rules on the matter show a more nuanced approach. They require at a minimum that Member States exercise territorial jurisdiction if either the offender or the computer system hosting the material was within their territory at the material time.350 A few States have developed specific rules on territorial jurisdiction to address crimes involving the internet. In these cases, the connection can be as minimal as the potential connection or use of the data in question from a State’s territory, or as substantial as the presence of the suspect or the computer system involved within State territory at the material time. Others have adopted in an internet-related criminal statute the requirement of proof of a ‘real and substantial link’ between the acts constituting the offence and State territory.351 Case-law so far shows that national courts have largely avoided the development of new, technologically-specific rules of territorial jurisdiction. At their most progressive, they apply standards of reasonableness developed earlier in the context of ‘ordinary’ transnational crime. Thus, English Courts, following Libman and Smith (Wallace Duncan), accept that territorial jurisdiction is possible over offences involving the internet, provided that ‘a substantial measure of the activities constituting the crime’ took place within national territory.352 The German Federal 350 352

351 See above Section 5.6.2.3. See above n. 316, (UK and Tasmania). R. v. Sheppard and Whittle, above n. 242, para. 21.

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Court in T¨oben also made reference to the requirement under international law to exercise jurisdiction on the basis of a substantial link between State territory and the offence.353 The classic approach remains, however, a strong attachment to objective territoriality and ubiquity, as Yahoo! shows. Case-law on jurisdiction over online crimes demonstrates the lingering emphasis that national judgments place on the analysis of the specific crime at hand and its dissection into constituent parts. Once that task is completed, national judges turn to the localization of any constituent element of the offence within national territory, in a typical application of objective territorial jurisdiction or ubiquity, as the case may be. The emphasis lies therefore on the legal nature and elements of the substantive crimes charged, as opposed to the application of territoriality. The analysis is informed on occasion by policy considerations, such as the possibility that a finding of lack of jurisdiction may lead to the emergence of safe havens for the criminal activity in question. As regards the ICC, this practice offers useful indications. Both the Rome Statute and the Cybercrime Convention contain only a general prescription on territorial jurisdiction. Understandably, the Court’s reach may well vary depending on the crime at hand and its analysis into constituent elements. Perhaps the Court would prefer a robust interpretation of the subject matter jurisdiction clauses of the Rome Statute, followed by a more conservative approach to jurisdictional questions. This possibility cannot be excluded, although in the light of the Court’s recent jurisprudence on subject matter jurisdiction questions in the Kenyan Cases, it appears increasingly unlikely.354 In the alternative, the Court might be served best by adopting a single general standard of reasonableness that would enable it to specify in each case the ‘substantial connection’ to State Party territory of the online or offline commission or participation to the commission of a crime within its jurisdiction.355 The jurisdictional contours of internet-related offences will become evident through the analysis of the possible prosecution of one of the crimes within the Court’s jurisdiction most likely to involve the internet, namely incitement to commit genocide through online activity. 353 354 355

Above n. 332. See Chapter 8 on the challenges to the Court’s jurisdiction in detail. This is proposed below, Section 6.8. From a human rights perspective, see above, Section 5.5.3.

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5.6.4 The territorial jurisdiction of the International Criminal Court over incitement to commit genocide through online activity Public statements can give rise to individual criminal responsibility under international criminal law.356 Such public statements may take place through the internet; its ‘interconnectedness’ makes it particularly well suited to that end. For present purposes, one crime in particular can be easily conceived as involving the use of the internet; incitement to genocide. It will thus be used as an example to highlight the questions that its online commission may hold for the territorial jurisdiction of the ICC. Under Article 25(3)(e) of the Rome Statute, directly and publicly inciting others to commit genocide is a crime within the jurisdiction of the Court. This applies only for genocide.357 The definition follows closely the earlier formulations of the crime in the Genocide Convention358 and the Statutes of the ad hoc tribunals.359 As such, it has been discussed at length particularly in cases arising from the Rwanda Genocide before the ICTR360 and national courts.361 Incitement to genocide is one of the acts of genocide which States have a positive duty to prevent.362 Its criminalization aims at preventing ‘an uncontrollable and irreversible danger of the commission of certain 356

357

358 359

360

361 362

See for example, ICTY, Prosecutor v. Radoslav Brđanin (Judgment) IT-99–36-T (1 September 2004), paras. 574–578 (public statements led to conviction for instigating forcible transfers and deportations). M. Boot, Nullum Crimen Sine Lege and the Subject Matter Jurisdiction of the International Criminal Court: Genocide, Crimes Against Humanity, War Crimes (Antwerpen: Intersentia, 2002), 395. Art. III(e) of the Convention on the Prevention and Punishment of the Crime of Genocide, Paris, 9 December 1948, entered into force 12 January 1951, 78 UNTS 277. Art. 4(3)(c) of the Statute of the International Criminal Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the territory of the Former Yugoslavia since 1991, 25 May 1993, UNSC Res. 827, 32 ILM 1192; and Art. 2(3)(c) of the Statute of the International Criminal Tribunal for Rwanda, 8 November 1994, 33 ILM 1598, UNSC Res 955. Indicatively, ICTR, Prosecutor v. Jean-Paul Akayesu (Judgment) ICTR-96–4-T (2 September 1998), para. 562; recently affirmed in ICTR, Prosecutor v. Callixte Kalimanzira, (Judgment) ICTR-05-88-T (22 June 2009), para. 515; ICTR, Prosecutor v. Ferdinand Nahimana, Jean-Bosco Barayagwiza and Hassan Ngeze (Judgment) ICTR-99–52-A (28 November 2007) (the Media Appeal); ICTY, Prosecutor v. Simon Bikindi (Judgement and Sentence) ICTR-01-72-T (2 December 2008). Mugesera v. Canada (Minister of Citizenship and Immigration) Supreme Court of Canada, 2005 SCC 39, [2005] 2 SCR 9 (28 June 2005). Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro) (Judgment) [2007] ICJ Rep. 43, 221–223, paras. 430–2.

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mass crimes’363 triggered by forms of public propaganda, even prior to the preparation or attempt of genocide.364 The act alone ‘is as such sufficiently dangerous and blameworthy to be punished’.365 In light of these considerations, ICTR case-law has accepted unequivocally the inchoate nature of the offence.366 This means that ‘it is not necessary to prove that the incitement was successful in achieving the genocidal result’.367 The crime is committed ‘as soon as the discourse is question is uttered or published . . .’368 Accordingly, ‘incitement is punishable even if nobody is in fact incited’.369 This interpretation has also been adopted by the Canadian Supreme Court in the Mugesera Case.370 Inciting the commission of genocide through statements published online is probably a clear case falling within the jurisdiction of the Court and one that will likely arise in the future.371 ICTR case-law has already 363

364

365 366

367 368 369

370 371

K. Ambos, ‘Article 25’, in O. Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court: Observers’ Notes, Article by Article (2nd edn, Munich: C.H. Beck-Hart-Nomos, 2008), 761. Further, W. Timmermann and W.A. Schabas, ‘Incitement to Genocide’, in P. Behrens and R. Henham (eds.), Elements of Genocide (Abingdon: Routledge, 2012), 145. A. Eser, ‘Individual Criminal Responsibility’, in A. Cassese et al. (eds.), The Rome Statute of the International Criminal Court: A Commentary (Oxford University Press, 2002), vol. I, 803–804. Ambos, ‘Article 25’, above n. 363, 761. ICTR, Prosecutor v. Jean-Poul Akayesu above n. 360, para. 562; ICTR, Prosecutor v. Ferdinand Nahimana, Jean-Bosco Ngeze and Hassan Barayagwiza, above n. 360, para. 908. More recently ICTR, Prosecutor v. Callixte Kalimanzira above n. 360, para. 515. Further, Timmermann and Schabas, ‘Incitement to Genocide’, above n. 363, at 147–154. ICTR, Prosecutor v. Callixte Kalimanzira, above n. 360, para. 510. ICTR, Prosecutor v. Ferdinand Nahimana, Jean-Bosco Ngeze and Hassan Barayagwiza above n. 360, para. 723. Timmermann and Schabas, ‘Incitement to Genocide’, above n. 363, 147. Further on the inchoate nature of the offence, E. van Sliedregt, Individual Criminal Responsibility in International Law (Oxford University Press, 2012), 180–181; W.A. Schabas, Genocide in International Law: The Crime of Crimes (2nd edn, Cambridge University Press, 2009), 319 et seq.; M. Lippman, ‘Genocide’, in M.C. Bassiouni (ed.), International Criminal Law (3rd edn, Leiden: Martinus Nijhoff, 2008), vol. I, 432; T. Salomon, ‘Freedom of Speech v. Hate Speech: The Jurisdiction of “Direct and Public Incitmenent to Commit Genocide”’, in R. Henham and R. Behrens (eds.), The Criminal Law of Genocide: International, Comparative and Contextual Aspects (Aldershot Ashgate, 2007), 142; G. Mettraux, International Crimes and the Ad Hoc Tribunals (Oxford University Press, 2005), 256; A. Cassese, International Criminal Law (2nd edn, Oxford University Press, 2008), 229. Mugesera v. Canada (Minister of Citizenship and Immigration), above n. 361, paras. 84–85. W. Dautermann, ‘Internet Regulation: Foreign Actors and Local Harms: At the CrossRoads of Pornography, Hate Speech and Freedom of Expression’, North Carolina Journal of International and Commercial Regulation, 28 (2002), 207–208; Mettraux, International Crimes and the Ad Hoc Tribunals, above n. 369, 255–256.

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hinted at the commission of incitement to genocide by ‘any other means of audiovisual communication’372 when analysing the ‘public’ element of incitement to genocide. In the event therefore that a statement inciting genocide is posted on a website, how is the territorial reach of the Court’s jurisdiction to be assessed? The answer to this question largely depends on two separate considerations; first, the interpretation of the specific crime and secondly the interpretation of Article 12(2)(a) of the Statute. The nature of the offence is not immediately apparent from the text of the Rome Statute, and Elements of Crimes are not available for this offence.373 This has led commentators to suggest that the Court will enjoy greater freedom in divining its elements and thus will probably rely more on the jurisprudence of the ad hoc tribunals on the matter.374 That said, the prevailing view is that this is also an inchoate crime as regards the Rome Statute, on the basis of the relationship of incitement to the other modes of responsibility in Article 25(3) and the preparatory works of the Statute.375 The ICTR has defined ‘direct and public incitement to genocide’ as follows: ‘directly provoking the perpetrator(s) to commit genocide, whether through speeches, shouting or threats uttered in public areas or at public gatherings, or through the sale or dissemination, offer for sale or display of written material or printed matter in public places or at public gatherings, or through the public display of placards or posters, or through any other means of audiovisual communication.’376 Incitement

372

373

374 375

376

ICTR, Prosecutor v. Jean-Paul Akayesu, above n. 360, para. 562; recently affirmed in ICTR, Prosecutor v. Callixte Kalimanzira, above n. 360, para. 515. Further, R. Cryer et al., An Introduction to International Criminal Law and Procedure (2nd edn, Cambridge University Press, 2010), 381, who read this to imply that ‘the internet and e-mail may raise interesting questions regarding the “public” requirement’. See Preparatory Commission of the International Criminal Court, Proposal Submitted by the United States of America, UN Doc. PCNICC/1999/DP.4/Add.3 (4 February 1999). The proposal was rejected on the argument that the topic was beyond the mandate of the Commission. M. Kelt and H. von Hebel, ‘General Principles of Criminal Law and Elements of Crimes’, in R.S. Lee et al. (eds.), The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence (Ardsley, NY: Transnational, 2001), 21. G. Boas et al., Elements of Crimes under International Law (Cambridge: International Criminal Law Practitioner Library Series, Cambridge University Press, 2008), 204. W.A. Schabas, The International Criminal Court: A Commentary on the Rome Statute (Oxford University Press, 2010), 438. See also Ambos, ‘Article 25’, above n. 363, 760– 761; Eser, ‘Individual Criminal Responsibility’, above n. 364, 803–805. Contra, T.E. Davies, ‘How the Rome Statute Weakens the International Prohibition on Incitement to Genocide’, Harvard Human Rights Journal, 22 (2009), 260 et seq., 264. ICTR, Prosecutor v. Jean-Paul Akayesu, above n. 360, para. 559.

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therefore needs to meet the criteria of ‘public’ and ‘direct’. ‘Directness’ depends on the formulation of the message as an actual invitation for the commission of genocidal acts.377 The public element is particularly important here, since the internet can be considered as an instrument par excellence for making views accessible to the public throughout the world. In this framework, the question is how little of the incitement needs to take place publicly on State Party territory for the Court to have territorial jurisdiction. If one accepts the inchoate nature of the crime, that would raise the question of the location where this act – for present purposes ‘the display of written material through means of audiovisual communication’ – took place. So far there is no international case law on point. With all due caution, however, one could readily envisage the exercise of jurisdiction by the ICC following in the footsteps of national courts when tackling the online display of revisionist statements or hate speech offences on the internet under national criminal law. After all, as the ICTR has explained, there is a close affinity between the two types of crimes: incitement to genocide constitutes hate speech that specifically provokes another to commit genocidal acts.378 Accordingly, since the ‘display’ of the inciting statement is part of the offence, to the extent that such online display takes place within State Party territory, the Court would be able to exercise objective territorial jurisdiction. This would seem consistent with the nature of the criminal prohibition, as one intended to avert the risk or danger of setting in motion genocidal acts.379 In this context, the accessibility of the statement to computers located in State Party territory would suffice for the purposes of asserting territorial jurisdiction on the basis of the constructive localization of a constituent element of the offence there. 377

378 379

Jean-Paul Akayesu Trial Chamber, above n. 360, paras. 561–562; Ferdinand Nahimana et al. Trial Chamber (Media), above n. 360, para. 431; Timmermann and Schabas, ‘Incitement to Genocide’, above n. 363, 156 with further references. The internet may pose difficulties on the interpretation of the term ‘direct incitement’. This is particularly because of the different understanding of euphemistic expressions or other coded messages by foreign (non-native-speaking) audiences. See in detail, Jean-Paul Akayesu Trial Chamber, above n. 360, paras. 556–557; ICTR, Prosecutor v. Georges Ruggiu (Judgment and Sentence) ICTR-97–21–1 (1 June 2000), para. 44; further, Timmermann and Schabas, ‘Incitement to Genocide’, above n. 363, p. 156 et seq; Schabas, Genocide in International Law, above n. 369, 331–332 et seq. Jean-Paul Akayesu Trial Chamber, above n. 360, para. 557, Prosecutor v. Ferdinand Nahimana et al., above n. 360, paras. 692, 696, 715. See above n. 366.

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On the other hand, in the unlikely event that incitement is construed as requiring some connection with actual genocidal acts, then mere accessibility to the website would likely not constitute a sufficient connecting link under classic objective territorial jurisdiction.380 In that context, jurisdiction would probably require also proof of third-party perception and action, namely that the statement was read and acted upon by individuals in State Party territory. Finally, the situation would be more interesting depending on the Court’s construction of the criminal act of ‘display’381 through the online systems involved. Therefore, if the Court understood the criminal conduct as the act of making information available on computer screens in State Party territory, then objective territoriality would apply in the rather classic formulation of constituent part commission on State Party territory. On the other hand, if the Court considered that the conduct is constituted by uploading a statement and maintaining a website in a State not Party, but the effect thereof – the display in State Party territory computers – takes place on State Party territory, then the Court would likely (need to) apply the effects doctrine for the purposes of territorial jurisdiction.382 Finally, the Court could ascribe to a rule of reason, on the basis of a sufficiently close connection with State Party territory.383 In doing so, the Court could consider that, geographically, the electronic communication occurs through a combination of the location of (i) the content-provider, (ii) the host server, (iii) the user’s server and (iv) the user.384 All these links are necessary; the act of ‘display’ over the internet to a user cannot take place if one of them is absent. Thus, the existence of any such link in State Party territory would advocate in favour of the Court’s territorial jurisdiction. In general, it is unclear whether any such link by itself is sufficient to establish territorial jurisdiction. The standards vary. The location of the attacked system or of the server hosting the material are all encountered 380

381 382 383 384

‘Unlikely’ insofar as this is best attributed to instigation or complicity to crimes against humanity, as opposed to incitement. Timmermann and Schabas, ‘Incitement to Genocide’, above n. 363, 159; Ambos, ‘Article 25’, above n. 363, 761. See Jean-Paul Akayesu Trial Chamber, above n. 360, para. 559. This argument was originally made by Hayashi, ‘Objective Territorial Principle or Effects Doctrine?’, above n. 241, 298–299 in the Yahoo! Cases and used here by analogy. On effects and rule of reason analysis see Section 6.3.7. O. Bigos, ‘Jurisdiction over Cross-Border Wrongs on the Internet’, International and Comparative Law Quarterly, 54(3) (2005), 592 (also for emails). For the corresponding situation in ‘cloud services’, N.A. Kazia, ‘An Overview of Cloud Computing and its Legal Implications in India’, Computer and Telecommunications Law Review, (2012), 49–51.

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in practice as sufficient territorial links.385 Moreover, the answer to this question depends on the role of a server for the commission of the particular crime. A server may be considered to act as the agent through which the principal acts, for example,386 or as an instrument of the crime.387 Evidently, enforcement difficulties and potential conflicts of jurisdiction similar to the Yahoo! Case cannot be excluded, particularly if such speech is constitutionally protected in the State where the suspect is located. That said, however, the jurisdiction of the ICC is not conditional either upon the acceptance of the crimes codified in the Statute by States not Parties, or upon prior custody of the accused. To conclude, incitement to genocide through the internet poses difficult questions, for which no safe answers are currently available. The Court’s construction of the offence, together with its interpretation of Article 12(2)(a) of the Rome Statute, will both have an important role to play in the future disposition of such interesting issues.

5.7 Conclusion The application of Article 12(2)(a) ICC Statute brings to the fore important questions, such as whether the prescription of Article 12 suffices for the territorial extension of the scope of the Court’s jurisdiction through judicial interpretation and, if so, what the limits are to such interpretation. On the one hand, faithful to a strict adherence to the spirit of the principle of legality as articulated in substantive criminal law, it can be argued that the ICC’s jurisdiction is limited only to cases, where the ‘conduct in question’ occurs within the territory of a State Party. This strict approach would be consistent with the proposition that the substantive principle of legality applies (or should apply) to questions of jurisdiction, as criminal jurisdiction involves the exercise of power which may restrict individual freedom and the liberty of a person. In favour of this suggestion could be additionally invoked the need to interpret the same expressions in different parts of the Statute in a uniform manner, as well as the position assumed by some delegations in the Aggression Working Group, that Article 30 ICC Statute should be kept in mind when discussing Article 12(2)(a). Finally, this position would be favoured also by 385 386 387

See above under ‘EU law’ Section 5.6.2.2 and ‘national law’, Section 6.7.3. R. v. Sheppard and Whiltle, above n. 242, para. 22. Further, M. Dyson, ‘R. v. Sheppard (Simon Guy): Public Order on the Internet’, Archbold Review (2010) 7. See above n. 325, with references.

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an argumentum a contrario, according to which the drafters at the Rome Conference had at their disposal the formulations endorsed in a number of other international treaties, where reference was made to the exercise of jurisdiction when a crime is committed ‘in whole or in part’ within State territory. By opting for the existing formulation, however, the wording of Article 12 could be seen as a silent rejection of the ‘in whole or in part’ approach, as well as other interpretative approaches to territorial jurisdiction. This would indicate that the Court’s territorial reach was intended to be strictly circumscribed to cases where the entire criminal conduct took place within a State Party. Last, this argument would perhaps find further support in a more ‘State-sovereignty’ approach to the question of the limits imposed on the Court’s power to determine its own jurisdiction by the delegation of authority given to it by States Parties. The main argument would stem here from the premise that the Court, in the exercise of its comp´etence de la comp´etence, cannot exceed the limits of the power explicitly delegated to it by States Parties, in this case in Article 12(2)(a) ICC Statute. From this perspective, while the Lotus dictum is applicable for State criminal jurisdiction, a distinction should be made between States, which enjoy full powers on the international plane, and the ICC – an international legal person of limited, specified competence, strictly delineated by the States Parties’ acceptance of its jurisdiction under the Statute. While State competence may therefore be said to be properly regulated by the Lotus approach, the Court’s operation should be properly limited according to the principle of ‘speciality’. In this context, in light also of Article 10 ICC Statute, which is said to insulate Part II from further developments in customary law, it could be asserted that the limits to the Court’s geographical reach are to be deduced strictly from the texts agreed upon and included in Article 21(1) ICC Statute, delimiting the Court’s discretion to decide the matter. In this scenario, an extensive approach to the Court’s jurisdiction under Article 12(2)(a) would be possible under Articles 21(1)(b) and 21(1)(c) of the Statute. It would fall therefore upon the Prosecutor to prove to the Court’s Chambers that a certain extensive approach to territorial jurisdiction is permissible, because it has attained the status of a rule of customary law, it is provided by ‘applicable treaties’ or accepted under general principles of law. On the other hand, a persuasive argument could be made in favour of the position that an expansive approach to the Court’s territorial jurisdiction is not contingent either upon its explicit inclusion in the Statute or

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upon a prior finding that objective territoriality and other fictions have become norms of at least customary law quality. From this perspective, ‘reading’ territorial constructions in the Rome Statute remains a matter falling within the Court’s power of interpretation of the limits of its own authority under the rules of interpretation expounded in the Statute and its jurisprudence. If this approach is followed, the Court would not need to engage immediately in the meticulous, tedious and possibly inconclusive comparative analysis suggested above, save perhaps by way of confirmation of findings already made through interpretation. In this case, the Court, starting from Article 12(2)(a) ICC Statute, would simply assert that its power is regulated from this provision and that the limits to the exercise of its authority are to be deduced by interpreting this provision taking into account the ‘authoritative guide’, the preparatory works and Article 21(3) ICC Statute, in light of the principle of non-intervention and the human rights of the accused. In this process of interpretation, rules of international law may still have a role to play, consistently with Article 31(3)(c) VCLT. This approach would seem to be more consistent with the Court’s character as a permanent, independent, international judicial institution, possessing the power to determine the limits of its own jurisdiction and set up to serve an identifiable set of objects and purposes. It would also not pose any threats to the rights of the accused and the requirements of a fair trial. In fact, human rights jurisprudence seems to indicate that the requirements of fair trial appear to be satisfied when the interpretation adhered to is ‘reasonable’ in the circumstances – ambiguous though this standard may be. Taking into account Article 21(3) ICC Statute, it would seem that this is the appropriate course of legal analysis to be applied. The statements of States in the Aggression Working Group, advocating for the Court’s freedom of interpretation, as well as the difficult negotiating circumstances in the last days of the Rome Conference, further support this position. It is important to recall that the parts of the Statute were negotiated in different committees operating simultaneously. Moreover, in the crucial last days and hours of negotiation of Article 12(2), there was lack of centralized drafting coordination through the Drafting Committee. The prevailing negotiating conditions of that time make it difficult to compare the Rome Statute’s formulation in Article 12(2)(a) with that of other treaties, as well as to deduce the intentions of the negotiators through arguments to the contrary. Furthermore, on the question of delegation, it would seem that, while the Court is a creature of State consent, the power to determine its own

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jurisdiction does not flow from that consent. It is not an attributed power, which the Court would not have if the Statute did not explicitly provide for it, but an inherent power of every Court operating on the national and international level. As Article 12(1) provides, the Court has its own jurisdiction, originally universal in nature, which is limited in certain cases of specific trigger mechanisms by the requirements of territoriality or nationality. This appears to be the meaning of the phrase that, upon becoming party to the Statute, a State ‘thereby accepts the jurisdiction of the Court’. Once the Court was created and the Rome Statute entered into force, the Court acquired a power incidental to its existence as a judicial institution and independent of the will of States Parties. Article 19(1) is simply declaratory. It does not create a power that the Court would otherwise not possess. As such, it does not seem that it would be appropriate to subject this process of interpretation to any limitations other than those perhaps that relate to the Court’s own judicial function and international law, such as the principle of non-intervention and human rights law. It remains at the Court’s discretion how to best use that power. Finally, in this context, it would seem that the Court’s position does not differ substantially from that of certain national courts which, on the basis of a general prescription in a national criminal code or legislation, adopted a wider approach as to the geographical scope of their respective States’ competence.388 It could be said, in closing, that the Court should be entitled on a par with national courts to consider the matter of the geographical scope of its authority as a matter of interpretation. Bearing in mind this position, Chapter 6 will be devoted to the examination of whether the Court, in the context of its power to interpret Article 12(2)(a) ICC Statute, may use the ‘effects’ doctrine of primarily antitrust law origin, in order to extend through judicial interpretation the geographical scope of its jurisdiction. 388

See above Section 4.3.2, n. 41 and text.

6 The effects doctrine

6.1 The problem and the structure of the argument: between policy and law The application of objective territorial jurisdiction under Article 12(2)(a) ICC Statute does not seem to be an extremely controversial issue. Commentators1 and states2 seem to accept its possible application. In this chapter, the issue to be explored is whether the Court can have recourse to the ‘effects doctrine’ on jurisdiction in the context of a teleological interpretation of Article 12(2)(a) ICC Statute. The problem properly stated can be seen as an extension of objective territoriality. The main difference is that the critical effects are not elements of the description of the crime in question (elements of the locus delicti), but other broader social or economic consequences that are less proximate to the main crime (other territorial links to the crime).3 This would be the case, for example, when due to the massacres committed 1

2

3

S. Bourgon, ‘Jurisdiction Ratione Loci’, in A. Cassese et al. (eds.), The Rome Statute of the International Criminal Court: A Commentary (Oxford University Press, 2002), vol. I, 559, 567; M. Wagner, ‘The ICC and its Jurisdiction: Myths, Misperceptions and Realities’, Max Planck Yearbook of United Nations Law, 7 (2004), 409, 477–478; I. Bantekas, ‘Head of State Immunity in the Light of Multiple Legal Regimes and Non-Self-contained System Theories: Theoretical Analysis of ICC Third Party Jurisdiction against the Background of the 2003 Iraq War’, Journal of Conflict and Security Law, 10 (2005), 21, 39–40; B.B. Jia, ‘The International Criminal Court and Third States’ in A. Cassese et al. (eds.), The Oxford Companion to International Criminal Justice (Oxford University Press, 2009), 160–161; K.S. Gallant, The Principle of Legality in International and Comparative Criminal Law, in J. Crawford and J.S. Bess (eds.), Cambridge Studies in International and Comparative Law (New York: Cambridge University Press, 2009), 342; R. Rastan, ‘The Jurisdictional Scope of Situations Before the International Criminal Court’, Criminal Law Forum, 23 (2012), 1, 17–20. ICC Assembly of States Parties, ‘Report of the Special Working Group on the Crime of Aggression Assembly of States Parties’ Seventh Session (Second Resumption) of the Assembly of States Parties ICC-ASP/7/SWGCA/2 (20 February 2009), paras. 38–39. H.D. Wolswijk, ‘Locus Delicti and Criminal Jurisdiction’, Netherlands International Law Review, 66 (1999), 361, 366.

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against a civilian population in a State not Party in the context of a Staterun campaign to exterminate a certain tribe, there is a massive exodus of refugees to neighbouring States Parties. This in turn would cause direct, substantial and immediately foreseeable socio-economic effects within State Party territory, including setting up and maintaining refugee camps and keeping people in refugee-camp living conditions. Another similar example may be when, in the context of a campaign of extermination, an international watercourse is deliberately poisoned. This may endanger the livelihood of the targeted population and the population of lower riparian states due to the deprivation of access to water and the destruction of cultivation and livestock dependent on that watercourse. Similar issues would arise when the campaign of extermination in a State not Party would result to the disruption of the flow to neighbouring States Parties of the supply of natural gas or oil in the winter necessary for the survival of the latter’s population. The same outcome could be envisaged due to the destruction of international pipelines in the context of an internal armed conflict. In these situations, do these effects on the population of a State Party originating from crimes occurring in a State not Party suffice for the Court’s jurisdiction under Article 12(2)(a) in the absence of a Security Council referral? If so, what are the necessary safeguards to avoid turning territorial jurisdiction into universal jurisdiction? These are the questions that the present chapter will examine. In Section 6.2, the policy question of the desirability of the adoption of the effects doctrine by the Court will be addressed. In Section 6.3, the legal approach will be more fully developed. In the context of the Court’s jurisdiction to decide on the scope of its jurisdiction, this section will assess whether the Court can teleologically interpret Article 12(2)(a) in that direction. A number of relevant considerations will therefore be examined, such as the nature of the effects, pacta tertiis issues and the collection of evidence. In closing, this chapter will present a jurisdictional rule of reason for the ICC as the ultimate safeguard against the abuse of the effects doctrine and discuss the connection of cases, situations and effects.

6.2 Should the Court adopt the effects doctrine of jurisdiction? The policy approach The positive tradition in international law seems sceptical towards mixing law and policy considerations: ‘if the law is working reasonably well, there will be many, many cases where the law is clear and its application is not really open to question. Therefore no question of policy or a

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policy decision can arise.’4 From that perspective, since the law of State territorial jurisdiction is to a large extent settled, a policy discussion on State territoriality in general would seem pedantic. However, the same cannot be said in the present case. The proposition that an international criminal court would use this admittedly controversial doctrine of territorial jurisdiction for international prosecutions is novel and unprecedented. Accordingly, it is deemed appropriate to dedicate a few lines to the policy aspect of the argument. The first significant policy consideration is akin to that underlying the PCIJ’s reasoning in the Lotus Case.5 Within the framework of the Statute’s existing negotiated limitations, a broad interpretation of the Court’s territorial jurisdiction is required, in order to close as far as possible existing jurisdictional loopholes. Such a loophole exists principally because, in the absence of universal jurisdiction and a Security Council referral, the Court cannot address the ‘domestic conflict’ scenario; namely, the future Pol Pots, who refuse to ratify or accept the Rome Statute, while committing within their territory and against their own nationals ‘core’ crimes.6 In such situations, since the State policy dimension in the commission of mass crimes is particularly present, it is highly unlikely that the territorial State itself will seek to effectively redress these offences. Therefore, prosecution by institutions or States other than the territorial one may be ‘a practical necessity.’7 The application of the effects doctrine may perhaps be one of the ways available to the Court to overcome this difficulty. In answering therefore the ‘policy’ question of whether it is necessary or even desirable to go this ‘extra mile’, it is submitted that this approach is supported by three distinct yet partly intertwined arguments. The first relates to deterrence.8 Arguably, it is necessary to allow the Court to 4 5 6

7 8

R. Jennings, ‘The Proper Reach of Territorial Jurisdiction: A Case Study of Divergent Attitudes’, Georgia Journal of International and Comparative Law, 2 (1972), 35, 39. See Chapter 2. H.P. Kaul, ‘Preconditions to the Exercise of Jurisdiction’, in Cassese et al. (eds.), The Rome Statute of the International Criminal Court, above n. 1, 612; L.N. Sadat, The International Criminal Court and the Transformation of International Law: Justice for the New Millennium (Ardsley, NY: Transnational, 2002), 118, referring to the problem of ‘traveling tyrants’; W.A. Schabas, Genocide in International Law: The Crime of Crimes (2nd edn, Cambridge University Press, 2009), 410. R. v. Finta Judgment [1994], 104 ILR 284, 299 Judgment (SCC) (per LaForest J). For general international criminal law, P. Akhavan, ‘Justice in the Hague, Peace in the Former Yugoslavia?’, Human Rights Quarterly, 20 (1998), 737, 741; P. Akhavan, ‘Beyond Impunity: Can International Criminal Justice Prevent Future Atrocities?’, American Journal of International Law, 95 (2001), 7, 12; D. Wippman, ‘Atrocities, Deterrence and the Limits of International Justice’, Fordham International Law Journal, 23 (2000), 473; J. Ku and J. Nzelibe, ‘Do International Criminal Tribunals Deter or Exacerbate Humanitarian Atrocities?’, Washington University Law Review, 84 (2006), 777.

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exercise territorial jurisdiction on the basis of effects, even if only on a ‘theoretical’ level (at least initially), over an existing or imminent humanitarian tragedy in a State not Party, in the hope of averting the commission of large-scale crimes there. Presumably, this approach would also contribute to the achievement of ‘universalist’ aspirations of equality before the law for all individuals involved in violations of human dignity, life and limb and the promotion of the acceptance of a minimum of moral values shared by all mankind.9 However, one cannot turn a blind eye to the criticism that it is unclear whether this approach would lead to any tangible solutions; after all, deterrence can hardly be measured in terms of lives saved and acts of rape or torture averted.10 It is said to resemble more a goal to be achieved than a fact to be taken for granted, as far as international criminal justice is concerned.11 Furthermore, it is not inconceivable that the threat of ICC prosecution would alert possible suspects to the existence of witnesses or other evidence and ‘force’ them to take measures for their elimination, thus committing further crimes to cover existing ones. The controversy over the ICC and deterrence is one that does not lend itself to unequivocal affirmations. That said, however, the fact remains that the Court lists deterrence among the crucial purposes underlying its operation.12 In this spirit, the effects doctrine could function as a mechanism used in that direction. The second argument relates to the purposes of the application of the effects doctrine. In the context of antitrust law, the effects doctrine 9

10 11 12

This is inspired by the ideal of civitas maxima. E.M. Wise, ‘Extradition: The Hypothesis of a Civitas Maxima and the Maxim Aut Dedere Aut Judicare’, Revue Internationale de Droit Penal, 62 (1991), 109–134; M.C. Bassiouni and E.M. Wise, The Duty to Extradite or Prosecute in International Law: Aut Dedere Aut Judicare (Dordrecht: Martinus Nijhoff Publishers, 1995), 26–42; M.C. Bassiouni, Introduction to International Criminal Law (2nd rev. edn, Leiden: Martinus Nijhoff, 2012), 35–44; H. van der Wilt, ‘Equal Standards? On the Dialectics between National Jurisdictions and the International Criminal Court’, Journal of International Criminal Justice, 8 (2008), 229, 256–267; Inter-American Court of Human Rights, Advisory Opinion on Juridical Condition and Rights of the Undocumented Migrants (concurring opinion of Judge A.A. Canc¸ado Trindade), OC-18/03, (17 September 2003), para. 4–12. F. M´egret, ‘Three Dangers for the International Criminal Court: A Critical Look at a Consensual Project’, Finnish Yearbook of International Law, 12 (2001), 193, 202–207. Ibid., 202–203. Prosecutor v. Laurent Koudou Gbagbo (Judgment on the Appeal of Mr Laurent Koudou Gbagbo Against the Decision of Pre-Trial Chamber I on Jurisdiction and Stay of Proceedings) ICC-02/11–01/11–321 (OA 2) (12 December 2012), para. 83 (hereinafter, Gbagbo Jurisdictional Appeal Decision); Situation in the Democratic Republic of the Congo (Judgment on the Prosecutor’s Appeal against the Decision of the Pre-Trial Chamber I Entitled ‘Decision on the Prosecutor’s Application for Warrants of Arrest, Article 58’) ICC-04– 01–169 (13 July 2006), para. 75 (hereinafter, Lubanga Arrest Warrant Appeal).

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ensures that geographical distance as such does not entail immunity from antitrust prosecution. It is used as a means to the ends of promoting consumer and social welfare as well as economic efficiency.13 Competition law and international criminal law are therefore on the same page. They both aim to ‘end impunity’ and ensure that there are no ‘safe havens’ for perpetrators of antitrust violations and core crimes, respectively. Their difference is that, while in international criminal law there has been significant agreement between states and substantive harmonization on the prohibited conduct for a long time, that is not the case for competition law.14 The lack of harmonization of the values and rules in competition law was largely responsible for the critique against the effects doctrine as a means used to unilaterally impose national competition law concepts and values on other States.15 From an internationally oriented policy approach, compared to the international solidarity between states in the fight against ‘ordinary’ crime16 or ‘the fight against restrictive practices, which harm the consumer and keep prices high’,17 the need to protect fundamental common 13

14

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16

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R. Higgins, Problems and Process: International Law and How We Use It (Oxford: Clarendon Press and New York: Oxford University Press, 1994), 77–8; B. Sufrin, ‘Competition Law in a Globalised Marketplace: Beyond Jurisdiction’, in P. Capps et al. (eds.), Asserting Jurisdiction: International and European Perspectives (Portland, OR: Hart, 2003), 105–106; United States v. Nippon Paper Industries Co. Ltd, 109 F.3d 1 (1st Cir., 1997), 8. H.H. Koh, ‘International Business Transactions in United States Courts’, Recueil des Cours de l’Acad´emie de Droit International, 261 (1996), 9, 38 ; A.A. Foer, ‘The Goals of Antitrust: Thoughts on Consumer Welfare in the US’, in P. Marsden (ed.), Handbook of Research in Trans-Atlantic Antitrust (Cheltenham: Edward Elgar, 2006), 566–586; A. Johnston and E. Powles, ‘The Kings of the Worlds and their Dukes’ Dilemma: Globalisation, Jurisdiction and the Rule of Law’, in P. Slot and M. Bulterman (eds.), Globalisation and Jurisdiction, Meijers Series, MI 76 (The Hague: Kluwer Law International, 2004), 45–46; M.J. Trebilock and E.M. Iacobucci, ‘National Treatment and Extraterritoriality: Defining the Domains of Trade and Antitrust Policy’, in R.A. Epstein and M.S. Greve (eds.), Competition Laws in Conflict, Antitrust Jurisdiction in the Global Economy (Washington, DC: AEI Press, 2004), 152–154. R. Jennings, ‘Extraterritorial Jurisdiction in the United States Antitrust Laws’, British Yearbook of International Law, 33 (1957), 146, 175; R. Jennings, ‘The Proper Reach of Territorial Jurisdiction’, above n. 4, 36; R. Grundman, ‘The New Imperialism: The Extraterritorial Application of United States Law’, International Lawyer, 14 (1980), 257; J. Adolphsen, ‘The Conflict of Laws in Cartel Matters in a Globalised World: Alternatives to the Effects Doctrine’, Journal of Private International Law, 1 (2005), 151, 157. Council of Europe, Extraterritorial Criminal Jurisdiction (European Committee on Crime Problems, 1990), 27; cf. D.H.W. Henry, ‘The United States Antitrust Laws: A Canadian Viewpoint’, Canadian Yearbook of International Law, 8 (1970) 249, 282. Higgins, Problems and Process, above n. 13, 77.

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values of humanity through the punishment of massive human rights violations appears significantly greater.18 On a scale of values, not even the strictest of positivists would contest the view that human lives in situations of genocide (usually in the developing world) are not less worthy of protection than the spending capacity of a consumer and the smooth operation of a certain market (usually in the developed world). To put it bluntly, since the effects jurisdiction can be used on the national level to catch the perpetrators of pricefixing conspiracies in, e.g., the thermal fax paper market (as happened in the Nippon Case), it should be used also on the international level for the prosecution of individuals, for whom there is reliable evidence of committing large-scale atrocities in States not Parties territory, in the absence of a Security Council referral. Therefore, it could be argued that, considering the interests involved, the rule of effects jurisdiction could be applicable a fortiori in the case of the most serious crimes of concern to the international community as a whole. The third argument relates to the complementary operation of the Court. It has been argued that the rejection of universal jurisdiction at the Rome negotiations was a realistically positive development, since it encouraged states to ratify the Statute and make the Court operational soon after its signature. Any remaining jurisdictional loopholes could be addressed by national courts operating on the basis of universal jurisdiction.19 Although this position does express some ‘hard truths’ about contemporary politics, from the point of view of the Court it could be contested on at least three specific aspects. The first relates to complementarity which, formally speaking, seems to concern admissibility, not jurisdiction. In assessing the preconditions of the Court’s jurisdiction, in the absence of a Security Council referral, the Court’s jurisdiction does not depend on considerations of willingness, ability, or gravity, but rather on the application of the rules of territoriality 18

19

For the meaning of international solidarity here, see the comments of Andrea Bianchi in H.G. Maier, ‘Jurisdictional Rules in Customary International Law’, in K.M. Meesen (ed.), Extraterritorial Jurisdiction in Theory and Practice (The Hague: Kluwer Law International, 1996), 85. O. Bekou and R. Cryer, ‘The International Criminal Court and Universal Jurisdiction: A Close Encounter?’, International and Comparative Law Quarterly, 56 (2007), 49, 67–68; R. Cryer et al., An Introduction to International Criminal Law and Procedure (2nd edn, Cambridge University Press, 2010), 167; S.A. Williams and W.A. Schabas, ‘Article 12’, in O. Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court: Observers’ Notes, Article by Article (Munich: Beck-Hart-Nomos Publishing, 2008), 561; contra, Kaul, ‘Preconditions to the Exercise of Jurisdiction’, above n. 6, 607.

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and nationality.20 The Court is directed to examine the admissibility requirements after it has satisfied itself that it has jurisdiction, according to Rule 58(4) of the Rules of Procedure. Complementarity will then be examined, in the event of a conflict of jurisdiction between the Court and a State.21 The second point refers to the existence of universal jurisdiction as a norm and its similarity to the effects doctrine.22 Arguably, the effects doctrine and universal jurisdiction, if applicable in the same set of circumstances, would demonstrate a certain resemblance, due to their remoteness in the connection to the actual crime and their exponential territorial reach. In this line of thinking, the application of the effects doctrine might be seen as an attempt to rename universal jurisdiction and apply it indirectly in the ICC. Its use may be criticized as an attempt to include universal jurisdiction by means of judicial interpretation of Article 12(2)(a) instead of an amendment of the provision. Such a course of action would run manifestly contrary to the intentions of the negotiators in light of universality’s clear rejection in Rome.23 In reply, one would need to stress that the basis of universal jurisdiction is the gravity of a certain criminal activity and its impact on the universal ordre public.24 On the other hand, the effects doctrine requires a tangible connection between the crime and the State Party’s territory, certain effects.25 Concretely, consider the case of a massive refugee exodus to a neighbouring State Party of the oppressed people of the State not Party where the crimes are committed. If the Court exercised universal 20

21

22 23 24

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Situation in the Democratic Republic of the Congo (above, n. 12), paras. 69–79; Situation in the Republic of Kenya (Decision pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Kenya) ICC01/09–19 (31 March 2010), para. 40 (hereinafter, Kenya Authorization Decision). Prosecutor v. William Samoei Ruto (Judgment on the Appeal of the Republic of Kenya Against the Decision of Pre-Trial Chamber II of 30 May 2011 entitled ‘Decision on the Application by the Government of Kenya Challenging the Admissibility of the Case pursuant to Article 19(2)(b) of the Statute’) ICC-01/09–01/11 (OA) (30 August 2011), paras. 100–101 (hereinafter, Kenya Admissibility Appeal Decision). M. Akehurst, ‘Jurisdiction in International Law’, British Yearbook of International Law, 46 (1972–1973), 145, 154. Above Chapter 3.4. R. Kolb, ‘The Exercise of Criminal Jurisdiction over International Terrorists’, in A. Bianchi (ed.), Enforcing International Law Norms Against Terrorism (Oxford: Hart, 2004), 249– 250, nn. 80–81; L. Reydams, Universal Jurisdiction: International and Municipal Legal Perspectives (Oxford: Oxford University Press, 2003), 38–42. B.H. Oxman, ‘Jurisdiction of States’, in R. Bernhardt (ed.), Encyclopedia of Public International Law, 3 (Amsterdam: Elsevier, 1997), 55, 58, from the point of view of UNCLOS, it has been suggested that such effects jurisdiction may exist when the effects of maritime pollution or illicit broadcasting are felt by States.

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jurisdiction and considered only the nature of the offences, no territorial connection would be required. On the contrary, under the effects variant of territoriality, territorial effects on State Party territory would need to be demonstrated. The refugee exodus to the territory of a State Party and the production of existing or estimated economic or other effects in that territory would arguably qualify as such. The same could be said, perhaps, in cases where due to crimes committed in the territory of a State not Party, States Parties face the real risk that their population will suffer irreparable harm due to the disruption in the provision of energy (gas, oil) or natural resources (water flow from international rivers).26 Additionally, the effects doctrine is also limited by conditions. Reference to qualifications such as direct, intended, substantial and foreseeable effects are routinely seen in antitrust criminal laws.27 As such, it is not a case of ‘re-inventing universality’; the effects doctrine has its own existence on the normative plane of national and international law as an interpretation of territorial jurisdiction.28 It is not a question of inventing a new norm, but rather one of applying an existing territorial interpretation of localization of criminal activity. It could be also argued that the Court does not need effects jurisdiction, as there are national jurisdictions, which use universal jurisdiction and are consequently both able and willing to examine such situations under national law. This may very well be the case. However, it does not refute the need to have cases heard by an independent international institution, somewhat distanced from interstate politics. After all, a national prosecution premised on universality or other forms of extra-territorial criminal jurisdiction may be construed as an indication of ulterior motivation29 by the State(s) involved.30 26

27 28 29

30

This is inspired by Shany’s argument on human rights treaties and the interpretation of jurisdiction in the light of the effects doctrine. Y. Shany, ‘The Law Applicable to NonOccupied Gaza: A Comment on Bassiouni v. Prime Minister of Israel’, Israel Law Review, 42 (2009), 101, 111–112. See below Section 6.3.6. See above Section 2.4.2.3 on State practice and the effects doctrine under customary law. Instead of others, see the comments from the 2005 discussion in the Institut de Droit International on universal jurisdiction and particularly on the (ultimately rejected) ‘7th Preambular Paragraph of the October 2004 Draft Resolution’, Annuaire de l’Institut de Droit International, 71-II (2005), 200, 207 (per Christian Tomuschat), 210 (per Georges Abi-Saab), 218 (per Hisashi Owada), 227–228 (per Martii Koskenniemi); further, H. Kissinger, ‘The Pitfalls of Universal Jurisdiction’, Foreign Affairs, 80 (2001), 86, 86–96. For Rwanda’s reactions to French extraterritorial criminal jurisdiction over the destruction of President Habyarimana’s aircraft, M. Jamnejad and M. Wood, ‘The Principle of Non-Intervention’, Leiden Journal of International Law, 22 (2009), 345, 372–373, n. 117; V. Thalmann, ‘French Justice’s Endeavours to Substitute for the ICTR’, Journal of

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Moreover, difficulties may arise, should a State Party arrest a third-State national under universal jurisdiction, only to subsequently decide to refer the case to the Court, in order to avoid, e.g., political friction with its State of nationality (unwillingness/inability subsequent to the arrest).31 Could the Court try the suspect? In such circumstances, the Prosecutor would arguably not be able to even open an investigation into the situation, let alone prosecute an individual case, for want of jurisdiction, as universal jurisdiction is not included in the Statute and the preconditions of Article 12(2) are not met. Therefore, in these circumstances, the Court would still remain unable to exercise its authority over ‘domestic scenarios’ and the perpetrators could escape justice. In any event, even if national courts decided to exercise universal jurisdiction, there is always the possibility that national laws may follow different definitions of crimes32 or may even impose obstacles on national prosecutions, which have been largely removed on the ICC level. The typical example is the immunity of Heads of States and other officials and the question of whether Article 27 of the Statute, national laws and customary law on the matter coincide.33 In spite of Article 27, a national judge could consider that the prosecution for such crimes or surrender of suspects to the ICC is barred due to the application of rules of immunity under customary law.34 Therefore, the national application of universal

31

32

33

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International Criminal Justice, 6 (2008), 995, 996. For African Union (AU) reactions to similar Spanish proceedings, Commentator, ‘The Spanish Indictment of High-Ranking Rwandan Officials’, Journal of International Criminal Justice, 6 (2008), 1003, 1010–1011, and the Assembly of the African Union, Decision of the Report of the Commission on the Abuse of the Principle of Universal Jurisdiction, Decision No. Assembly/AU/Dec.199 (XI), Doc. Assembly/AU/14 (XI), 11th Ordinary Session, 30 June–1 July 2008. For the transfer of proceedings scenario, see Chapter 5. For an ultimately aborted historical example of such practice, Trial of Pakistani Prisoners of War (Pakistan v. India) (Request for Indication of Provisional Measures) [1973] ICJ Rep. 328, and Pakistan’s Request for the Indication of Provisional Measures; in more detail, Schabas, Genocide in International Law, above n. 6, 417. W.A. Schabas, ‘The Right to a Fair Trial’, in F. Lattanzi and W.A. Schabas (eds.), Essays on the Rome Statute of the International Criminal Court (Ripa Fagnano Alto: Sirente 2003), 528. In favour of coincidence, P. Gaeta, ‘Official Capacity and Immunities’, in Cassese et al., (eds.). The Rome Statute of the International Criminal Court, above n. 1, 975, 990–1001; A. Bianchi, ‘Immunity versus Human Rights: The Pinochet Case’, European Journal of International Law, 10 (1999), 237; contra, A. Abass, ‘The Competence of the Security Council to Terminate the Jurisdiction of the International Criminal Court’, Texas International Law Journal, 40 (2004–2005), 263, 278–281. Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium) (Judgment) [2002] ICJ Rep. 3, para. 58. J. Dugard, International Law: A South African Perspective

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jurisdiction does not render redundant the argument in favour of the application of the effects doctrine by the ICC.

6.3 Can the Court adopt the effects doctrine? The legal implications The next issue is whether the Court can apply the effects doctrine for the prosecution and punishment of the perpetrators of ‘core crimes’ through a teleological interpretation of Article 12(2)(a) ICC Statute. The following pages will therefore treat the effects doctrine as one of the most recent interpretations of territorial jurisdiction. The use of state criminal jurisdiction over offences committed in whole or in part in State territory is well established in international law. Therefore, the discussion will focus on certain important issues from the perspective of the ICC Statute, such as the use of this doctrine in a criminal context, pacta tertiis objections and collection of evidence. Ultimately, in concluding this chapter, certain considerations relating to the nature of the effects and their classification will be addressed. In this examination, the preparatory works of the Statute do not seem to have a significant role to play. As indicated in Chapter 3, the decision on jurisdiction was postponed until the last moment at the Rome Conference.35 While extensive brainstorming took place in those sessions, the effects possibility was not proposed or discussed. This is not surprising. In the absence of agreement on the question of principle, i.e. the basis of jurisdiction (territoriality and/or nationality versus universality), the likely interpretations of territoriality were too remote an issue. Finally, subsequent practice has no unequivocal answers to offer, either. The incidental discussions on territoriality in the Working Group on Aggression in 2008–2009 were inconclusive and left the matter of interpretation to the judges.36

35

(3rd edn, Lansdowne: Juta, 2005), 207–209; Bantekas, ‘Head of State Immunity’, above n. 1, 25–27; also, Abass, ‘The Competence of the Security Council’, above n. 33, 281; O. Triffterer, ‘Article 27’, in Triffterer (ed.), Commentary on the Rome Statute, above n. 19, 791. From the Court’s practice as regards jurisdiction pursuant to Security Council referrals, Prosecutor v. Al-Bashir (Decision pursuant to Article 87(7) of the Rome Statute on the Failure by the Republic of Malawi to Comply with the Cooperation Requests Issued by the Court with Respect to the Arrest and Surrender of Omar Hassan Ahmad Al-Bashir) ICC-02/05–01/09–139 (12 December 2011), paras. 22–35. 36 See above Section 3.4. See above Section 5.1.1.

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6.3.1 Criminal jurisdiction: the form of liability 6.3.1.1 National legislation The idea of reading the effects doctrine in Article 12(2)(a) largely hinges on two connected questions: whether anti-competitive practices are considered as crimes and correspondingly whether the effects doctrine constitutes a valid legal basis of state criminal jurisdiction under international law. Both questions will now be addressed in turn. The first issue concerns the form of liability imposed for competition law violations and the dichotomy between civil/administrative and criminal responsibility. Recent scholarship on the topic shows that there is significant State practice in support of the proposition that antitrust violations constitute criminal law violations.37 Shaffer and Nesbitt reported in 2011 that more than thirty states from practically every region of the world have criminalized cartel conduct, although the trend is recent and enforcement still at its infancy in some States.38 This can be seen as part of a supranational, or at least transnational phenomenon.39 The United States has paved the way through the implementation of the Sherman Act.40 Collusive conduct, ‘the supreme evil of antitrust law’41 entails serious consequences under US anti-trust law. The 2004 Antitrust Criminal Penalty Enforcement and Reform Act increased maximum fines from $10 million to $100 million and the maximum sentence for individual violators from three to ten years.42 US officials proudly announced in 2004 that foreign executives ‘have served time in US prisons for violating US antitrust laws, whereas extradition of cartel leaders is now frequently 37

38 39

40

41 42

C. Beaton-Wells and A. Ezrachi, Criminalising Cartels: Critical Studies of an International Regulatory Movement (Oxford: Hart, 2011); M. O’Kane et al., The Law of Criminal Cartels: Practice and Procedure (Oxford University Press, 2009); G.C. Shaffer and N.H. Nesbitt, ‘Criminalizing Cartels: A Global Trend?’, Sedona Conference Journal, 12 (2011), 313. Shaffer and Nesbitt, ‘Criminalizing Cartels’, above n. 37, 315, 316 et seq. C. Beaton-Wells and A. Ezrachi, ‘Criminalising Cartels: Why Critical Studies?’, in BeatonWells and Ezrachi, Criminalising Cartels, above n. 37, 11–12 et seq; Shaffer and Nesbitt, ‘Criminalizing Cartels’, above n. 37, 315–316. Older practice and procedure of US law is provided by V.P. Nanda and M.C. Bassiouni, International Criminal Law: A Guide to US Practice and Procedure. Antitrust, Securities, Extradition, Tax and Terrorism (New York City: Practising Law Institute, 1987) and T.L. Banks’ contribution in that volume on ‘International Activities and Criminal Consideration under United States Antitrust Laws’, 51–78. As Banks notes, violations of the Sherman Antitrust Act have been punishable as felonies since 1974. Ibid., 51, n. 3. Verizon Communications Inc. v. Law Offices of Curtis V. Trinko LLP, 540 US 398 (2004), 408. J. Davidow, ‘Recent US Antitrust Developments of International Relevance’, World Competition, 27 (2004), 412; Antitrust Criminal Penalty Enforcement and Reform Act of 2004, Pub. Law 108–237, s. 215(b), 201 (22 June 2004).

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sought’.43 Recent statistics published by the Antitrust Division of the US Department of Justice reveal that the average prison sentence for such violations in the years 2010–2012 was twenty-five months.44 Finally, the United States is reported to have placed individuals accused of anti-trust criminal law violations in Interpol’s ‘Red Notice’ list, in the enforcement of its antitrust criminal statutes.45 The United States is not alone in this practice. Since approximately the turn of the century, there is now a more vibrant discussion than ever around the world on the criminalization of competition law.46 It is remarkable that even the United Kingdom, one of the formerly staunchest opponents of the export of US policy in the field,47 has eventually followed US practice. The 2002 Enterprise Act has made engagement in cartels a criminal offence,48 threatening sentences of up to five years’ imprisonment and/or an unlimited fine.49 In 2001, through an exchange of notes, the United Kingdom amended its 1994 Mutual Legal Assistance Treaty with the United States, effectively repealing the exception of criminal antitrust or competition law cases from the treaty on legal assistance.50 43 44

45

46

47 48 49 50

Davidow, ‘Recent US Antitrust Developments’, above n. 42, 407, 409. See Department of Justice, Antitrust Division, Criminal Enforcement, Fine and Jail Charts through FY 2012, available at: www.justice.gov/atr/public/criminal/264101.html (last accessed 16 February 2013). J.S. Magney and R.C. Anderson, ‘Recent Developments in Criminal Enforcement of US Antitrust Laws’, World Competition, 27 (2004), 101, 105–106. This is a matter of official policy since 1993; M. Bishop, ‘United States v. Nippon Paper Industries Co: Criminal Application of the Sherman Act Abroad’, George Washington Journal of International Law and Economics, 32 (1999), 271, 287. Indicatively, C. Harding, ‘Business Collusion as a Criminological Phenomenon: Exploring the Global Criminalization of Business Cartels’, Critical Criminology, 14 (2006), 188; K.J. Cseres et al., Criminalization of Competition Law Enforcement: Economic and Legal Implications for the EU Member States (Cheltenham: Edward Elgar, 2006); C. Ehlerman and I. Atanasiu, Enforcement of Prohibition of Cartels (Oxford: Hart, 2007), 223–665; M. Furse, ‘Issues Relating to the Enforcement and Application of Criminal Laws in Respect of Competition’, in Marsden, Handbook of Research in Trans-Atlantic Antitrust, above n. 14, 466–492. Rio Tinto Zinc Corpn v. Westinghouse [1978] AC 547, 639 (Eng.) (per Lord Diplock). Enterprise Act 2002, s. 188(1) (Eng.). Ibid., s. 190(1); D. Guy, ‘The UK’s Experience with Criminal Law Sanctions’, in Cseres et al., Criminalization of Competition Law Enforcement, above n. 46, 249–255. Agreement Concerning the Application of the Treaty on Mutual Legal Assistance in Criminal Matters of 6 January 1994, Note No. 34/01, effected by exchange of notes at Washington 30 April and 1 May 2001, entered into force 1 May 2001, State Dept. No. 01–65, available at: Westlaw, 2001 WL 715884. See also the Treaty Between the Government of the United States of America and the Government of Canada on Mutual Legal Assistance in Criminal Matters, Quebec City, 18 March 1985, 24 ILM 1092, where ‘consumer protection laws’, including antitrust laws, are among the specified laws for

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The first extradition case for antitrust offences followed soon thereafter. In the Norris Case, the United States sought the extradition of the defendant from the United Kingdom on charges of anti-trust violations and obstruction of justice. The House of Lords refused the request on grounds of lack of double criminality for the antitrust part, as at the time the conduct charged allegedly took place, it was not criminal in the United Kingdom.51 Mr Norris was, however, extradited for the charges of obstruction to justice and ultimately convicted in the United States to serve 18 months’ imprisonment.52 The case shows that the extradition of UK nationals to the United States to stand trial for violations of US antitrust law is a real possibility.53 In 2008 the first convictions for competition law violations were entered in the United Kingdom, following a plea agreement with the US authorities.54 In France, on the other hand, while there was significant decriminalization in 1986–1987, Article L. 420–6 of the French Commercial Code as currently in force still provides for a term of imprisonment of four years and a fine of 75,000 euros for any natural person who fraudulently takes a personal and decisive part in the conception, organization or implementation of the practices referred to in Articles L.420–1 and L.420– 2.55 In fact, the French Constitutional Council accepted that fundamental guarantees applicable to criminal sanctions would be granted to defendants in such cases involving punitive sanctions short of imprisonment.56 The French authorities were reported in 2004 to have concluded after the 1986 reform fifteen criminal decisions, whereas the Competition Council

51

52 53

54

55 56

which mutual legal assistance was agreed upon between the two parties; Ibid., at 1099, Annex. As such, ‘antitrust crimes fall within the scope of the treaty’; S.W. Waller, ‘The Internationalization of Antitrust Enforcement’, Boston University Law Review, 77 (1997), 343, 366. Norris v. Government of the United States and Others [2008] UKHL 16, para. 63 (Eng.), House of Lords sitting as an Appellate Committee (Criminal Appeal on Extradition from the High Court). US v. Ian Norris, 753 F. Suppl.2d 492 (ED Pa. 2010); further, Shaffer and Nesbitt, ‘Criminalizing Cartels’, above n. 37, 333–334. J.M. Joshua, ‘The Brave New World of Extradition: A North Atlantic Treaty Alliance against Cartels?’, in Marsden (ed.), Handbook of Research in Trans-Atlantic Antitrust, above n. 14, 493. Although appeal was allowed on the sentence; R. v. Whittle, R. v. Brammar, R. v. Allyson [2008] EWCA Crim. 2560 (Eng.); M. Lucraft, T. Payne and D. Rawlings, ‘The Dunlop Three: The Cartel Offence Makes Its Debut’, [2009–1] Archbold News, 7–9. Art. L. 420–6 C. com. (Fr.). J. Riffault-Silk, ‘Jurisdictional Control over the Acts of Antitrust Authorities under French Experience’, in E.A. Raffaelli (ed.), Antitrust between EC Law and National Law, Part IV: VI Conference, 13–14 May, Casa dei Caravessi, Treviso, Colloque de l’ Union des advocats europ´eens (Brussels: Bruylant, 2005), 173–177.

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was said to have dealt with 100 proceedings per year over the same period leading to an average of thirty-seven decisions on sanctions per year. The amount of criminal fines in the same period (1986–2004) ranged between 1.524 to 12.195 euros.57 The French Competition Authority referred the first criminal cartel case to the French Prosecutor in 2004 and established the list of criteria that it would consider in deciding to refer such matters for criminal proceedings.58 A preliminary research demonstrates that criminal antitrust enforcement is provided for in a number of states,59 including Japan,60 Canada,61 Ireland,62 Norway,63 Brazil64 and the Russian Federation.65 The Irish 57 58

59

60

61

62

63

64

65

Ibid., 160. Conseil de la Concurrence, D´ecision n° 04-D-07 du 11 mars 2004 relative a` des pratiques relev´ees dans le secteur de la boulangerie dans le d´epartement de la Marne, 11 March 2004 (bakery cartel, Marne); further, O’ Kane, The Law of Criminal Cartels, above n. 37, 297–298. OECD Report, Fighting Hard-Core Cartels: Harm, Effective Sanctions and Leniency Programmes (2002), 82, available at: www.oecd.org/dataoecd/49/16/2474442.pdf (last accessed 18 February 2013), names the following states that provide for imprisonment for cartel activity; Canada (5 years per count), Germany (5 years per count of collusive tendering), Ireland (2 years), Japan (3 years), Korea (3 years), Norway (6 years), Slovak Republic (5 years), United States (3 years). A fuller list of the available sanctions is provided in Annex B of the Report. From the literature, extensive analysis is offered by O’ Kane, The Law of Criminal Cartels, above n. 37, 288–327. Chapter XI, Arts. 89–100, as amended, of ‘Act Concerning Prohibition of Private Monopolization and Maintenance of Fair Trade, (Act No. 54 of 14 April 1947)’, in A. Inoue, Japanese Antitrust Law Manual: Law, Cases and Interpretation of the Japanese Antimonopoly Act (Alphen aan den Rijn: Kluwer Law International, 2007), vol. XXVII, 120–122, 159, available at: www.jftc.go.jp/en/legislation guidelines/ama/pdf/amended ama09.pdf (last accessed 18 February 2013); Also, ‘Rules of Compulsory Investigation of Criminal Cases by the Fair Trade Commission: Fair Trade Commission Rule No. 6 of 2005’, ibid., at 283–284, available at: www.jftc.go.jp/en/pressreleases/uploads/2005-Oct-6 002.pdf (last accessed 18 February 2013). Competition Act, RSC 1985 (Can.), c. 34, s. 45, Part VI, Offences in Relation to Competition, available at: http://laws-lois.justice.gc.ca/eng/acts/C-34/page-27.html (last accessed 18 February 2013). Competition Act, 2002 (Ir.), s. 8, (Penalties and Proceedings in Relation to Offences under Sections 6 and 7), available at: www.irishstatutebook.ie/2002/en/act/pub/0014/ sec0008.html#partii-sec8 (last accessed 14 February 2013) (fines or/and imprisonment not exceeding 5 years at maximum). Competition Act, 5 March 2004 No. 12 (Nor.) §30, (fines or imprisonment up to 3 years), available at: www.konkurransetilsynet.no/en/legislation/The-Competition-Act-of-2004/ (last accessed 14 February 2013). Federal Economic Crimes Law, No. 8137/90, Art. 4, which provides for imprisonment from 2 to 5 years and fines for criminal conduct such as price-fixing, market division, predatory pricing and others. OECD, Competition Law and Policy in Brazil: A Peer Review (Paris: OECD, 2005), 69–70, available at: www.oecd.org/daf/competition/ prosecutionandlawenforcement/35445196.pdf (last accessed 11 February 2013). St. 178 Ugolovnyi Kodeks Rossiiskoi Federatsii (UK RF) (Criminal Code) (Russ.).

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competition authorities in 2006 boasted the first competition law conviction entered by a jury in Europe.66 International cooperation within the framework of the OECD and the International Competition Network has facilitated sharing practices and fostered policy convergence on the matter.67 In this context, two points are important. First, there is no commonly identified and uniform ‘harm’ underpinning the criminalization of this conduct across frontiers. The criminalization foundation varies according to local perceptions of the type of harm inflicted by antitrust conduct.68 It is a veritable ‘patchwork of criminalization’, involving considerations of harm to the consumer (consumer protection), harm to the proper administration of justice (obstruction of justice) and harm due to fraudulent behaviour (fraud).69 Secondly, and critically connected with the first observation, although cartels are increasingly criminalized, there is an apparent lack of uniformity in national substantive and procedural criminal law as regards their criminal treatment.70 On the other hand, there are also States that feel more ambivalent towards the criminalization of such conduct. Germany today prosecutes bid-rigging, but does not criminalize other forms of competition law infringement.71 A few States have de-criminalized competition law violations.72 Finally, at the institutional EU level, the terms 66

67 68 69 70

71

72

Irish Competition Law Authority, Annual Report 2006, 6, available at: www.tca.ie/images/ uploaded/documents/2007--02--28 Annual Report 2006.pdf (last accessed 19 February 2013). Further on Irish practice, M. Furse, The Criminal Law of Competition in the UK and in the US: Failure and Success (Cheltenham: Edward Elgar, 2012), 177 et seq. Shaffer and Nesbitt, ‘Criminalizing Cartels’, above n. 37, 330–333 with references. C. Harding, ‘Capturing the Cartel’s Friends: Cartel Facilitation and the Idea of Joint Criminal Enterprise’, European Law Review, 34(2) (2009), 304–305. Ibid., 304–305. Further, Harding, ‘Business Collusion as a Criminological Phenomenon’, above n. 46, 189 et seq. A. Ezrachi and J. Kindl, ‘Cartels as Criminal? The Long Road from Unilateral Enforcement to International Consensus’, in Beaton-Wells and Ezrachi, Criminalising Cartels, above n. 37, 423–424. C. Vollmer, ‘Experience with Criminal Law Sanctions for Competition Law Infringements in Germany’, in Cseres et al., Criminalization of Competition Law Enforcement, above n. 46, 260–262; OECD, Reviews of Regulatory Reform, Regulatory Reform in Germany, The Role of Competition Policy in Regulatory Reform (Paris: OECD, 2004), 15, available at: www. oecd.org/regreform/32407554.pdf (last accessed 18 February 2013). France, the Netherlands, Austria and Luxembourg, in particular; W.P.J. Wils, ‘Is Criminalisation of EU Competition Law the Answer?’, in Ehlerman and Atanasiu, Enforcement of Prohibition of Cartels, above n. 46, 286–288; Shaffer and Nesbitt, ‘Criminalizing Cartels’, above n. 37, 320. Nonetheless, French law does retain some criminal provisions, above

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‘quasi-criminal’73 or ‘not criminal’74 are used. However, the ECJ has expressly applied criminal law guarantees in cases concerning fines in antitrust cases – although so far it has stopped short of calling such proceedings ‘criminal’.75 The above practice shows that criminal punishment is increasingly being used in national law for antitrust violations. This has been seen as a progressive development, in terms of enhancing deterrence in the fight against restrictive commercial practices.76 The practice demonstrates a clear trend towards criminalization. Although de-criminalization takes

73

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n. 55. Chile under Law 19.911 of 14 November 2003 has eliminated imprisonment but increased fines. OECD, Competition Law and Policy in Chile: A Peer Review (Paris: OECD, 2004) 7–8, 40, 67, available at: www.oecd.org/dataoecd/43/60/34823239.pdf (last accessed 16 February 2013). Recently, Opinion of A.G. Kokott in the Joined Cases C-628/10 P and C-14/11 P, Alliance One International, Inc. and Standard Commercial Tobacco Co., Inc. v. European Commission and European Commission v. Alliance One International, Inc. and Others [2012] 5 CMLR 14, paras. 2, 111, n. 66, with references. Note also the Joined Opinions of A.G. Westerdorf in the Case T-1/89 Rhˆone-Poulenc SA v. Commission [1991] ECR II-867, para. 3, who considered that in their ‘substance’, competition cases exhibit ‘the characteristics of a criminal law case’. Further on the argument in favour of criminalization of cartels under EU law, P. Whelan, ‘A Principled Argument for Personal Criminal Sanctions under EC Cartel Law’, Competition Law Review, 4 (2007), 7. Art. 23(5) of Council Regulation 1/2003 on the implementation of the rules of competition laid down by Articles 81 and 82 of the Treaty, OJ 2003 No. L1. Further, Article 6(3) of the Rome II Regulation, Council Regulation 864/2007, OJ 2007 No. L199, on the law applicable to non-contractual obligations. T. Ackermann, ‘Antitrust Damages in Actions under the Rome II Regulation’, in M. Bulterman et al. (eds.), Views of the European Law from the Mountain: Liber Amicorum Piet Jan Slot (Alphen aan den Rijn: Kluwer Law International, 2009), 112. Joined Cases C-628/10 P and C-14/11 P, Alliance One International, Inc. and Standard Commercial Tobacco Co., Inc. v. European Commission and European Commission v. Alliance One International, Inc. and Others [2012] 5 CMLR 14, above n. 73, paras. 107–108. Further, ´ rad pro ochranu hospod´aˇrsk´e soutˇeˇze Case C-17/10, Toshiba Corporation and others v. Uˇ [2012] ECR NYP, paras. 93–94 (ne bis in idem); Case T-9/04, AC Treuhand v. Commission [2008] ECR I-1501 (Art. 6(3)(a) ECHR), Case T-279/02, Degussa v. Commission [2006] ECR II-897; Case C-266/06, Evonik Degussa v. Commission [2008] ECR I-00081 (affirmed, ECJ – principle of legality, Art. 7 ECHR). A. Meij, ‘Scope of Judicial Review and Sanctions in Competition Cases’, in P. Jan Slot et al. (eds.), Views of European Law from the Mountain: Liber Amicorum Piet Jan Slot (Alphen aan den Rijn: Kluwer Law International), 179–185. However, for certain authors, this does not mean that competition law and criminal law are equated; J.A.E. Vervaele, ‘The Transnational Ne Bis In Idem Principle in the EU: Mutual Recognition and Equivalent Protection of Human Rights’, Utrecht Law Review, 1 (2005), 100, 106. D.I. Baker, ‘The Use of Criminal Law Remedies to Deter and Punish Cartels and Bid Rigging’, George Washington Law Review, 69 (2001), 693, 705; Wils, ‘Is Criminalisation of EU Competition Law the Answer?’, above n. 72, 287–8; Sufrin, ‘Competition Law in a Globalised Marketplace’, above n. 13, 123.

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place in a few States and uniformity is still an issue, it would seem that there is significant support for the view that the most serious forms of competition law violations constitute crimes across national jurisdictions, in spite of the lack of a common understanding among States on the nature of the precise criminal ‘harm’ involved. Having addressed this issue, it is now time to turn to the application of the effects doctrine in antitrust criminal law.

6.3.1.2 The Nippon Case The first case where the effects doctrine was used in an antitrust prosecution was the Nippon Case.77 The accused were Japanese companies, suspected of concluding an agreement in Japan to fix prices for the sale of thermal fax paper to North America. As a result, they were prosecuted before US courts for violating the criminal law provisions of the Sherman Antitrust Act. The Court of Appeals, using national rules of construction, explained that criminal prosecutions through the effects doctrine are permissible, since ‘courts should interpret the same language in the same section of the same statute uniformly, regardless of whether the impetus for interpretation is criminal or civil’.78 Although this decision was premised mostly on national law,79 among its many observations a few seem important for present purposes. First, the Court of Appeals discussed the lack of precedent on the application of the effects doctrine in criminal antitrust cases. It stated that ‘there is a first time for everything’80 and made reference to objective territorial jurisdiction as stipulated in Strassheim v. Daily.81 The Court therefore reasoned that ‘[i]t is not much of a stretch to apply this same principle internationally, especially in a shrinking world.’82 Secondly, the Court of Appeals also dismissed objections on the grounds that in the case of ambiguity, a criminal statute should be interpreted in favour of the defendant. In that Court’s view, this rule was ‘inapposite’, since the Supreme Court had already explained the meaning of this provision of the Sherman Act in a civil context and therefore the provision was not ‘ambiguous’.83 77

78 80 82

United States v. Nippon Paper Industries Co. Ltd, 109 F.3d 1 (1997), above n. 13. The defendants’ petition for a writ of certiorari to the Supreme Court was denied on 12 January 1998. As a result, the appellate ruling on the point became final. R.M. Reynolds et al., ‘The Extraterritorial Application of the US Antitrust Laws to Criminal Conspiracies’, European Comparative Law Review, 19 (1998), 151, 155. 79 United States v. Nippon Paper Industries Co. Ltd, above n. 13, 4. Ibid., 4–6. 81 Ibid., 6. Strassheim v. Daily, 221 US 280 at 285 (1911) (per Holmes J.). 83 United States v. Nippon Paper Industries Co. Ltd, above n. 13, 6. Ibid., 7–8.

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Judge Lynch in his concurring opinion addressed the matter from the perspective of international law.84 In particular, the judge considered that for the majority’s decision to comply with international law, the conditions set out in s. 415(2) of the Third Restatement on Foreign Relations Law should be satisfied. In his opinion, this was clearly the case; the principal purpose of the agreement was to raise prices in the United States and the effect on US commerce of the price increases alleged was not insignificant in the relevant market.85 Finally, the judge applied the Restatement s. 403 reasonableness analysis and found that the exercise of criminal jurisdiction by the United States was ‘reasonable’ in the circumstances and thus lawful under international law; the United States had a stronger incentive to prosecute than Japan and the effects felt in the United States were foreseeable and direct.86 The Nippon decision was critically reviewed. It was accused of taking ‘for granted that extraterritorial conduct that substantially effects the United States can be prosecuted in this country’, in spite of Japan’s protests.87 The decision was said to effectively vest in US Courts authority similar to that of the ICTY. The reason was that the transposition of Hartford Fire’s ‘foreign compulsion’ comity analysis to criminal law effectively allowed the unilateral prosecution of Japanese nationals without due consideration of Japanese interests or consent.88 Expressions such as ‘the lease is cut, and the dog is loose’ were used to describe its effect.89 It was considered as a precedent-setting ruling, which other states could likely use against individuals and businesses in the United States.90 Others have criticized it as a politically motivated decision.91 As a matter of 84 86

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89 90 91

85 Ibid., 9–13. Ibid., 12. Ibid., Concurring Opinion of Judge Lynch, at 12–13. For the history, the case was remanded to the District Court and dismissed on the merits for lack of evidence during the critical period. United States v. Nippon Paper Industries Co. Ltd, 62 F. Suppl.2d 173 (D. Mass. 1999). E.S. Podgor, ‘“Defensive Territoriality”: A New Paradigm for the Prosecution of Extraterritorial Business Crimes’, Georgia Journal of International and Comparative Law, 31 (2002), 1, 22; R. Parham, ‘European Companies Threatened by US Antitrust Law’, European Lawyer (2001), 10–11. M. Bishop, ‘United States v. Nippon Paper Industries Co: Criminal Application of the Sherman Act Abroad’, George Washington Journal of International Law and Economics, 32 (1999), 290. J. Gibeaut, ‘Sherman Act Goes Abroad: Decision OKs International Antitrust Prosecution’, American Bar Association Journal, 83 (1997), 43. Podgor, ‘“Defensive Territoriality”’, above n. 87, 23. L.R. Lamendola, ‘The Continuing Transformation of International Antitrust Law and Policy: Criminal Extraterritorial Application of the Sherman Act in United States v. Nippon Industries’, Suffolk Transnational Law Review, 22 (1999), 707–708.

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principle, it was considered ‘inconsistent for the United States to visit criminal penalties on firms and individuals of other nations for engaging in conduct (export cartels) that US law expressly permits and to which federal agencies are required by law to be party’.92 For all its alleged shortcomings, however, Nippon was widely considered as an unsurprising development, given the internationalization of business and the development of US antitrust law.93 The US Supreme Court, for its part, rejected both defendants’ requests for a certiorari and subsequent request for rehearing,94 which are said to have bolstered the legitimacy of the decision.95 It has been followed by other prosecutions in the United States96 and affirmed in the TFT–LCD cartel prosecutions of foreign nationals by US courts.97

6.3.1.3 Conclusion Notwithstanding its primarily US origins, State practice indicates that criminal antitrust law is becoming an international reality. There is increasing international agreement on the criminal nature of antitrust violations. This is probably underscored by a move away from the paradigm that export cartels, in particular, ensure one State’s producer welfare at the expense of another State’s consumer welfare.98 It is true that ideas for the creation of an ‘International Court of Criminal Cartel Justice’, where members of international cartels will be treated as international 92

93

94 95 96 97

98

D.D. Ellis, ‘Projecting the Long Arm of the Law: Extraterritorial Criminal Enforcement of US Antitrust Laws in the Global Economy’, Washington University Global Studies Law Review, 1 (2003), 477, 497. Bishop, ‘United States v. Nippon’, above n. 88, 271, 272; R.M. Reynolds et al., ‘The Extraterritorial Application of US Antitrust Laws to Criminal Conspiracies’, European Competition Law Review, 19(3) (1998), 151, 151–152; K.J. Arquit and R. Wolfrum, ‘Federal Appeals Court Rules That US Criminal Antitrust Law Applies to Extraterritorial Conduct’, International Business Law Journal, 6 (1997), 703, 709; Lamendola, ‘The Continuing Transformation’, above n. 91, 663, 666. United States v. Nippon Paper Industries Co. Ltd et al., 118 S.Ct. 685 (1998), Certiorari Denied. In the same case, Rehearing Denied, 118 S.Ct. 1116 (1998). Lamendola, ‘The Continuing Transformation’, above n. 91, 706. Podgor, ‘“Defensive Territoriality”’, above n. 87, 22, with references. United States v. Hsuan Bin Chen et al., F. Suppl.2d, 2011 WL 332713 (ND Cal. 2011), 4; United States v. AU Optronics Corporation et al. (In re TFT–LCD (Flat Panel) Antitrust Litigation), F. Suppl.2d, 2011 WL 1464858 (ND Cal. 2011), 3–4. On the terms of imprisonment and fines to the participants in the cartel, O’ Kane et al., The Law of Criminal Cartels, above n. 37, 292–293. Ezrachi and Kindl, ‘Cartels as Criminal’, above n. 70, 427.

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criminals, seem far from fruition.99 However, it is also true that the world appears to be moving from the age of ‘three blocking statutes for every cooperation agreement’,100 to an era of full, formal and informal cooperation among criminal anti-trust enforcers.101 This ‘burgeoning criminalization’ of cartel conduct internationally is also responsible for the emergence of extradition practice for cartel offences.102 It therefore becomes evident that there is certain support for the argument of the criminal law application of the effects doctrine on jurisdiction. That said, today it is authoritatively stated that ‘[t]he anti-cartel laws of most countries have jurisdiction to prosecute foreign defendants, usually when it can be demonstrated that cartel activity taking place in one jurisdiction has had an effect on the market of another’.103 This becomes clearer when one looks behind the titles (civil, administrative) in order to ascertain the precise nature of the sanctions and laws involved.104 Moreover, the need to classify becomes redundant if one adheres to the position that international law on jurisdiction is uniform, irrespective of the nature of manifestation of public power,105 a position somewhat controversial.106 99 100 101 102

103 104

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106

C. Beaton-Wells and A. Ezrachi, ‘Criminalizing Cartels: Why Critical Studies?’, in BeatonWells and Ezrachi, Criminalising Cartels, above n. 37, 24. J. Davidow, ‘Extraterritorial Antitrust and the Concept of Comity’, Journal of World Trade Law, 15 (1981), 500, 502. D.A. Sasse, ‘Private Damages Actions and the Limitations of US Class Actions for a Global Solution’, Global Competition Litigation Review, 1 (2008), 106, 107. M. O’Kane, ‘International Cartels, Concurrent Criminal Prosecutions and Extradition: Law, Practice and Policy’, in Beaton-Wells and Ezrachi, Criminalising Cartels, above n. 37, 417–418. O’ Kane, The Law of Criminal Cartels, above n. 37, 288. The particular difficulty in the distinction has been duly discussed in the early literature on the matter by G. van Hecke, ‘Le Droit Antitrust: Aspects Comparatifs et Internationaux’, Recueil des Cours de l’Acad´emie de Droit International, 106 (1962-II), 253, 302; E. Nerep, Extraterritorial Control of Competition in International Law with Special Regard to US Antitrust Law (Stockholm: Norstedt, 1983), 465; J.G. Castel, ‘The Effects of Antitrust Laws’, Recueil des Cours de l’Acad´emie de Droit International, 179 (1983-I), 9, 13, 25; E. Friedel-Souchu and H. Gaudemet-Tallon, Extraterritorialit´e de Droit de la ´ Concurrence aux Etats-Unis et dans la Communaut´e Europ´eenne, Biblioth`eque de Droit Internationale, t. 109 (Paris: LGDJ, 1994), 7. F.A. Mann, ‘The Doctrine of Jurisdiction in International Law’, Recueil des Cours de l’Acad´emie de Droit Internationale, 111 (1964-I), 1, 44–46, 73–76. Further, D.W. Bowett, ‘Jurisdiction: Changing Patterns of Authority over Activities and Resources’, British Yearbook of International Law, 53 (1982), 1, 1–4. Prominently, Akehurst, ‘Jurisdiction in International Law’, above n. 22, 170, 176–177; Al-Adsani v. United Kingdom (App. No. 35763/97) ECHR 21 November 2001, para. 60–66 and Joint Dissenting Opinion of Judges Rozakis and Caflisch, Joined by Judges Wildhaber, Costa, Cabral Barreto and Vajic, para. 4.

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Be that as it may, State practice seems to have accepted such an assertion, particularly because ‘many of the underlying issues are the same in each case’, irrespective of the civil or criminal nature of the proceedings.107 In any event, the emphasis of diplomatic protests has been mostly on treble damages rather than against such assertions of criminal jurisdiction, on the basis of State sovereignty, as one would expect perhaps on the same path as the ‘blocking statutes’ of the 1980s.108 Finally, it would be useful to adduce as further evidence criminal decisions on ‘classic’ crimes, where this doctrine was employed. This seems to have been the solution opted for by the Supreme Court of Zimbabwe in the Mharapara Case.109 In that case, the effects, other than the constituent elements of the crime of theft, were the critical factor for the exercise of jurisdiction by Zimbabwe over the act that took place in its Embassy in Belgium by one of its nationals.110 There seems to exist some support in the literature for the application of this doctrine in cases of terrorism,111 as well as pollution and pirate broadcasting under the law of the sea.112 Accordingly, there is State practice and academic commentary to support the view that, for ‘the most egregious violations of competition law’,113 there is certain acceptance of the effects doctrine as an interpretation of territorial criminal jurisdiction. 107

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109 110 111

112 113

Kruman et al. v. Christie’s International et al., 284 F.3d 384, 390 (2nd Cir., 2002). J. Crawford, Brownlie’s Principles of Public International Law (8th edn, Oxford University Press, 2012), 471–472, noted that ‘[i]n particular, antitrust legislation (the source of many of the difficulties in practice) involves a process which, though formally “civil”, is in substance coercive and penal . . . ’. From earlier literature, van Hecke, ‘Le Droit Antitrust’, above n. 104, 302; see also, Castel, ‘The Effects of Antitrust Laws’ above n. 104, 13, 25; Friedel-Souchu and Gaudemet-Tallon, Extraterritorialit´e, above n. 104, 7–8; Nerep, Extraterritorial Control of Competition, above n. 104, 465. Banks, ‘International Activities’, above n. 40, 75. In detail, Chapter 2, and further J.P. Griffin, ‘Foreign Governmental Reactions to US Assertions of Extraterritorial Jurisdiction’, European Competition Law Review, 19 (1998), 64. S. v. Mharapara (1985) (2) ZLR 211 (SC), 84 ILR 1, 17 Supreme Court of Zimbabwe, Judgment of 17 October 1985. Ibid., 17. Kolb, ‘The Exercise of Criminal Jurisdiction over International Terrorists’, above n. 24, 244–245. But it would also appear that his argument seems to draw heavily on the concept of ‘abstract endangerment offences’, where emphasis is placed also on the ‘effects doctrine’ as constructive effects or effect through risk. In detail, above Chapter 2. For attempts and conspiracy to commit drug trafficking and aircraft terrorism, see above Chapter 2, Somchai Liangsiripraesert v. U.S. (1990) 29 ILM 1390 and United States v. Davis, 905 F.2d 245 at 248 (9th Cir., 1990). Oxman, ‘Jurisdiction of States’, above n. 25, 58. OECD, Hard Core Cartels: Third Report on the Implementation of the 1998 Council Recommendation (Paris: OECD 2005), 7–8, available at: www.oecd.org/competition/ cartels/35863307.pdf (last accessed 19 February 2013).

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6.3.2 Territorial jurisdiction Another disputed point may be the classification of the effects doctrine as a rule of territorial jurisdiction. One could argue that, while its origin does indicate emphasis on intraterritorial effects,114 its subsequent application gives credence to claims of ‘extra-territorial’ application of national law. It could be argued that states, through the excuse of potential future adverse effects in their markets, have in fact employed this device as a siege ram, in order to open up foreign markets for their exporters.115 However, even in cases where the effects are said to occur intra-territorially, still the main conduct is almost entirely performed abroad.116 Accordingly, the effects doctrine should be considered as an ‘extraterritorial’ basis of jurisdiction,117 best explained possibly through other jurisdictional rules (protective rule). As such, it should be treated as doctrinally inappropriate for the Court under Article 12(2)(a). It is true that there is significant terminological confusion on the matter.118 The terms ‘extraterritoriality’ and ‘extraterritorial jurisdiction’ have generally suffered significant abuse. They have been used extensively in the literature not (only) to explain the exercise of (State) jurisdiction over cases with no link with the territorial State, but also to cover cases of jurisdictional assertions on the basis of some territorial link, usually concurrently with other States.119 In this context, the best view is that ‘the term “extraterritorial jurisdiction” is only accurate if it refers to assertions of jurisdiction over persons, property, or activities which have no 114 115

116 117

118 119

C. Ryngaert, Jurisdiction over Antitrust Violations in International Law (Antwerp: Intersentia, 2008), 11–13, 15–16. Sufrin, ‘Competition Law in a Globalised Marketplace’, above n. 13, 106, 109. W.T. Miller and D.I. Baker, ‘Globalisation and Antitrust Litigation: Are the US Jurisdictional Boundaries Sensible, Mercantilist or Just Random?’ in Slot and Bulterman (eds.), Globalisation and Jurisdiction, above n. 14, 134–138; contra, Ryngaert, Jurisdiction over Antitrust Violations, above n. 114, 143–6. This is particularly evident in merger cases; see indicatively Chapter 2, Case T-102/96, Gencor Ltd v. Commission of the European Communities [1999] ECR II-753. This approach, which seems to be adopted implicitly to a certain extent by s. 402(c), (f) and comments thereto of the Restatement (Third) of the Foreign Relations Law of the United States (1987), 239–240, is being critically reviewed and effectively rebutted by Ryngaert, Jurisdiction over Antitrust Violations, above n. 114, 21–22; I. A. Cameron, The Protective Principle of International Criminal Jurisdiction (Aldershot: Dartmouth, 1994), 62–67. F. Rigaux, ‘Expos´e Pr´eliminaire’, Annuaire de l’Institut de Droit International, 68-I (1999), 372–373. C. Ryngaert, Jurisdiction in International Law, Oxford Monographs in International Law (Oxford University Press, 2008), 7.

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territorial nexus whatsoever with the regulating State, i.e. assertions based on the personality, protective, or universality principles of jurisdiction’.120 In fact, an important part of the application of this doctrine concerns a less-debated aspect, namely imports to a State and effects within a State.121 The ALCOA ruling started from that point, underlying the meaning of intended effects within territory.122 Even Robert Jennings – one of the most vociferous critics of this doctrine – admitted that the problem with some of the most contentious cases of effects jurisdiction was not whether there were territorial effects justifying the exercise of jurisdiction, but rather whether the reach of the remedies ordered by US Courts at the time and their enforcement were appropriate.123 Throughout the application of this doctrine by mostly US Courts, the territorial element is constantly present, to the extent that the exercise of jurisdiction depends on the presence of effects in State territory, usually in the form of economic repercussions. The position was probably best articulated in the Laker Airways Case, where the Court of Appeals emphasized that ‘[t]he territorial effects doctrine is not an extraterritorial assertion of jurisdiction. Jurisdiction exists only when significant effects were intended within the prescribing territory [emphasis in the original]’.124 Similarly, in a classical criminal law context, in the Mharapara Case, the Supreme Court of Zimbabwe applied this doctrine as an aspect of objective territorial jurisdiction, due to the impossibility of asserting nationality jurisdiction under national law.125 As regards terrorism and effects jurisdiction, the emphasis has again been placed on the effects that a single terrorist attack may have in other States, entitled to exercise jurisdiction on this basis.126 In conclusion, as Cameron has explained, ‘the effects principle is either a principle of extraterritorial jurisdiction, or, like the doctrine of ubiquity, it is simply a means of localising crime. If it is the former, then it is probable that, insofar as it goes beyond the localisation of attempts to commit

120 121

122 123 124 125 126

Ibid., 7. Sufrin, ‘Competition Law in a Globalised Marketplace’, above n. 13, 106, 109; Trebilock and Iacobucci, ‘National Treatment and Extraterritoriality’, above n. 14, 158–9; Wolswijk, ‘Locus Delicti’, above n. 3, 366. United States v. Aluminium Company of America (ALCOA), 148 F.2d 416, 443 (2nd Cir., 1945); Ryngaert, Jurisdiction over Antitrust Violations, above n. 114, 14–15. Jennings, ‘The Proper Reach of Territorial Jurisdiction’, above n. 4, 40. Laker Airways Ltd v. Sabena, 731 F.2d 909, 923 (DC Cir., 1984). S. v. Mharapara (1985) 84 ILR 1, 17, above n. 109; Chapter 2. Kolb, ‘The Exercise of Criminal Jurisdiction over International Terrorists’, above n. 24.

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offences in the territory of the state, then there is little support for it in the criminal law of other States. If it is the latter, then it is simply a form of the territorial principle.’127 It is through the latter alternative perspective – the impact within a State Party territory – that the possibility of extending the Court’s jurisdiction under Article 12(2)(a) is examined.

6.3.3 Over-regulation and jurisdictional conflicts Another important consequence that the endorsement of the effects doctrine could have concerns the argument of ‘over-regulation’. From this perspective, it might be said that the Court is not only extending its jurisdictional reach beyond the letter of its mandate, but it is further sowing the seeds of jurisdictional discord between itself and States, Parties and not Parties alike. In this context, it can be argued that, international criminal law – and the system of the Rome Statute in particular – does not have sufficient rules in place to resolve jurisdictional conflicts due to multiple jurisdictional assertions.128 Notwithstanding solutions proposed in the literature129 or adopted in certain instruments,130 the Lockerbie conundrum is indicative of the situation as it stands at present under general international law.131 Viewed from this angle, and conscious of the impact that its rulings will have on national criminal laws, it could be argued 127 128

129 130

131

Cameron, The Protective Principle, above n. 117, 64. F. Berman, ‘Jurisdiction: The State’, in Capps et al. (eds.), Asserting Jurisdiction, above n. 13, 13. Further, F. Jessberger, ‘International v. National Prosecution of International Crimes’, in A. Cassese (ed.), The Oxford Companion to International Criminal Justice (Oxford University Press, 2009), 211–13; Wolswijk, ‘Locus Delicti’, above n. 3, 381–382. For a socio-legal over-regulation analysis from the perspective of competition law, M.D. Taylor, International Competition Law: A New Dimension for the WTO? (Cambridge University Press, 2006), 46–56. Ryngaert, Jurisdiction in International Law, above n. 119, 211, 237 (qualified subsidiarity); Akehurst, ‘Jurisdiction in International Law’, above n. 22, 155–156 (‘primary effects’). ‘Guidance for Handling Criminal Cases with Concurrent Jurisdiction between the United Kingdom and the United States of America’ (25 January 2007), British Yearbook of International Law, 68 (2008), 789, 789–792; Council Framework Decision 2009/948/JHA of 30 November 2009 on Prevention and Settlement of Conflicts of Exercise of Jurisdiction in Criminal Proceedings, OJ (L 328), 15 December 2009, 42–47. Where the jurisdictional overlap between Scots law (territorial), English and US law (passive personality), with Libyan law (active personality) resulted in the adjudication of the case by an ad hoc Scottish Court in the Netherlands. In detail, A. Aust, ‘Lockerbie, the Other Case’, International and Comparative Law Quarterly, 49 (2000), 278, 279. National criminal justice systems are not immune to jurisdictional loopholes, either; indicatively, E.M. Morgan, ‘Retributory Theatre’, American University International Law Review, 3 (1988), 1, 29.

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that the Court should avoid setting an example that would only exacerbate the jurisdictional question as it stands at present. On the contrary, it should strive to endorse solutions more oriented towards the avoidance of jurisdictional conflicts by exhibiting moderation and restraint.132 This would arguably be also sound policy advice, considering that the Court is a creature of State consent. These are valid concerns. However, they should not be over-stated. Jurisdictional conflicts are virtually unavoidable in today’s globalized world and the system of the Rome Statute. Such conflicts cannot be excluded even with the most conservative reading of the Statute in cases of, e.g., territorial jurisdiction over third-party nationals, or nationality jurisdiction for crimes committed in State not Party territory – let alone universal jurisdiction under a Security Council referral. The drafters anticipated the emergence of such conflicts and provided mechanisms for their resolution within the system of the Statute, most prominently complementarity.133 Article 19(2)(c) allows States not Parties to raise challenges to both jurisdiction and admissibility.134 If a State feels that the Court is over-reaching its jurisdiction, it is perfectly free to use these mechanisms to vindicate its rights. However, it is precisely in order to pre-empt such objections that the application of the effects doctrine should operate under certain conditions. On the national level, such conditions are the qualifications relating to causality and magnitude of the effects, as well as an overarching reasonableness analysis. They could apply equally within the ICC context.135 In closing, the rationale underlying the advocacy in favour of the effects doctrine is to mend the jurisdictional loopholes and bolster the Statute’s effectiveness in terms of both deterrence and punishment. This end may require action by the Court itself, but may be equally effected also by national courts. In this spirit, if the Court takes the initiative by using effects jurisdiction, its action may potentially motivate national courts to seriously examine the situation, without requiring any further action on its part. As such, effects jurisdiction could prove to be a useful instrument for the mobilization of national judiciaries.136 132

133 134 136

This admonition was addressed to national judges by Sir G. Fitzmaurice, Barcelona Traction Case, Separate Opinion (Belgium v. Spain) (Judgment) [1970] ICJ Rep. 3, 105, para. 70. Kenya Admissibility Appeal Decision, above n. 21, paras. 100–101. 135 See Chapter 8 in detail. See below Section 6.3.6. This argument is inspired by Ryngaert, Jurisdiction over Antitrust Violations, above n. 114, 19–23 on competition law. Also, M. Wagner, ‘The ICC and Its Jurisdiction: Myths,

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Ultimately, however, one thing is clear; an extension of ICC jurisdiction along these lines will increase the risk of jurisdictional conflicts with States. It falls upon the Court to decide whether this risk and its possible realization is a worthy price to pay for the fulfilment of its mandate to end impunity. In doing so, the Court will need to further address issues of legitimacy – usually masked as State sovereignty objections – and problems of State co-operation.

6.3.4 Pacta tertiis: violation of sovereignty of States not Parties It could be further suggested that States do not recognize the application of the effects doctrine for their own criminal laws and correspondingly do not recognize the existence of such a rule in customary law. Thus, any potential reference by the Court to this doctrine under Article 12(2)(a) would be seen as unsupported by State practice and accordingly give rise to claims of violations of State sovereignty by the States involved (arguably States not Parties), not least on the basis of the pacta tertiis rule. This development would not contribute to the smooth operation of the Court, as it would force it to enter into the discussion – and defend its position – against allegations of violations of State sovereignty.137 The State practice accepting the use of effects jurisdiction has been explored in detail above, and does not need to be repeated here.138 It is true that some States may not subscribe to this approach to territorial jurisdiction. However, it is also true that this fact per se does not entail that

137

138

Misperceptions and Realities’, Max Planck Yearbook of United Nations Law, 7 (2003), 409, 485. For the discussion on territorial jurisdiction, delegation of authority and the pacta tertiis rule in the context of the ICC, i.e. the rule that a treaty cannot create rights and obligations for third States without their consent, M. Morris, ‘High Crimes and Misconceptions: The ICC and Non-Party States’, Law and Contemporary Problems, 64 (2001), 13, 26; M.P. Scharf, ‘The United States and the International Criminal Court: The ICC’s Jurisdiction over the Nationals of Non-Party States: A Critique of the US Position’, Law and Contemporary Problems, 64 (2001), 70–71; F. M´egret, ‘Epilogue to an Endless Debate: The International Criminal Court’s Third Party Jurisdiction and the Looming Revolution of International Law’, European Journal of International Law, 12 (2001), 247; D. Akande, ‘The Jurisdiction of the International Criminal Court over Nationals of NonParties: Legal Basis and Limits’, Journal of International Criminal Justice, 1 (2003), 618. Further Bantekas, ‘Head of State Immunity’, above n. 1, 36, addressing the matter from the point of view of non-self contained system theories; similarly, G.D. Danilenko, ‘ICC Statute and Third States’ in Cassese et al. (eds.), The Rome Statute of the International Criminal Court, above n. 1, 1871. See above Section 2.4.2.3.

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the Court is prevented from using the effects doctrine as an interpretation to localize criminal activity within State Party territory, any more than it does for, e.g., objective territoriality. From this perspective, effects jurisdiction is simply one interpretation of Article 12(2)(a), ‘simply a form of the territorial principle’.139 As far as the pacta tertiis rule is concerned, this argument has been made and extensively refuted in the literature with regard to ICC territorial jurisdiction over third-State nationals.140 Summarizing the different views, it seems that, specific classes of individuals notwithstanding (e.g. military forces under a Status of Forces Agreement (SOFA)), to the extent that a State does not need the permission of a foreigner’s state of nationality to prosecute her or him for crimes committed on its territory, issues of pacta tertiis do not arise simply because of the international character of the Court.141

6.3.5 Practical aspects: collection of evidence Finally, another argument against the application of the effects doctrine would be the acute problem of effectiveness, in terms of ensuring the performance of criminal justice. In short, even if the Court were to exercise such jurisdiction, it might in the end have to abandon the case for lack of evidence or an accused in custody in the absence of State cooperation.142 In these circumstances, it is very doubtful whether the Prosecutor would be willing to sacrifice the limited resources available under the watchful eye of the Assembly of States Parties (ASP),143 for such a difficult and doubtful investigation. After all, the Prosecutor has publicly announced that limited resources oblige the Office to prioritize, taking into account also ‘the feasibility of conducting an effective investigation in a particular territory’.144 Obviously these concerns are real and cannot be disregarded. From a legal perspective, however, the Court’s jurisdiction, on the one hand, 139 141 142

143 144

140 Cameron, The Protective Principle, above n. 117, 64. Ibid., n. 899. Cryer et al., An Introduction to International Criminal Law, above n. 19, 172–173. Particularly since the Statute does not allow for trial in absentia. H. Friman, ‘Rights of Persons Suspected or Accused of a Crime’, in R.S. Lee (ed.), The International Criminal Court: The Making of the Rome Statute. Issues, Negotiations, Results (The Hague: Kluwer Law International, 1999), 255–261. On ASP monitoring of the Court’s budgets; Bekou and Cryer, ‘The International Criminal Court’, above n. 19, 57, n. 51. ICC Office of the Prosecutor, Paper on Some Policy Issues Before the Office of the Prosecutor: Referrals and Communications, Annex (April 2004) available at: www.icc-cpi.int/NR/ rdonlyres/278614ED-A8CA-4835-B91D-DB7FA7639E02/143706/policy_annex_final_ 210404.pdf (last accessed 19 February 2013).

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and the State’s duty to cooperate under the Statute, on the other, are two entirely different sets of obligations and legal regimes. The first is regulated by Part II and the second by Part IX of the Statute.145 Evidently, by opening up an investigation the Court would not create any sort of legal obligation to cooperate for States not Parties absent a Security Council referral. On the contrary, the duty to cooperate would apply only for States Parties, in accordance with the Statute. Such cooperation could include the retrieval of testimonies and forensic evidence from residents of refugee camps, or the performance of environmental impact assessments on polluted international watercourses. This course of action might provide the necessary groundwork and impetus that would encourage national courts to pursue further investigations, or at the very least deter the commission of such crimes. In any event, such practical difficulties emerge in any case, where jurisdiction is exercised on any basis other than territoriality. In the case of the exercise of nationality jurisdiction, for example, a national of a State Party may be prosecuted for a crime committed in the territory of a State not Party. Equally, in this contingency, absent the willingness of the territorial State to cooperate, the Court may have custody of the accused, but nothing – or little – else, by way of, for example, on-site forensic evidence. Is it to be presumed that in such situations as well the Court’s organs would shy away from their responsibilities under the Statute? There is an obvious question of principle in these situations, one that only the Court can authoritatively answer. The position here is that a jurisdictional decision should be made taking into account present and future victims of large-scale violence. This position is believed to be consistent with Article 21(3) ICC Statute and the right of victims of human rights abuses to an effective investigation and judicial remedy of their grievances. In such conditions, as Cameron explained, ‘[a]lthough it all comes down to evidence in the end, jurisdictional claims should be made on the basis of rational choices as to the crimes which we want to prosecute, not on the predictions – guesswork – on how often sufficient evidence will be forthcoming to obtain convictions’; in these circumstances, ‘the argument for not letting the evidential tail wag the jurisdictional dog is compelling’.146 145

146

From the ILC discussions that led to the adoption of the 1994 Statute, see ‘Summary Records of the 2333rd Meeting’, Yearbook of the International Law Commission, 1 (1994), 36, para. 46 (per Chusei Yamada). I. Cameron, ‘Jurisdiction and Admissibility Issues under the ICC Statute’, in D. McGoldrick et al. (eds.), The Permanent International Criminal Court: Legal and Policy Issues. Studies in International Law (Oxford: Hart, 2004), vol. V, 65, 81.

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6.3.6 Delimiting effects: qualifications The effects doctrine allows State jurisdiction by virtue of the manifestation of general effects that the criminal conduct is said to bring about on State territory, other than effects that qualify as a constituent part of the offence. The classification of the effects is therefore crucial as a safeguard against jurisdictional abuse. Currently, there is no list available of uniformly agreed classifications across the world. State practice indicates that classifications such as ‘substantial and intended’, or ‘substantial’, ‘direct’ and ‘reasonably foreseeable’ are preferred. In US antitrust law, the application of these criteria is not uniform and has caused confusion over the precise reach of such laws.147 Nonetheless, these qualifications are said to establish ‘a standard with teeth’ that led to the dismissal of many cases with foreign elements.148 The very first decision establishing the effects doctrine in anti-trust law explained that the US Sherman Act proscribed extra-territorial acts that were ‘intended to affect imports and did affect them’.149 In 1982, the United States adopted the Foreign Trade Antitrust Improvements Act.150 The purpose of the Act was to amend US antitrust law, so as to facilitate the formation of joint ventures by US exporters, as well as to bar claims brought before US Courts that involved wholly foreign conduct and effects.151 However, the FTAIA provided exceptionally that the Sherman Act continued to apply to conduct involving trade or commerce with foreign nations, when such conduct has a ‘direct, substantial and reasonably foreseeable effect’ on US imports or exports and the effect gives rise to a claim under the US Sherman Act.152 Strangely enough, the two tests continued to exist alongside each other in general US antitrust law. In 1993, the United States Supreme Court 147

148 149 150 151 152

J.P. Bauer, ‘The Foreign Trade Antitrust Improvements Act: Do We Really Want to Return to American Banana?’, Maine Law Review, 65 (2012), 3, 4–6 et seq.; D.D. Ellis, ‘Projecting the Long Arm of the Law: Extraterritorial Criminal Enforcement of US Antitrust Laws in the Global Economy’, Washington University Global Studies Law Review, 1 (2003), 477, 502–503. Minn-Chem., Inc. et al. v. Agrium, Inc. et al., 683 F.3d 845 (7th Cir., 2012), 858, with references. United States. v. Aluminium Company of America (ALCOA) above n. 122, 444. Pub. L. No. 97–290, 96 Stat. 1246, codified at 15 USC s. 6(a). F. Hoffman-LaRoche v. Empargan SA, 542 US 155 (2004), 161; Bauer, ‘The Foreign Trade Antitrust Improvements Act’, above n. 147, 5–6. 15 USC s. 6(a).

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refused to apply the FTAIA classifications in the London re-insurers Case and reverted to the ALCOA ‘intended and substantial effects’ test.153 Importantly, the Supreme Court left open the question ‘whether the Act’s “direct, substantial and reasonably foreseeable effects” standard amends existing law or merely codifies it’.154 In any event, the Supreme Court considered without explanation that even if the FTAIA were applicable in that case, its requirements were met.155 On the other hand, the US Supreme Court in the Vitamin Cartel Case referred to the FTAIA criteria and explained that effects must also be ‘of a kind that antitrust law considers harmful.’156 In the LSL Biotechnologies litigation, the Court of Appeals took the view that the two tests are different and decided to follow the FTAIA test, requiring that the effects in question must qualify as ‘direct’, ‘substantial’ and ‘reasonably foreseeable’ for a Sherman Act action.157 This opinion was forcefully contested by the dissenting judge158 and authors.159 Finally, some Courts follow a combination of both Hartford Fire Insurance and the FTAIA tests.160 From the perspective of the criminal anti-trust law, US Courts seem to generally apply the ALCOA ‘intended and substantial effects’ standard. The Nippon Case followed Hartford Fire Insurance. It considered that the FTAIA was ‘inelegantly phrased’ and ruled that the criminal law reach of the Sherman Antitrust Act required intended and substantial effects within the United States.161 More recent antitrust prosecutions have cited Nippon with approval and follow the ‘intended and substantial effects’ test.162 153 154 156 157 158 159

160 161 162

Hartford Fire Insurance Co. v. California, 509 US 764, 796 (1993). 155 Ibid., 796, n. 23. Ibid. F. Hoffman-LaRoche v. Empargan SA, above n. 151, 161. United States v. LSL Biotechnologies, 379 F.3d 672 (9th Cir., 2004.), 678–679. Ibid., 678–679. Dissenting Opinion of Judge Aldisert, at 684–686. J.A. Dresnick et al., ‘The United States as Global Cop: Defining the “Substantial Effects” Test in US Antitrust Enforcement in the Americas and Abroad’, University of Miami Inter-American Law Review, 40 (2009), 453, 483–485. Minn-Chem. Inc. et al. v. Agrium, Inc. et al., above n. 148. United States v. Nippon Paper Industries Co. Ltd et al., 109 F.3d 1 (1st Cir., 1997), 4–5. United States v. Hsuan Bin Chen et al., F. Supp 2d, 2011 WL 332713 (ND Cal. 2011), 4–5; United States v. AU Optronics Corporation et al. (In re TFT-LCD (Flat Panel) Antitrust Litigation), F. Suppl.2d, 2011 WL 1464858, (ND Cal. 2011). This case led to the conviction of two Taiwanese executives, Hsuan Bin Chen and Hui Hsiung. The appeals are pending. The Government has asked for the imposition of ten years’ imprisonment for each accused. United States v. AU Optronics Corporation et al. (United States’ Sentencing Memorandum) Case No. CR-09–0110 SI, United States District Court Northern District of California San Francisco Division, 20 September 2012, 46–51. Further, United States

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The meaning of each of the qualifiers has been discussed in the relevant case-law. In Nippon, the concurring judge explained that substantial effects existed, as the indictment alleged that the defendant sold paper worth 6.1 million US dollars in the corresponding US market, which in that year had total sales of 100 million US dollars.163 These effects were ‘intended’, as the indictment alleged that the purpose of the price-fixing conspiracy was to raise prices in the US and Canadian markets.164 In the TFT–LCD litigation, the United States instituted criminal proceedings against a number of foreign executives and companies, alleging price-fixing in the thin-film transistor liquid crystal display panels market (TFT–LCD panels). The defendants filed requests for orders to dismiss the indictment. Both were rejected. The first request was rejected because the Court held that, for the charges at hand, ‘intent’, in ‘intended effects’, did not require knowledge of the probable consequences of the act and its anticompetitive effects.165 The Court, moreover, mentioned that the defendants confused intent for the purposes of establishing jurisdiction under the ‘intended effects’ test in Nippon, with intent for the purposes of prosecuting the offence.166 As regards the second motion to dismiss, the Court held that, even if the conduct of the defendants was construed as ‘wholly foreign’, it still satisfied the ‘substantial and intended effects’ test. The effects were substantial because the indictment ‘specifically alleges that the purported conspiracy “substantially affected interstate and foreign commerce”’.167 They were ‘intended’, because the indictment alleged a conspiracy to fix prices through continuing agreement, understanding and action between the defendants.168 The Court concluded that the factual allegations in the indictment were ‘sufficient to establish both an intended and a substantial effect on commerce in the United States’.169 The meaning of the ALCOA ‘intended and substantial effects’ test has been further clarified by general antitrust case-law in the light of the FTAIA language of ‘direct, substantial and reasonably foreseeable effects’. First, the meaning of ‘intent’ has been construed in the light of the notion of ‘reasonably foreseeable’ effects, because it is believed that the

163 164 167 168

v. Anderson, 326 F.3d 1319 (11th Cir., 2003), 1129–1130 (even if FTAIA applied, which it did not on the facts of the case, the defendant’s bid-rigging scheme intended to have, and actually did have, a substantial effect on domestic commerce). United States v. Nippon Paper Industries Co. Ltd, above n. 161, 12 (per Judge Lynch). 165 166 Ibid., 12. United States v. Hsuan Bin Chen et al., above n. 162, 3. Ibid., 3. United States v. AU Optronics Corporation et al. (In re TFT-LCD (Flat Panel), above n. 162, 3. 169 Ibid. Ibid.

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latter qualification was adopted by Congress in the FTAIA to substitute ‘intent’ in the ‘intended effects’ test.170 In this light, the ‘reasonable foreseeability’ criterion has been interpreted to impose an objective standard, according to which ‘the requisite “direct” and “substantial” effect must have been “foreseeable” to an objectively reasonable person’.171 Secondly, as regards the ‘substantial’ element of the effects, although no precise definition exists,172 it seems to be generally estimated on the basis of the alleged impact that a certain conduct would have on the corresponding protected market. Indicatively, the Supreme Court was satisfied in Hartford Fire Insurance that such effect was present, stating that ‘the London reinsurers engaged in unlawful conspiracies to affect the market for insurance in the United States and . . . their conduct in fact produced substantial effect’.173 Other Courts have found a ‘substantial effect’ to manifest when the allegations suggest price-fixing that affects a ‘large volume’ of US commerce,174 or when the defendants’ conduct led to a 600 per cent price increase during 2003–2008 in the international sale of a commodity and 85 per cent of that commodity in the US market was imported.175 The effects are not substantial, when the potential sales that the anti-competitive conduct allegedly affected would be in ‘tiny volumes’ in the absence of a strong relevant market for the product in the United States.176 The qualifier ‘direct’ indicates the causal link that needs to exist between the conduct in question and the anti-competitive effect. The degree of causality required varies. In Empargan, the US Supreme Court stated that when foreign plaintiffs bring an antitrust suit in US Courts alleging independent foreign and domestic anti-competitive effects, such claims cannot be entertained by US Courts, unless there is a causal connection 170

171 172 173 174

175 176

H.R. Rep. No. 97–686 (1982), reprinted in 1982 USCCAN 2487, 2494; H. Hovencamp, Federal Antitrust Policy: The Law of Competition and its Practice (2nd edn, St Paul, MN: West, 1999), 751–753; United States v. LSL Biotechnologies, 379 F.3d 672 (9th Cir., 2004), 690 (Dissenting Opinion of Judge Aldisert). Animal Science Products, Inc. v. China Minmetals Corp., 654 F.3d 462 (3rd Cir., 2011), 471. Dresnick et al., ‘The United States as Global Cop’, above n. 159, 456. Hartford Fire Insurance Co. v. California, 509 US 764 (1993), above n. 153, 796. Centerprise International Ltd v. Micron et al. (in re Dynamic Random Access Memory Antitrust Litigation), F.Suppl. 2d, 2006 WL 515629 (ND Cal. 2006), 3. The Court quoted only this part from the allegations and did not refer to the number of 2 billion US dollars of allegedly affected sales in the relevant market. Minn-Chem., Inc. et al. v. Agrium, Inc. et al., above n. 148, 858–859. United Phosphorus Ltd v. Angus Chemical Co., 131 F. Suppl. 2d 1003 (ND Ill. 2001), 1006.

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between the foreign and the domestic adverse effect.177 In LSL Biotechnologies, it was decided that the anti-trust effect was ‘direct’, when it constituted the ‘immediate consequence’ of the anticompetitive conduct taking place abroad.178 This interpretation was reversed in a recent judgment, which held that the effects are ‘direct’ when they are the ‘proximate result’ of the foreign conduct.179 The plaintiffs alleged in that case that by reducing supply, the foreign defendants established increased benchmark prices in the Chinese potash market. This in turn led to increased prices in the US market, since Chinese benchmark prices for potash are used generally. Thus the Court held that the increased prices in the US potash market were the ‘direct’ effect of the defendants’ output reduction agreement.180 In the European Union, the ECJ in Gencor explained that allowing a merger to go through would very likely lead to the emergence of effects in the common market for platinum and rhodium. The Court examined whether the proposed merger would cause ‘immediate’, ‘substantial’ and ‘foreseeable’ effects in the European Union.181 The Court was satisfied that the effects of the proposed merger would be ‘immediate’, as its impact would be to alter the structure of the relevant market and to create a duopoly.182 This would lead to conditions where abuses would be economically rational, in light of the fact that the concentration in question would lead to a lasting alteration of the relevant market.183 The effects of the proposed merger were held to be ‘substantial’ as well, because it would create a ‘lasting dominant duopoly’ in the world platinum and rhodium markets.184 For the purposes of jurisdiction, the Court took into account the level of sales in western Europe (20 per cent of world demand) and the EU market share of the proposed new entity. The Court also highlighted that the merger ‘potentially affected’ the prices of the only other competitor to the South African companies, which held a much higher combined market share in the relevant market in the European Union (65 per cent).185 Finally, the ECJ concluded on the basis of its previous observations that ‘it was in fact foreseeable that the effect of creating a dominant duopoly position in a world market 177 178 179 180 181 182

F. Hoffman-LaRoche v. Empargan SA, above n. 151, 161. United States v. LSL Biotechnologies, 379 F.3d 672 (9th Cir. 2004), 680. Minn-Chem., Inc. et al. v. Agrium Inc. et al., above n. 148, 857–858. Ibid., 859–860. Case T-102/96, Gencor Ltd v. Commission of the European Communities [1999] ECR II-753, para. 92. 183 184 185 Ibid., para. 94. Ibid. Ibid., para. 96. Ibid., para. 97.

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would also be to impede competition significantly in the Community, an integral part of that market’.186 In other cases concerning anti-competitive practices allegedly committed abroad, the ECJ has required that the application of EU law to such practices requires ‘substantial effects’ within the relevant EU market. An effect is ‘substantial’, when it is ‘appreciable and not negligible’.187 Finally, national Courts in other jurisdictions have used similar qualifiers along the same lines to determine the reach of the effects doctrine under national competition law. In the American Soda Ash Case, the South African Competition Appeals Court ruled that effects jurisdiction is allowed under international law.188 It further explained that under s. 3(1) of the 1998 South African Competition Act, such effects needed to be direct, foreseeable and substantial, but not necessarily harmful or ‘deleterious’.189 In closing, it is important to note that each system follows its own process of identification and application of the relevant classifications of effects. The minimum common denominator seems to be that the effects should be of a certain magnitude and not minimal (‘substantial’); they should be foreseeable from the perspective of an objective third party (‘reasonably foreseeable/intended’); and causally connected to the offence (‘direct’). These criteria could be of use also for the ICC. Finally, the required proof of the effects in the jurisdiction stage of a case seems to be very low. In both US and EU case-law, judges seem to be satisfied with very little by way of proven contentions on the existence of jurisdiction; the allegation itself in the United States seems to suffice, whereas in the European Union the projected effects of the proposed concentration to market structure were enough to justify jurisdiction. As regards the system of the ICC, this approach is arguably consistent with the recent decisions of the Appeals Chamber, awarding to the Prosecutor’s formulation of charges decisive importance for the establishment of jurisdiction ratione materiae.190 186 187 188

189 190

Ibid. Case T-204/03, Haladjian Fr`eres SA v. Commission [2006] ECR-II-3779, para. 167. South Africa, American Soda Ash Corp. & CHC Global (Pty) Ltd v. Competition Commission of South Africa et al., Case 12/CAC/DEC01 [2002], Appeal to Competition Appeal Court (25 October 2002), reported in Oxford Reports on International Law in Domestic Courts, International Law in Domestic Courts (ZA 2002) 493, para. 17. Ibid., para. 18. Further, Ryngaert, Jurisdiction over Antitrust Violations, above n. 114, 57–73. Prosecutor v. Francis Kirimi Muthaura et al. (Decision on the Appeal of Mr Francis Kirimi Muthaura and Mr Uhuru Muigai Kenyatta against the Decision of Pre-Trial Chamber II of 23 January 2012 Entitled ‘Decision on the Confirmation of Charges pursuant to

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6.3.7 Jurisdictional reasonableness and the ICC Statute: cases, situations and Mbarushimana A second overall safeguard to the interpretation of the Court’s territorial jurisdiction in light of the effects doctrine relates more broadly to the question of the proper limits to the Court’s jurisdiction under international law. The answer to this question may be given by a jurisdictional ‘rule of reason’ for the ICC as the ultimate limit imposed by international law to the teleological interpretation of the Statute. As explained in Chapter 2, it seems that the limit to State jurisdiction under international law is prescribed by a jurisdictional ‘rule of reason’. This rule encapsulates aspects of non-intervention and abuse of rights doctrine and provides that State jurisdiction complies with international law, when it is ‘reasonable’. ‘Reasonableness’ signifies the search for a sufficiently close link between a State and an activity. It was suggested that in the system of the Rome Statute, the Court’s reach under Article 12(2)(a) may be also subjected to this jurisdictional ‘rule of reason’, as the overarching legal limit to its authority under international law.191 This is particularly relevant for the use of the effects doctrine, a historically controversial manifestation of territorial jurisdiction. The Court’s preparatory works are not helpful in this examination. The use of the effects doctrine and the doctrine of reasonableness developed in public international law were not discussed during the negotiations of the Rome Statute.192 The ICC itself, however, has used a ‘sufficient link’ test in the first and only instance to date where its territorial jurisdiction was challenged and discussed at any length: the Mbarushimana Case.193 The Prosecutor charged Mr Mbarushimana with war crimes and crimes against humanity allegedly committed by him, in his capacity as one of the leaders of the Democratic Forces for the Liberation of Rwanda (FDLR), in the North and South Kivu provinces of the DRC between January 2009 and

191 193

Article 61(7)(a) and (b) of the Rome Statute’) ICC-01/09–02/11–425 (OA 4) (24 May 2012), and Prosecutor v. William Samoei Ruto et al. (Decision on the Appeal of Mr William Samoei Ruto and Mr Joshua Arap Sang against the Decision of Pre-Trial Chamber II of 23 January 2012 Entitled ‘Decision on the Confirmation of Charges pursuant to Article 61(7)(a) and (b) of the Rome Statute’) ICC-01/09–01/11–414 (OA 4) (24 May 2012). 192 See Section 2.5. See Chapter 3. Prosecutor v. Callixte Mbarushimana (Decision on the ‘Defence Challenge to the Jurisdiction of the Court’) ICC-01/04–01/10–451 (26 October 2011) (hereinafter, Mbarushimana Decision on Jurisdiction).

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20 August 2010.194 The Chamber was primarily concerned with jurisdiction as regards time. The situation was referred by the DRC in 2002 and it was unclear whether crimes committed in 2009 fell within the Court’s temporal jurisdiction. In order to address this concern, the PreTrial Chamber created a test; it considered that ‘it is necessary for the Chamber to determine whether such events are sufficiently linked to the situation of crisis that triggered the DRC investigation, so as to fall within its scope and therefore within the Court’s jurisdiction’.195 The Chamber ultimately decided to issue an arrest warrant, convinced upon the further submissions of the Prosecutor that crimes committed after the time of the referral fell within the Court’s jurisdiction, insofar as they were ‘sufficiently linked to the situation of crisis referred to the Court as ongoing at the time of the referral’.196 The territorial aspect was raised by the defence in its challenge to the Court’s jurisdiction. The defence argued that the Court lacked territorial jurisdiction, on the grounds that only events in the province of Ituri in the DRC were ‘sufficiently linked’ with the ongoing situation of crisis that triggered the jurisdiction of the Court. On the contrary, claimed the defence, events in the Kivu provinces – as the ones alleged by the Prosecutor in casu – were not so connected and therefore fell beyond the Court’s jurisdiction over the situation.197 The Court dismissed the defendant’s challenge. It considered that the crimes charged were sufficiently linked to the situation of crisis that was ongoing at the time of the referral.198 The Court considered such link to be present also with regard to the territorial parameter, i.e. the question of whether crimes in the Kivus were also included in the ongoing ‘situation of crisis’. This was demonstrated through the wording of the letter of the referral, the DRC’s submissions in other cases, a 2003 letter of the Office of the Prosecutor to the DRC, public speeches of DRC authorities, the Prosecutor’s Article 18

194 195

196

197 198

Situation in the Democratic Republic of the Congo (Prosecution’s Application under Article 58) ICC-01/04–573-US-Exp. (20 August 2010). Situation in the Democratic Republic of the Congo (Decision Requesting Clarification of the Prosecutor’s Application under Article 58) ICC-01-/04–575 (6 September 2010), para. 12. Prosecutor v. Callixte Mbarushimana (Decision on the Prosecutor’s Application for a Warrant of Arrest Against Callixte Mbarushimana) ICC-01/04–01/10–1 (28 September 2010), 5–6. Mbarushimana Decision on Jurisdiction, above n. 193, para. 6. Ibid., paras. 16, 39.

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letter on admissibility, and UN documents, particularly Security Council resolutions and Presidential Statements.199 The Court justified the need to search for the ‘sufficient link’ between the crime and the ‘situation of crisis’ on the basis that the primary responsibility for investigating and prosecuting crimes under the Statute rests with States. The Statute cannot be interpreted, in the opinion of the Court, so as to enable a State to ‘permanently abdicate’ its responsibilities by referring ‘a wholesale of present and future criminal activities comprising the whole of its territory, without any limitation in context or duration’; to do so, would be wholly antithetical to the concept of complementarity.200 In this case, the Court apparently tried to stipulate a principle, intended to restrain the interpretation of its jurisdiction on the basis of objective parameters; quintessentially, a jurisdictional ‘rule of reason’. In this context, the Court went to great lengths to demonstrate that the delimitation of its jurisdiction as regards time and space is primarily an objective issue; it depends largely on the facts of the case and their connection to the ongoing ‘situation of crisis’, rather than the subjective formulation of the text of the referral by the referring State.201 Laudable though this effort may be in principle, the specific application of this test and the reasoning of the Court leave a number of question marks, such that make its future application by the Court doubtful. Importantly, the Chamber failed to properly identify one of the two connecting elements essential for the operation of the test: the ongoing ‘situation of crisis’. The Chamber seems to suggest that a crime needs to be connected with the ‘situation of crisis’ at least insofar as its temporal and territorial aspects are concerned. However, the meaning of the ‘situation of crisis’ is unclear. The Court seems to use it as a term of art and at the same time fails to explain how it should be properly construed.202 As such, considering that the main question is the connection of the crimes charged with the facts of the ‘situation of crisis’, the application of the ‘sufficient connection’ test remains ambiguous throughout the decision. As regards the reasons that led to the adoption of this standard, they leave much to be desired. To begin with, it is debatable whether the Court’s reasoning is consistent with the system of the Rome Statute. The Court seems to engage in a teleological or contextual interpretation of Article 12(2)(a) in the light of Article 17 of the Rome Statute and complementarity. The Court therefore seems to infuse admissibility concerns in 199 202

200 201 Ibid., paras. 23–39. Ibid., para. 16. Ibid., para. 27. Rastan, ‘The Jurisdictional Scope’, above n. 1, 10–13.

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jurisdiction, although according to the Statute203 and the Rules204 they are two separate processes that relate to different issues and address different perspectives of the Court’s function. The Appeals Chamber has already indicated that admissibility criteria, such as gravity, should not be used to assess the existence of jurisdiction.205 Moreover, this course of action seems further problematic, as the Court first needs to assess whether the four parameters of its jurisdiction are satisfied206 before it decides to use one of its mechanisms for resolving jurisdictional conflicts.207 After all, if the Court does not have jurisdiction, the question of admissibility becomes moot. Critically, the decision does not explain this test in the light of general international law. Even though both the Court and the DRC are subjects of international law and their jurisdiction should comply with rules of international law, such analysis is absent from the decision. In particular, the Court makes no attempt to connect the ‘sufficient link’ test with the principle of non-intervention as a guiding principle for the exercise of jurisdiction. This is understandable, to a certain extent; the DRC did not raise an issue of intervention in its internal affairs by the Court’s investigation into Mbarushimana and there was no transboundary element properly raised.208 If nothing else, the DRC’s submissions were fully supportive of the Court’s jurisdiction over the case.209 Moreover, the Court does not seem to contemplate the endorsement of this test from the perspective of abuse of rights.210 The Court does not state clearly that under general international law, a referral purporting to 203 204 205

206

207 208

209 210

See Articles 12, 17, 18 and 19 of the Rome Statute. Rule 58(4) ICC Rules of Procedure and Evidence. Situation in the Democratic Republic of the Congo (Judgment on the Prosecutor’s Appeal against the Decision of Pre-Trial Chamber I Entitled ‘Decision on the Prosecutor’s Application for Warrants of Arrest, Article 58’) ICC-01/04–169 (13 July 2006), paras. 69–79. Prosecutor v. Thomas Lubanga Dyilo (Judgment on Appeal against Decision on Defence Challenge to Jurisdiction of the Court pursuant to Article 19(2)(a) of the Statute of 3 October 2006) ICC-01/04–01/06–772 (14 December 2006), paras. 21, 24. Further, Rastan, ‘The Jurisdictional Scope’, above n. 1, 12–13. Kenya Admissibility Appeal Decision, above n. 21, paras. 100–101. The defence tried belatedly to raise questions of territorial jurisdiction on account of Mbarushimana’s location in Paris during the commission of the alleged crimes in the Kivus, but the Court did not allow them. Mbarushimana Decision on Jurisdiction, above n. 193, paras. 59–60. Ibid., para. 15. In general, see Mann’s analysis in Mann, ‘The Doctrine of Jurisdiction in International Law’, above n. 105, 46–47. Further, from international practice, C. Brown, The Common Law of International Adjudication, International Courts and Tribunals Series (Oxford University Press, 2007), 72–78; A.D. Mitchell and D. Heaton, ‘The Inherent Jurisdiction

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delegate ‘wholesale’ criminal jurisdiction to the Court would constitute an abuse of the right of referral under Article 13.211 It certainly does not seem to suggest that the defence raised a successful argument to the effect that the wording of the DRC referral discharged the negative presumption concerning abuse of rights under international Law.212 The Court does not therefore seem to consider the issue from the perspective of general international law at all. Finally, the facts of the case do not assist the Court. They seem to be clear enough that an analysis of the Court’s territorial parameter on the basis of a ‘sufficiently substantial connection’ was probably not required. The President of the DRC referred the situation in his entire country, ‘dans mon pays’, in 2002.213 The President did not exclude any DRC territory from the situation.214 The Kivus were provinces of the DRC before, during and after the referral; this was never challenged by the defence. The crimes alleged were clearly situated within the Kivus.215 It seems like a simple equation. As a matter of law, the Court could have interpreted the text of the referral to mean the obvious, namely that ‘dans mon pays’ meant the entire territory of the DRC – and leave it at that. This course of action appears to have been followed in subsequent decisions, dealing with similar issues of temporal jurisdiction from the perspective of declarations under Article 12(3).216 In the absence of a template referral text, the DRC letter of referral was arguably worded precisely enough to give the Court the necessary basis to make such determination. It would seem therefore that the Court’s search for a sufficiently close connection to State Party territory was probably not warranted on the facts of the case. In the alternative, if its use was meant to justify jurisdiction on the basis of objective parameters of connection of the case to the situation,

211 212

213 214 215 216

of WTO Tribunals: The Select Application of Public International Law Required by the Judicial Function’, Michigan Journal of International Law, 31 (2010), 559, 560–562. The abuse of rights doctrine was explained by H. Lauterpacht, The Function of Law in the International Community (2nd edn, Oxford University Press, 2011), 294. Case Concerning Certain German Interests in Polish Upper Silesia (Merits) [1926] PCIJ Rep. Ser. A No. 7, 30; Case Concerning Legality of Use of Force (Serbia and Montenegro v. Belgium) (Preliminary Objections) (Separate Opinion of Judge Kreˇca) [2004] ICJ Rep. 279, para. 9, n. 4 (with references). Mbarushimana Decision on Jurisdiction, above n. 193, para. 23. See Article 29 VCLT. Prosecutor v. Callixte Mbarushimana (Decision on the Prosecutor’s Application for a Warrant of Arrest Against Callixte Mbarushimana), above n. 196, paras. 10–19 et seq. For the situation in Coˆ te d’Ivoire and the decisions of the Pre-Trial Chamber and the Appeals Chamber, see Chapter 8 in detail.

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the Court could have disposed of the entire matter by simply explaining that the vast majority of the territorial connections of the ‘conduct in question’ charged pointed to the territory of the DRC. It could then conclude that the crimes in question were sufficiently connected with DRC territory. The search for the connection with the ill-defined ongoing ‘situation of crisis’ does not seem helpful. To conclude, the Court’s first attempt to demonstrate jurisdictional self-restraint by recourse to objective standards and a ‘sufficiently close connection’ to State Party territory was not very convincing. Since the territorial status of the Kivus as DRC sovereign territory was never in question, and the issue of Mbarushimana’s stay in Paris was not raised properly, one fails to see the need to use a ‘sufficient link’ test in an arguably clear-cut case of territorial jurisdiction. Moreover, it is regrettable that in applying and justifying this test, the Court did not attempt to justify this principled approach by recourse to general international law and limited itself to a passing argument a contrario on the basis of complementarity. It would be indeed unfortunate if this shortcoming, coupled with the unclear concept of ‘situation of crisis’, led to the rejection of the ‘sufficient connection’ principle by the Court in its future case-law. At present, it is indicative that the Chambers dealing with similar temporal issues in the Coˆ te d’Ivoire challenges to jurisdiction have not followed Mbarushimana, even though at least the Pre-Trial Chamber was specifically asked to do so.217 Although these decisions are to be distinguished from Mbarushimana as they concern Article 12(3) declarations, they serve at least as an indication of the rejection of Mbarushimana in the Court’s subsequent jurisprudence. That said, the Court has not yet addressed the question of the interpretation of its territorial jurisdiction in cases requiring use of constructive localization due to the existence of transboundary elements. It therefore cannot be excluded that there is still future for the ‘sufficient close connection’ approach to the Court’s territorial jurisdiction.

6.4 Effects, cases and situations One last point that needs to be addressed concerns the application of the effects doctrine as regards territorial jurisdiction over situations and cases. 217

See Prosecutor v. Laurent Koudon Gbagbo (Decision on the ‘Corrigendum of the Challenge to the Jurisdiction’) ICC-02/11–01/11–212 (15 August 2012), para. 43 (by the Office of Public Council for Victims, OPCV).

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The effects doctrine, as a method of constructive localization under the rule of territorial jurisdiction, might be conceivably used in two ways; the first concerns the satisfaction of the preconditions under Article 12(2)(a) and the corresponding definition of a situation, whereas the second the connection of a case to a situation. As regards the definition of situations,218 the effects doctrine could be arguably used to connect a situation with the territory of a State Party. In this framework, the main question is whether a certain situation of mass criminality in a State not Party causes significant and causally connected effects within a State Party’s territory, such that would allow the localization of the criminal activity in the latter’s territory. The multi-level analysis would require answers to a number of questions, such as: what are the precise social, economic, or other effects felt by the suspected criminal activity within State Party territory? Can such effects be considered as ‘substantial’ for the economy or society of a State Party? Are these effects the result – direct, proximate or reasonably foreseeable from the perspective of an objective third party – of the commission of large-scale crimes in a State not Party? Provided that these questions are answered in the affirmative, the next step in the analysis would presumably be to assess the exercise of such jurisdiction by recourse to a second failsafe against arbitrariness: the Court’s own jurisdictional ‘rule of reason’. This rule might be used as a normative standard encapsulating public international law principles, such as non-intervention and abuse of rights, which the Court, as a subject of international law, should uphold. In practice, the main question here for the Court would be whether the overall circumstances of the situation denote a ‘sufficient connection’ between the ‘conduct in question’ and State Party territory. In doing so, the Court would be presumably entitled to identify all the connecting links between the crimes and State Party territory and decide whether, as a matter of principle, the exercise would be ‘reasonable’ under the circumstances, and thus in accordance with international law. Arguably, if all these questions are answered in the affirmative, the territorial precondition for the exercise of the Court’s jurisdiction under Article 12(2)(a) would be satisfied. This in turn would allow the Prosecutor or a State Party to trigger the Court’s jurisdiction over the situation under Article 13. In this context,

218

For an excellent overall analysis, Rastan, ‘The Jurisdictional Scope’, above n. 1, 1–34.

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in delimiting finally the territorial parameters of the situation,219 the Court would need to consider not only the physical location of the criminal act, but also the location of the manifestation of the effects in question. Additionally, as regards the connection of cases to situations, the basic rule is that a case needs to fall within the parameters of a situation for the Court to have jurisdiction over it.220 If that criterion is not satisfied, then the case may not be addressed by the Court, unless a new situation is properly triggered under Article 13.221 The issue of the connection of the territorial parameter of the case to the territorial limits of the situation has not been addressed by the Court’s jurisprudence at depth to date.222 In the Mbarushimana Case, the defence additionally requested the Pre-Trial Chamber’s permission to argue that the Court lacked territorial jurisdiction over the case, because it fell beyond the territorial confines of the situation in the DRC. In particular, the defence highlighted that the suspect was situated in France at the time that the alleged crimes were committed in the DRC. Thus, as far as his ‘alleged contribution to the criminal common purpose is concerned (i.e. his purported handling of the ‘deceitful’ international media campaign) – all of it was conducted on French territory and not in the DRC’.223 In light of this fact, and considering that the DRC referral covered only crimes committed within DRC territory, the defence moved the Court to decide that the case fell beyond the ambit of the DRC referral and should therefore be dismissed for lack of jurisdiction ratione loci.224 The Court did not deal with this submission as it was not considered to constitute a ‘new issue’ that could be properly raised at that stage of the proceedings.225 219 220

221 222 223

224

For an example of such delimitation of a situation by the Court, see Kenya Authorization Decision, above n. 20, paras. 175–178. Arts. 13(a) and 14 of the Rome Statute; Situation in the Democratic Republic of the Congo (Decision Requesting Clarification on the Prosecutor’s Application under Article 58) ICC-01/04–575 (6 September 2010), paras. 5–6. Rastan, ‘The Jurisdictional Scope’, above n. 1, 3. This is in contrast with other aspects of jurisdiction. Rastan, ‘The Jurisdictional Scope’, above n. 1, 24–25 et seq. Prosecutor v. Callixte Mbarushimana (Defence Request for Leave to Reply to the Prosecution’s Response to the Defence Challenge to the Jurisdiction of the Court and Defence Request to Adduce Oral Testimony) ICC-01/04–01/10–323 (1 August 2011), para. 6. 225 Ibid. Mbarushimana Decision on Jurisdiction, above n. 193, para. 60.

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If the submission was raised on time, however, it would be presumably easy for the Court to address it. As regards the connection of the case to the situation, Mr Mbarushimana was charged with alleged participation in crimes committed in the DRC.226 He was not charged with the commission of a crime in France. In addition to Lotus, there is a wealth of State practice to support the contention that territorial jurisdiction exists when a crime has been committed in whole or in part in State territory, irrespective of the actual location of the participants.227 An interesting issue involving the application of the effects doctrine could possibly arise if the accused was charged with an inchoate crime. For example, the answer would be more complicated if in the context of the DRC situation the Prosecutor charged Mr Mbarushimana with incitement to commit genocide in the DRC, due to his alleged statements published in the French media or online during his stay in France.228 In those circumstances, the Court’s answer would depend on both the construction of the crime, as well as the applicable localization device.229 In particular, the Court could consider that the crime of incitement was committed in part in the DRC, as people there might have access to the inflammatory speeches in question. The Court could also consider whether the act of publishing a speech online in France gave rise to substantial, direct and reasonably foreseeable effects in the DRC, in a way similar to that suggested by Hayashi on the experience of the German decisions in T¨oben or the French rulings in Yahoo!.230 In that event, the Court would potentially use the effects doctrine as a means of connecting the crimes in a specific case, within the situation under investigation. That said, these are largely unchartered waters that require further clarification. The Court has yet to explain clearly the decisive threshold for the connection of the territorial parameter of a case involving transboundary elements to a situation under investigation.

226 227 228

229 230

Prosecutor v. Callixte Mbarushimana (Decision on the Prosecutor’s Application for a Warrant of Arrest Against Callixte Mbarushimana), above n. 196. See above Section 2.4.2.1 on localization of acts of participation. The Prosecutor alleged in that case that Mr Mbarushimana participated under Art. 25(3)(a) to the commission of crimes in the DRC by the FDLR by conducting an international campaign via international media. Prosecutor v. Callixte Mbarushimana (Decision on the Prosecutor’s Application for a Warrant of Arrest Against Callixte Mbarushimana), above n. 196, para. 34. See above Section 5.5 in detail. See above Section 5.6 on the commission of crimes over the internet.

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6.5 Conclusion It is understandable that scholars and practitioners around the world would view the possibility of reading in Article 12(2)(a) ICC Statute the effects doctrine as a highly controversial proposition. The arguments against it could be many, stimulated equally by legal and policy considerations. It is not disputed here that at least some of these objections make the application of the effects doctrine by the Court seem difficult. The present work has tried to explore how these concerns may be addressed through State practice and judicial decisions. This chapter sought at the outset to answer the following question: why should the Court have recourse to this doctrine? In reply, it has been explained that the criminal activity falling within the Court’s jurisdiction is significantly more important and horrifying than the commission of price-fixing offences and cartel agreements. Accordingly, the ICC is morally justified – if not compelled – to use the same approach to territoriality for the repression of offences equally abhorrent to all States in the world, which is already used for the repression of activity on the verge of criminalization by certain States. Even if the Court does not actually proceed with the cases, this course of action might stimulate the Security Council or other States to look into such situations more seriously and deter the commission of future crimes. Having explained in broad strokes why this course of action is seen as morally justified, the next part sought to address the legal considerations underpinning the exercise of such jurisdiction. This is perceived as a question of interpretation of Article 12(2)(a) ICC Statute. The effects doctrine is treated therefore as another form of objective territorial jurisdiction, the difference being on the type of effects required for the Court’s jurisdiction under Article 12(2)(a). In this context, as Cameron explained, the effects doctrine is simply one more way for the juridical localization of criminal activity.231 It is not a question of inventing or applying a new rule. Evidently, this is an exercise in teleological interpretation. The purpose is to ‘enable the system to . . . attain its appropriate effects, while preventing any restrictions of interpretation that would render the provisions of the treaty inoperative [emphasis in the original]’.232 This interpretation 231 232

Cameron, The Protective Principle, above n. 117, 64. Prosecutor v. Jean-Pierre Bemba Gombo (Decision Adjourning the Hearing pursuant to Article 67(7)(c)(ii) of the Rome Statute) ICC-01/05–01/08 (3 March 2009), para. 36.

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could assist in bridging at least partly the gap between the universalist aspirations underlying the Court’s operation (prevent and punish crimes of international concern) and the sovereignty-oriented rules (territoriality, nationality) it was equipped with.233 From a doctrinal perspective, the application of the effects doctrine by the ICC seems to largely rest upon one significant point of connection between the two bodies of law: the use of the effects doctrine as a manifestation of a territorial criminal jurisdiction. There is State practice to support the view that the effects doctrine is an accepted interpretation of territorial criminal jurisdiction. US law has been at the forefront of the relevant developments. The Nippon Court, through interpretation of its national jurisdiction, decided that it is ‘not much of a stretch’ to read the effects doctrine in national criminal law.234 In the same spirit, it could be argued that it would not be a ‘stretch’ to have this rule ‘read’ by the permanent ICC in Article 12(2)(a) through interpretation. Having discussed the main two points underpinning this argument, the next step is to tackle possible objections against it. There is no shortage of challenges that may be raised, some easier to answer than others. For example, a challenge to the power of the Court to interpret its jurisdiction may be filed. However, the Court’s power to interpret its jurisdiction is well established in international law. Accordingly, for this discussion, it is irrelevant that the Court is an international court, as opposed to a national court. Its power to dynamically interpret its Statute (kompetenz kompetenz) stems from international law, rather than the consent of States.235 Provided that the limits laid down by general international law and the Statute are not trespassed, e.g. by substituting territorial with universal jurisdiction, the Court enjoys a measure of liberty in the interpretation of its jurisdiction. A number of other objections have also been addressed, on questions relating to State sovereignty or the principle of non-intervention. Admittedly, these arguments by themselves may prove insufficient to assuage concerns of judicial activism, no matter their validity under international law. After all, the effects doctrine has a troubled history. Its unilateral application has been connected with concerns of jurisdictional over-reach and financial hegemonism. It is therefore important to subject 233 234 235

See Introduction, Chapter 1. United States v. Nippon Paper Industries Co. Ltd, above n. 13, 6. Prosecutor v. Jean-Pierre Bemba Gombo (Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor against Jean-Pierre Bemba Gombo) ICC-01/05–01/08 (15 June 2009), 10, para. 23.

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its application in the ICC context to conditions, as safeguards against abuse. Two main limitations are envisaged here; first, the Court can prescribe qualifications to the effects. In this context, the Prosecutor would need to prove that there are direct, substantial and foreseeable effects on State Party territory, on which the Court may base its jurisdiction under Article 12(2)(a). The challenging party, on the other hand, would be able to contest whether these conditions were met. Secondly, as an overarching principle, the Court’s jurisdiction could follow a ‘rule of reason’ analysis of its jurisdiction under international law. The critical question for the Court would be whether in light of all attendant circumstances, these direct, substantial and foreseeable effects qualify as a ‘substantial connecting link’ between the territory of a State Party and the criminal activity in question. The Court would then need to address the matter holistically. The Mbarushimana Case may be a useful starting point in such effort. However, the Court’s future jurisprudence would need to further clarify the precise content of the principles involved and finetune their application. In closing, the main problem underlying the use of the effects doctrine by the Court rests in its novelty. The Court would have to break new ground, at least insofar as this proposition is entirely novel in legal history – much as the Court’s existence itself. It is the absence of a body of law in support of this proposition that makes this idea an interesting perspective de lege ferenda. As such, it seems that whether one accepts or rejects the effects doctrine and its application by the ICC depends correspondingly on the point where one draws the line between the use and abuse of the Court’s kompetenz kompetenz. Evidently, this case of teleological interpretation is no different than others; the tension between the morally appropriate option and the ‘realistically possible’ one is clear. That said, there is an argument to be made in favour of the use of the effects doctrine by the Court. This interpretation may be historically controversial, but can no longer be seen as a call for judicial activism. It is but one of many extensive interpretations of territorial jurisdiction adopted in State practice, some of which are probably equally challenging.236 Although it is a 236

For example, States have asserted territorial criminal jurisdiction over agreements to commit crimes concluded abroad, when the intended location of the main crime is within that State’s territory, irrespective of whether the agreed crime ever manifested or not. See Somchai Liangsiripraesert v. US (1990) 29 ILM 1390, and United States v. Davis, above n. 111. Further on attempt and territorial jurisdiction, Chapter 2.

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contentious interpretation, it is believed that the effects doctrine merits closer attention, particularly in light of the criminal conduct involved and the cross-border nature of the crimes the Court has to deal with. Ultimately, it is up to the Court’s organs to decide whether and, if so when, the circumstances are ripe for reading the effects doctrine in Article 12(2)(a) ICC Statute.

7 Belligerent occupation and ICC territorial jurisdiction

7.1 Introduction In the previous chapters some of the main doctrinal issues surrounding the interpretation of Article 12(2)(a) ICC Statute and the possibilities under international law for the localization of criminal acts were considered. In this chapter, attention will be given to issues relating to the concept of territory in that provision (‘the territory of which’) and the territorial scope of application of the Rome Statute. At the outset, it can be stated that there is no shortage of ‘grey areas’. In light of the initial situations pending before the Court, the question of territorial jurisdiction in occupied territories is particularly important. A finding of occupation has already been made in the Lubanga Case.1 This discussion may be relevant also as regards potential cases arising out of alleged crimes committed in the Occupied Palestinian Territories,2 occupied Cyprus3 or even South Ossetia and Abkhazia.4 In analysing the legal questions arising from situations of belligerent occupation, this chapter will first formulate some of the basic principles of 1

2

3

4

Prosecutor v. Thomas Lubanga Dyilo (Decision on the Confirmation of Charges) ICC01/04–01/06-803-tEN (29 January 2007) 76, para. 220 (hereinafter, Lubanga Confirmation of Charges Decision). For Palestine’s Declaration under Art. 12(3), Declaration Recognizing the Jurisdiction of the International Criminal Court, available at, www.icc-cpi.int/NR/rdonlyres/ 74EEE201-0FED-4481-95D4-C8071087102C/279777/20090122PalestinianDeclaration2. pdf (last accessed 19 February 2013). The Republic of Cyprus ratified the Rome Statute on 7 March 2002 and became the 55th State Party to the Rome Statute. For details: www2.icc-cpi.int/Menus/ASP/states+parties/ Asian+States/Cyprus.htm (last accessed 26 February 2013). For Cyprus in more detail, below Section 7.5. For the Georgia–Russia conflict, Application of the International Convention on Elimination of All Forms of Racial Discrimination [CERD] (Georgia v. Russia) (Provisional Measures Order) [2008] ICJ Rep. 249, paras. 24, 32, 33, 39, 43, 55 (on Georgia’s allegations that Russia was in fact occupying certain areas), para. 74 (on Russia’s refutation of Georgia’s allegations).

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applicable treaty law and international humanitarian law. Subsequently, three different situations will be examined; first, the case of occupation of the territory of a State Party by another State Party (e.g. Uganda/DRC over Ituri), secondly the occupation of the territory of a State Party by a State not Party (e.g. Cyprus/Turkey, respectively), and thirdly the case of occupation of the territory of a State not Party by a State Party (e.g. Iraq by the United Kingdom). General conclusions are offered at the end. A number of issues will not be discussed in this chapter. The most important is the Palestine referral to the ICC. This topic requires a separate, in-depth examination under Article 12(3) ICC Statute. It has been extensively discussed in scholarly writings and expert opinions offered to the Prosecutor.5 The future of the Palestine acceptance seems to depend largely on whether Palestine is accepted as a ‘State’ for the purposes of Article 12(3) Rome Statute.6 The matter is on hold, and will most likely remain as such in the foreseeable future, following the Prosecutor’s decision to refer the question of Palestinian statehood to the ASP.7 Further, questions of ICC jurisdiction under Article 12(2)(a) in territories under UN Interim Administration deserve a much more detailed examination, including also Articles 13, 16, the UN–ICC Relationship Agreement and the UN Charter; as such, they will not be dealt with here.

7.2 The problem This chapter will explore the meaning of the words ‘territory of State Party’ and correspondingly the territorial scope of application of the 5

6 7

Situation in Palestine, ICC Office of the Prosecutor, Summary of Submissions on Whether the Declaration Lodged by the Palestinian National Authority Meets Statutory Requirements (3 May 2010) available at: www.icc-cpi.int/NR/rdonlyres/ 553F5F08--2A84--43E9--8197--6211B5636FEA/282852/PALESTINEFINAL201010272. pdf (last accessed 28 February 2013). Further, Y. Ronen, ‘ICC Jurisdiction over Acts Committed in the Gaza Strip, Article 12(3) of the ICC Statute and Non-State Entities’, Journal of International Criminal Justice, 8 (2012) 3–27; Y. Shany, ‘In Defence of Functional Interpretation of Article 12(3) of the Rome Statute: A Response to Ya¨el Ronen’, Journal of International Criminal Justice, 8 (2010), 329; W.T. Worster, ‘The Exercise of Jurisdiction by the International Criminal Court over Palestine’, American University International Law Review, 26 (2012). The Rome Statute of the International Criminal Court, 7 July 1998 (entered into force 1 July 2002), 2187 UNTS 3, Art. 12(3) (hereinafter, the Rome Statute). ICC Office of the Prosecutor, Situation in Palestine (3 April 2012), available at: www.icc-cpi.int/NR/rdonlyres/C6162BBF-FEB9-4FAF-AFA9-836106D2694A/284387/ SituationinPalestine030412ENG.pdf (last accessed 28 February 2013).

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Statute through the lens of Article 12(2)(a) in situations of belligerent occupation. The Court’s practice is scant. In Lubanga, the question of occupation of Ituri received only peripheral treatment, since both occupied and occupying States are parties to the Statute.8 On the other hand, in the situation of Iraq, the Prosecutor refused to open an investigation. In his February 2006 letter explaining the reasons for his refusal, the Prosecutor underlined that, as Iraq was not a State Party, the Court had jurisdiction only over nationals of State Parties.9 The issue of territorial jurisdiction was addressed in a brief, cryptic statement contained in a footnote; ‘[t]he Office examined arguments submitted subsequently that were based on alleged connections to the territory of States Parties, but in light of the applicable law under Article 21, the peripheral connections indicated by the available information did not appear to satisfy the requirements for territorial jurisdiction.’10 The Prosecutor did not clarify the criteria used to make this decision. Be that as it may, the situation was eventually filed for reasons of gravity and admissibility.11 In this framework, in the context of state responsibility, international courts12 and human rights monitoring organs13 have explained that a

8 9

10 11

12

13

See Section 7.4 in detail. ICC Office of the Prosecutor, Letter of the Office of the Prosecutor concerning the situation in Iraq (9 February 2006), available at: www.icc-cpi.int/NR/rdonlyres/ 04D143C8--19FB-466C-AB77--4CDB2FDEBEF7/143682/OTP letter to senders re Iraq 9 February 2006.pdf (last accessed 19 February 2013). Ibid., 3, n. 9. Ibid., 8–9. M. O’Brien, ‘The Impact of the Iraq Communication of the Prosecutor of the International Criminal Court on War Crimes Admissibility and the Interests of Victims’, University College Dublin Law Review, Symposium Edition (2007), 109, 111, 119–25; W. Schabas, ‘Prosecutorial Discretion v. Judicial Activism at the International Criminal Court’, Journal of International Criminal Justice, 6(4) (2008), 731, 739, 748; J. Wouters et al., ‘The International Criminal Court’s Office of the Prosecutor: Navigating between Independence and Accountability?’, International Criminal Law Review, 8 (2008), 237, 316; R. W. Heinsch, ‘Possibilities to Prosecute War Crimes Committed in Iraq: The Different Forum Options’, Internationales V¨olkerrecht, 16 (2003), 132, 132–134; D. Jacobs, ‘A Samson at the International Criminal Court: The Powers of the Prosecutor at Pre-Trial Phase’, Law and Practice of International Courts and Tribunals, 6 (2007), 317, 322. Legal Consequences for States of Continued Presence of South Africa in Namibia (Southwest Africa) notwithstanding Security Council Resolution 276 (Advisory Opinion) [1971] ICJ Rep. 16, 53–54 para. 118 (hereinafter, Namibia Advisory Opinion). In detail below Section 7.6.2.2.

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State is internationally responsible for breaches of its obligations in territories under its control. One important question therefore is whether this reasoning is transposable to individual criminal responsibility under the Rome Statute. In those circumstances, it has been argued further that localization devices may be used, in order to constructively localize the criminal activity in question clearly within a State Party’s national boundaries.14 The silence of the Statute on the territorial parameter of the Court’s jurisdiction is evident also in the case of occupation. In keeping therefore with the process suggested in Chapter 6,15 the present analysis will treat this issue principally as a question of interpretation. In this context, the rules of international law are used to inform the entire discussion primarily as instruments of interpretation, in accordance with Article 31(3)(c) VCLT. In the alternative, rules of international law could be used as sources of law in accordance with Article 21 of the Statute, if no reasonable results are forthcoming from the interpretation of Article 12(2)(a).16 It is therefore necessary, in an effort to address these questions, to make reference to general treaty law and some of the basic axioms of the law of belligerent occupation.

7.3 Basic principles and rules The basic rules of international law on belligerent occupation, on the premise of which this chapter will be founded, include a number of fundamental axioms. 14

15 16

I. Bantekas, ‘Head of State Immunity in the Light of Multiple Legal Regimes and NonSelf-Contained System Theories: Theoretical Analysis of ICC Third Party Jurisdiction against the Background of the 2003 Iraq War’, Journal of Conflict and Security Law, 10 (2005), 21, 39–40. Naturally, Bantekas explained that this possibility may exist ‘at some hypothetical future time’, in light of prevailing political exigencies, but not for Iraq. W. Schabas, ‘Complicity before the International Criminal Tribunals and Jurisdiction over Iraq’, in P. Shiner and A. Williams (eds.), The Iraq War and International Law (Oxford: Hart, 2008), 143; W. Schabas, The International Criminal Court: A Commentary on the Rome Statute (Oxford University Press, 2010), 285. See generally above Section 5.1.2.4. For the position that this approach corresponds to the ‘consistent case law’ of the Court, see Prosecutor v. Omar Hassan Ahmad Al-Bashir (Decision on the Prosecution’s Application for a Warrant of Arrest against Omar Hassan Ahmad Al-Bashir) ICC-02/05–01/09–3 (3 March 2009), para. 44.

7.3 basic principles and rules

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Occupation is a temporary situation:17 the Occupying Power does not acquire sovereignty over occupied territories by reason of annexation and the use of force.18 Therefore, the ‘departed sovereign’ (including a recognized Government in Exile) retains de jure jurisdiction over occupied territories19 and the capacity to conclude treaties formally applicable therein.20 These are consequences of the retention of sovereignty by the occupied Power over the occupied territory.21 For present purposes, this means concretely that the Statute applies to the entire territory of a State Party to the Rome Statute, absent an expression of clear intention to the contrary.22 17

18 19

20

21 22

Arts. 42–43 of the 1907 Hague Regulations (HagReg); Arts. 47, 64 of the 1949 Geneva Convention Relative to the Protection of Civilian Persons in Time of War, 12 August 1949, 75 UNTS 287–417 (1950) (Geneva Convention IV). A. Jennings and A. Watts (eds.), Oppenheim’s International Law, (9th edn, London: Longman, 1996), vol II, 433– 434, 436, 437; E. Benvenisti, The International Law of Occupation (Princeton University Press, 2004), 8; Y. Arai-Takahashi, The Law of Occupation, Continuity and Change of International Humanitarian Law, and its Interaction with International Human Rights Law (Leiden: Martinus Nijhoff, 2009), 42–43; M.N. Shaw, ‘Territorial Administration by NonTerritorial Sovereigns’, in T. Broude and Y. Shany (eds.), The Shifting Allocation of Authority in International Law: Essays in Honour of Ruth Lapidoth (Oxford: Hart, 2008), 379; G. von Glahn, The Occupation of Enemy Territory: A Commentary on the Law and Practice of Belligerent Occupation (Minneapolis, MN: Minnesota University Press, 1957), 31; H. Gasser, ‘Protection of the Civilian Population’, in D. Fleck et al. (eds.), The Handbook of International Humanitarian Law (2nd edn, Oxford University Press, 2008), 277–278; ` ‘Legislation and Maintenance of Public Order and Civil Life by Occupying M. Sassoli, Powers’, European Journal of International Law, 16 (2005), 661, 668; R. Kolb and S. Vit´e, Le Droit de L’Occupation Militaire: Perspectives Historiques et Enjeux Juridiques Actuels (Brussels: Bruylant, 2009), 185–6. Legal Consequences of Construction of Wall in Occupied Palestinian Territory (Advisory Opinion) [2004] ICJ Rep. 136, 171, para. 8 (hereinafter, Wall Advisory Opinion). Y. Dinstein, The International Law of Belligerent Occupation (Cambridge University Press, 2009), 1; A. McNair and A. Watts, The Legal Effects of War (4th edn, Cambridge University Press, 1966), 426; G.H. Fox, ‘The Occupation of Iraq’, Georgetown Journal of International Law, 36 (2004–2005), 237. Thus, nemo dat quod non habet does not apply here. International Law Commission, Articles on the Effects of Armed Conflicts on Treaties, Draft Article 6 [2008], International Law Commission Rep. 124–125 with commentary. S.A.G. Talmon, Recognition of Governments in International Law: With Particular Reference to Governments in Exile (Oxford: Clarendon Press, 1998), 117–131. A.M. Stuyt, The General Principles of Law as Applied by International Tribunals to Disputes of Attribution and Exercise of State Jurisdiction (The Hague: Martinus Nijhoff, 1946), 253. Article 29 of the Vienna Convention on the Law of Treaties, Vienna, 23 May 1969, entered into force 27 January 1980, 1155 UNTS 331, (1969) 8 ILM 679. M.E. Villiger, Commentary on the 1969 Vienna Convention on the Law of Treaties (Leiden: Martinus Nijhoff, 2009), 392–393; A. Aust, Modern Treaty Law and Practice (2nd edn., Cambridge University

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Additionally, the criminal law of the occupied State continues to apply in the occupied territory, unless amended or repealed by the occupying Power in accordance with applicable humanitarian law.23 However, finally, the de facto exercise of enforcement jurisdiction within occupied territories is a prerogative of the occupying Power(s), albeit one strictly circumscribed by the applicable rules of international law.24 It is submitted that insofar as the present analysis of Article 12(2)(a) in accordance with Article 21(1)(a) and (b) ICC Statute is concerned, these rules of international law are likely to play a role in the future disposition of relevant legal questions. In this context, as the following pages will also explain, the basic position is that an occupied State has de jure the capacity to become a Party to the ICC Statute with regard to its entire territory – free or occupied. This could arguably apply by analogy also in the case of Article 12(3) declarations, insofar as territorial jurisdiction is concerned. The de facto implementation of the Statute, however, within the occupied territory during the occupation, will largely depend on the cooperation of the occupying Power.

7.4 The application of Article 12(2)(a) in State Party territories occupied by another State Party The Rome Statute does not define the concept of occupation. It does however provide in footnote 34 of the Elements of Crimes that ‘the term “international armed conflict” includes military occupation’. This

23

24

Press, 2007), 200–201; Jennings and Watts, Oppenheim’s International Law, above n. 17, 1250–1251; S. Karagiannis, ‘Article 29’, in O. Corten and P. Klein (eds.), Les Conventions de Vienne sur le Droit des Trait´es: Commentaire Article par Article (Brussels: Bruylant, 2006), 1189–91. Art. 43 1907 Hague Regulations; Art. 64 Geneva Convention IV, above n. 17; UK Ministry of Defence, The Manual of the Law of Armed Conflict (Oxford University Press, 2004), 283–284; E. David, Principes de Droit des Conflits Arm´es (4th edn, Brussels: Bruylant, 2008), 562; Chin Chi-Huo (alias Ken Honda) v. Japan, 26 ILR 704 (1958-II) (1 June 1955); Kolb and Vit´e, Le Droit de L’Occupation Militaire, above n. 17, 188–190; J. Pictet, Commentary on Geneva Convention IV (Geneva: CRC, 1958) 335; Arai-Takahashi, The ` ‘Legislation and Maintenance of Public Law of Occupation, above n. 17, 121; Sassoli, Order and Civil Life by Occupying Powers’, above n. 17, 663–664; J. M. Henckaerts and L. Doswald-Beck, Customary International Humanitarian Law (Cambridge University Press, 2005), vol. I, 337. Art. 43 of the 1907 Hague Regulations, above n. 17; Dinstein, The International Law of Belligerent Occupation, above n. 19, 46, US v. List (The Hostages Case), 8 Law Reports of Trials of Major War Criminals (1949), 1244–45; In re Scarpato, 18 ILR 625, 626–627 (1951) (Court of Cassation, Italy).

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footnote applies to the corresponding element in each crime under Article 8(2)(a) [ICC Statute].25 The Statute therefore anticipates the commission of crimes within the jurisdiction of the Court in conditions of occupation. Such war crimes are considered as war crimes committed in an international armed conflict.26 In the practice of the Court, there has been only one situation where the question of occupation has arisen, without any immediate connection to questions of jurisdiction and territoriality; the occupation of the DRC region of Ituri by Uganda.27 The matter was discussed in the Confirmation of Charges Decision in the Lubanga Case, where Pre-Trial Chamber I was called upon to classify the conflict in the Ituri region of Eastern DRC during 2003–2004 for the purpose of confirming the charges against the accused.28 The Chamber decided on the basis of the evidence before it that a single characterization of the conflict was not feasible due to Uganda’s occupation of Ituri and, accordingly, that the charges should be divided, taking into account foreign State involvement in the conflict. Thus, the Chamber accepted that ‘as a result of the presence of the Republic of Uganda as an Occupying Power, the armed conflict which occurred in Ituri can be characterized as an armed conflict of an international character from July 2002 to 2 June 2003, the date of the effective withdrawal of the Ugandan army’.29 The Chamber also examined the alleged Rwandan involvement but decided, by reason of ‘the paucity of evidence before it’,30 that it could not reach a conclusion as to Rwanda’s possible occupation of Ituri during the critical time. 25

26 27 28

29 30

ICC Elements of Crimes, Assembly of States Parties, 1st Session (3–10 September 2002), Official Records ICC-ASP 1/3, Part II-B (9 September 2002), Art. 8(2)(a)(i) 15, n. 34. For analysis, K. D¨ormann et al., ‘The Context of War Crimes’, in R. S. Lee (ed.), The International Criminal Court: The Making of the Rome Statute. Issues, Negotiations, Results (The Hague: Kluwer Law International, 1999), 115; Lubanga Confirmation of Charges Decision, above n. 1, at 72, para. 205. Lubanga Confirmation of Charges Decision, above n. 1, para. 220. All other situations (CAR, Uganda, Kenya and Sudan) contain charges relating to noninternational armed conflicts. For the situation in Iraq, see above Section 7.2. Lubanga Confirmation of Charges Decision, above n. 1; for the Katanga and Ngundjolo Chui Case, below n. 30. The ICJ had already discussed the issue of occupation of Ituri under international law. Armed Activities in Territory of Congo (Democratic Republic of the Congo v. Uganda) (Merits) [2005] ICJ Rep. 168, 229–230, paras. 172–175. Lubanga Confirmation of Charges Decision, above n. 1, 76, para. 220. Ibid., 78, para. 226. Prosecutor v. Germain Katanga and Matthieu Ngundjolo Chui (Decision on the Confirmation of Charges) ICC-01/04–01/07–717 (30 September 2008), para. 241, followed the same course as the Lubanga Confirmation of Charges Decision, insofar as Rwanda is concerned, invoking ‘limited evidence’.

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The Chamber finally confirmed the charges against the accused in the context of an international armed conflict from early September 2002 to 2 June 200331 and in a non-international armed conflict from 2 June to 13 August 2003.32 The confirmation decision attracted a significant amount of commentary in the literature.33 For the purposes of the present analysis, two points of the Lubanga Confirmation decision merit special attention. First, the Chamber did not examine the issue of territorial jurisdiction. It briefly affirmed its jurisdiction, as nothing had changed from its preliminary finding on this matter in the Arrest Warrant Decision.34 In its earlier decision on the issuance of the arrest warrant, the Pre-Trial Chamber had decided that Article 12(2)(a) was satisfied, because the alleged crimes were said to be committed ‘in the region of Ituri on the territory of the DRC, . . . ’35 It also affirmed that the alleged crimes fell within the Court’s temporal jurisdiction, considering the dates of ratification and entry into force of the Statute specifically for the DRC.36 31

32 33

34 35

36

Lubanga Confirmation of Charges Decision, above n. 1, 156. On September 2002, Lubanga became the Commander-in-Chief of the FPLC, the military wing of the Union of Congolese Patriots for Reconciliation and Peace (UPC/RP), of which he was also the President. Ibid., 6, paras. 8–9. Ibid., 156–157. On this decision, O. Bekou, ‘Prosecutor v. Thomas Lubanga Dyilo – Decision on the Confirmation of Charges’, Human Rights Law Review, 8 (2008), 343; M.A. Drumbl, ‘Prosecutor v. Thomas Lubanga Dyilo: d´ecision sur le confirmation des charges’, American Journal of International Law, 101 (2007), 841; J.C. Ochoa-Sanchez, ‘The ICC’s Pre-Trial Chamber I Confirmation of Charges Decision in the Case of Prosecutor v. Thomas Lubanga Dyilo: Between Application and Development of International Criminal Law’, European Journal of Crime, Criminal Law and Criminal Justice, 16 (2008), 39; G. De Beco, ‘The Confirmation of Charges before the International Criminal Court: Evaluation and First Application’, International Criminal Law Review, 7 (2007), 469; M. Happold, ‘Prosecutor v. Thomas Lubanga, Decision of Pre-Trial Chamber I of the International Criminal Court, 27 January 2007’, International and Comparative Law Quarterly, 56 (2007), 713; T. Weigend, ‘Intent, Mistake of Law and Co-perpetration in the Lubanga Decision on Confirmation of Charges’, Journal of International Criminal Justice, 6 (2008), 471; M. Miraglia, ‘Admissibility of Evidence, Standard of Proof and Nature of the Decision in the ICC Confirmation of Charges in Lubanga’, Journal of International Criminal Justice, 6 (2008), 489. Lubanga Confirmation of Charges Decision, above n. 1, at 56, para. 166. Prosecutor v. Thomas Lubanga Dyilo (Decision on the Prosecutor’s Application for a Warrant of Arrest, Article 58) ICC-01/04–01/06–37 (10 February 2006), para. 27. This decision is available as Annex I to Prosecutor v. Thomas Lubanga Dyilo (Decision concerning PreTrial Chamber I’s Decision of 10 February 2006 and the Incorporation of Documents into the Record of the Case against Thomas Lubanga Dyilo) ICC-01/04-01/06-8-US-Corr. (24 February 2006). Lubanga Arrest Warrant Decision, above n. 1, 18, para. 26.

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Secondly, the Chamber did not deal at all with the question of the source of its jurisdiction.37 Fundamentally, it did not explicitly answer the question whether the Court had jurisdiction because the DRC (the Occupied Power), retained at least prescriptive jurisdiction over Ituri during its occupation by Uganda, which in turn allowed it to delegate territorial jurisdiction to the ICC. Additionally, it did not explain clearly whether the Court’s jurisdiction stemmed in fact from Uganda’s ratification of the Statute and its effective control over the territory in question for a certain period of time,38 or whether the application of the Rome Statute as an international treaty was suspended by reason of the armed conflict and the occupation.39 In all fairness, it must be admitted that the defence did not make an argument attacking the Court’s jurisdiction or asking for the classification of the case in the context of a different situation. It did, however, raise an objection based on the principle of legality (Article 22 ICC Statute). The defence invoked Articles 64 and 65 of Geneva Convention IV and argued that ‘only legislation in force at the start of the occupation remains in force and any laws passed subsequently do not apply’.40 The defence argued essentially that Lubanga was not aware of the criminal prohibition he allegedly violated, because the Statute entered into force as regards Uganda only on 1 September 2002. Due to Article 65 GC IV, new penal provisions introduced by the Occupying Power shall not come into force until they have been brought to the knowledge of the population.41 Considering that the ratification of the Rome Statute was allegedly not made known 37

38

39

40 41

Ochoa-Sanchez, ‘Confirmation of Charges Decision in the Case of Prosecutor v. Thomas Lubanga Dyilo’, above n. 33, 41–42 and 49. For that author, the Court should have examined ‘the specific source of the applicability of the ICC Statute’ under Arts. 64 and 65 of the Geneva Conventions, in light of the acceptance of Ituri’s occupation by Uganda from September 2002 until June 2003. Ibid. National extradition law contains very few examples, where objections on the basis of loss of control over occupied Territory resulted in a refusal to extradite, on account of the fact that such situations affected the application of bilateral extradition agreements. In Re Lo Dolce, 106 F.Suppl. 455 (1952), 323–324; G. Gilbert, Responding to International Crime (Leiden: Martinus Nijhoff, 2006), 51. The issue of suspension or termination of the Rome Statute by reason of an armed conflict or occupation is far from clear and deserves a more lengthy analysis. The topic is currently pending before the ILC. At present, the Commission has produced a set of draft articles approved at first reading, International Law Commission, ‘Report of the International Law Commission on the Work of its 63rd Session’ (5 May to 6 June and 7 July to 8 August 2008), UN Doc. A/63/10, 83–87, Arts. 1–18 and Annex, with commentaries. Lubanga Confirmation of Charges Decision, above n. 1, 102, para. 295. Ibid., 103, para. 296.

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to the inhabitants of Ituri by either the DRC or Uganda, therefore the prohibition of enlisting and conscripting child soldiers did not apply, otherwise the charge in question would violate the principle of legality. In addition, finally, the defence argued that the provisions of enlisting and conscripting child soldiers in the Rome Statute and their counterparts in Additional Protocols I and II and the Optional Protocol to the Convention on the Rights of the Child are different. Therefore, Lubanga could not foresee that his conduct would entail criminal responsibility.42 The Chamber interpreted the objection as one of mistake of law.43 It did however mention that, as regards the principle of legality, the crimes in question were sufficiently defined in the Statute and the Elements, and that the Statute entered into force on 1 July 2002. Therefore, the commission of such offences entailed criminal responsibility.44 The Chamber thus concluded that all the aspects of legality were satisfied and that the objection failed.45 The Chamber similarly dismissed the defence argument that the accused was not aware of the prohibition and could not foresee it.46 The Chamber made many interesting pronouncements on the mistake of law argument.47 Importantly, it appears to have relied solely on the DRC ratification – the ratification of the occupied State – for the foundation of its jurisdiction. This understanding stems mainly from two facts. In its answer to the defence objection that the accused could not foresee and know of the criminal prohibition in question, the Chamber stressed only DRC’s ratification of 11 April 2002.48 No mention was made of Uganda’s ratification at any point – or Articles 64 and 65 of GC IV, for that matter. Additionally, the Chamber noted in its reply to the argument on the principle of legality that the crimes in question were sufficiently defined in the relevant provisions of the Statute ‘which entered into force on 1 July 2002’.49 Notwithstanding the general truth of this comment, as far as the respective States in question are concerned, this is true only in part. The Statute entered into force for the DRC on 1 July 2002, according to Article 126 of the ICC Statute. As far as Uganda is concerned, its 42 45 47

48 49

43 44 Ibid. Ibid., 104, para. 301. Ibid., 104, para. 302. 46 Ibid., 104, para. 303. Ibid., 105–107, paras. 305–316. A useful discussion is offered by Drumbl, ‘Prosecutor v. Thomas Lubanga Dyilo’, above n. 33, 845–847; Weigend, ‘Intent, Mistake of Law and Co-perpetration in the Lubanga Decision’, above n. 33, 474–476. Lubanga Confirmation of Charges Decision, above n. 1, 105, para. 307. Ibid., 104, para. 302.

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ratification took place on 14 June 2002 and therefore the Statute entered into force on 1 September 2002.50 This was the reason that rendered necessary Uganda’s Declaration of Temporal Jurisdiction under Article 12(3) ICC Statute of 27 February 2004, extending the jurisdiction of the Court to 1 July 2002. This emphasis on the DRC’s ratification is in stark contrast with the Court’s attitude towards the substantive crimes, where the Court made reference to both the DRC’s and Uganda’s ratification of the Geneva Conventions and Additional Protocol I.51 Finally, it is worth noting that Uganda never objected to the jurisdiction of the Court.52 It would appear therefore that the foundation of the Court’s jurisdiction up until and including the confirmation of charges proceedings was the ratification of the Statute by the occupied State Party, the DRC, rather than the Occupying Power, Uganda. In any event, even if jurisdiction were disputed, the result for the accused would probably not differ, at least as far as the Court’s jurisdiction under Article 12(2)(a) was concerned. Both States were parties to the Statute at the critical time of the commission of the crimes charged (1 September 2002 onwards) and the accused was always a DRC national. It is perhaps for this reason that the defence did not insist on the applicability of Articles 64 and 65 GC IV and elected not to reiterate the corresponding arguments in its application for leave to appeal the Confirmation Decision.53 The findings of the Lubanga Confirmation Decision on the nature of the conflict were largely endorsed in the subsequent Katanga and Ngundjolo Confirmation Decision.54 The Chamber ruled that the conflict was international in character,55 without any clarification as to the foundation of its jurisdiction due to the occupation. The issue was not raised by any of the parties, particularly in light of the fact that the critical date for those 50 51 52

53

54 55

Ochoa-Sanchez, ‘The ICC’s Pre-Trial Chamber I Confirmation of Charges Decision in the Case of Prosecutor v. Thomas Lubanga Dyilo’, above n. 33, n. 50. Lubanga Confirmation of Charges, above n. 1, 106, para. 309. Uganda’s tacit approval could potentially be considered as ‘subsequent agreement between the Parties’ (here: DRC and Uganda) for the purposes of the interpretation of Rome Statute, Art. 12(2)(a), under VCLT, Art. A1(3)(b). Le Procureur c. Thomas Lubanga Dyilo (Version publique expurg´ee de la requˆete de la D´efense en autorisation d’interjeter appel de la D´ecision de la Chambre Pr´eliminaire I du 29 janvier 2007 sur la confirmation des charges en conformit´e avec les d´ecisions de la Chambre Pr´eliminaire du 7 et 16 f´evrier 2007) ICC-01/04–01/06–836 (22 F´evrier 2007). Prosecutor v. Germain Katanga and Mathieu Ngundjolo Chui Decision on Confirmation of Charge, above n. 30. Ibid., 73, para. 240.

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cases was well after ratification and entry into force of the Statute for either State (February 2003). It is interesting that the division of the two periods in the Confirmation Decision was ultimately reversed in the merits of the Lubanga Case. The Trial Chamber indicated that there were two concurrent armed conflicts at that territory at the time: an international one, between the DRC and Rwanda, and a non-international one, between the Patriotic forces for the Liberation of the Congo/Union of Congolese Patriots (FPLC/UPC) and the other warring factions.56 It thus re-characterized the conflict for the purposes of the charges as wholly non-international and convicted the accused accordingly.57 In conclusion, the Court’s early jurisprudence indicates that the critical legal concern in situations of occupation is the ratification of the Statute and the jurisdiction of the occupied state (the DRC), rather than that of the occupant (Uganda). This conclusion, however, should be moderated in light of the fact that the Court did not discuss the issue in the context of a challenge to its jurisdiction. Admittedly, even if its jurisdiction were challenged, the outcome would probably not be different, since both States were and remain parties to the Statute. It is in light of these tentative conclusions that the following issues of occupation will be addressed.

7.5 The application of Article 12(2)(a) in State Party territories occupied by a State not Party Another interesting question arises in cases of occupation of the territory of a State Party by a State not Party. In this situation, does the Court have jurisdiction under Article 12(2)(a) when nationals of the State not Party commit crimes on the occupied territory? From the perspective of international law, the main applicable norm is that occupation does not entail loss of sovereignty over the occupied territory.58 Consequently, the occupied State formally retains prescriptive territorial jurisdiction over the occupied territory, since jurisdiction is a manifestation of sovereignty.59 In the theory of international humanitarian law, a related question concerns the temporal application of laws adopted by the displaced sovereign 56 57 58 59

Prosecutor v. Thomas Lubanga Dyilo (Judgment pursuant to Article 74 of the Statute) ICC-01/04–01/06–2842 (14 March 2012), paras. 562–565. Ibid., paras. 565–567, 1357–1358. See above Sections 3.2 and 7.3, above nn. 17–22 and text. Stuyt, The General Principles of Law, above n. 21, at 253.

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in the exercise of its prescriptive jurisdiction over the occupied territory. Evidently, this question involves many considerations under national and international law. For present purposes, the matter is addressed from the perspective of the division of jurisdictional competence between the occupying and the occupied States under humanitarian law. The issue is whether the adoption of the Rome Statute by the occupied State Party will be legally applicable in the occupied territories with immediate effect – i.e. during the occupation – or only after liberation. The risk is that, if such immediate application is allowed during the occupation, it may trigger a ‘war of laws’ in the occupied territory between the authorities of the Occupying Power and the occupied State.60 The issue is not settled in international humanitarian law. Greenwood denies this possibility, because in his view, while the displaced sovereign retains sovereignty during the occupation, he cannot exercise that sovereignty for the duration of the occupation.61 On the other hand, McNair and Watts accept that the occupied authority may legislate with immediate effect for the occupied territory, under two conditions: first, if the new legislation in question is intended to extend within the occupied territory and secondly ‘if the new law falls within the category of that large portion of national law which persists during the occupation and which the enemy occupant cannot lawfully change or annul.’62 Talmon accepts that the State’s government in exile is competent to exercise legislative authority in the occupied territory provided that it meets one condition: namely, that this does not conflict with the occupant’s right to exercise authority over the occupied territory under humanitarian law.63 The critical yardstick for Talmon is interference with the occupant’s right, regardless of whether the occupant has already used such right – or not.64 The Court’s answer to this question has been more implied than explicit; it has certainly not involved any in-depth analysis or discussion of treaty law, humanitarian law or the different scholarly positions on the

60

61 62

63 64

Talmon, Recognition of Governments in International Law, above n. 20, 222. The question of suspension of the Rome Statute under treaty law due to the fact of occupation is a different, but related issue. See above n. 39 and text. C. Greenwood, ‘The Administration of Occupied Territory in International Law’, in C. Greenwood, Essays on War in International Law (London: Cameron May, 2006), 361–362. A. McNair and A. Watts, The Legal Effects of War (4th edn, Cambridge University Press, 1966), 446. The conclusion is ‘notwithstanding the absence of any power to make it [the new law] effective during the occupation’. Talmon, Recognition of Governments in International Law, above n. 20, 219–220. Ibid., 222.

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matter. That said, the practice of the Court so far in the cases connected to the occupation of Ituri does not indicate that the fact of occupation before, during and after the ratification of the Statute by the DRC has had any legal effect to the Court’s jurisdiction.65 As indicated above, in the Lubanga Case the Chambers were troubled more by the nature of the armed conflict; jurisdiction was not disputed or challenged in any way.66 Thus, the Court has accepted without debate or objection the immediate application of the Rome Statute in Ituri, following its ratification and entry into force as regards the DRC – the displaced sovereign at the time.67 It would seem therefore that the ratification of the Statute by the occupied State’s authorities would validly give rise to the territorial jurisdiction of the ICC with immediate effect. Accordingly, it appears undisputed that the Court has territorial jurisdiction for crimes committed in Northern Cyprus at least since the ratification of the Statute, as the Republic of Cyprus maintains sovereignty over the entire island.68 The problems in cases such as Cyprus seem to relate more to issues other than territorial jurisdiction. Jurisdiction ratione temporis or ratione materiae would also need to be established.69 Moreover, the factual 65

66 68

69

The DRC ratified the Rome Statute on 11 April 2002. The occupation of Ituri, according to the ICJ in the Armed Activities Case, above n. 28, 230–231, paras. 175–9, commenced approximately on June 1999. The end of the occupation was estimated on 2 June 2003 in the Lubanga Confirmation of Charges Decision, above n. 1, para. 220. Therefore the area in question was under foreign occupation before, during and after the DRC ratification. 67 See above nn. 54–56 and text. See above nn. 48–49 and text. Schabas, The International Criminal Court: A Commentary, above n. 14, 285. Further, UNSC Res. 353, UN Doc. S/RES/353 (20 July 1974); UNSC Res. 541, UN Doc. S/RES/541 (18 November 1983); UNSC Res. 550, UN Doc. S/RES/550 (11 May 1984); K. Chrysostomides, The Republic of Cyprus: A Study in International Law (The Hague: Martinus Nijhoff, 2000), 148–153, 155–157. In detail, Cyprus v. Turkey (App. No. 25781/94) ECHR Grand Chamber, 10 May 2001, paras. 13–14; and Demopoulos et al. v. Turkey (App. No. 46113–99) ECHR Grand Chamber, 1 March 2010 (Admissibility Decision) para. 96. J. Dugard, Recognition and the United Nations (Cambridge: Grotius Publications, 1987), 110; Autocephalous Greek-Orthodox Church of Cyprus and Republic of Cyprus v. Goldberg et al., 917 F.2d 278, 293 (7th Circ., 24 October 1990); Tomko v. Republic of Cyprus per the Department of Population Register and Immigration of the Ministry of Interior, Case No. 709/2006 (Judgment) 20 June 2007 (Supreme Court of Cyprus), reported in Oxford Reports on International Law, ILDC 834 (CY 2007) (Rapporteur: A. Constantinides) and comments of the Rapporteur, para. A3. See Art. 11 of the Rome Statute. Further, L.N. Sadat, The International Criminal Court and the Transformation of International Law: Justice for the New Millennium (New York: Transnational, 2002), 186; H. Ol`asolo et al., ‘The International Criminal Court’s Ad Hoc Jurisdiction Revisited’, American Journal of International Law, 99 (2005), 421, 431, suggest that difficulties ratione temporis may be overcome by means of an Art. 12(3) Declaration. From a ratione materiae perspective, Art. 8(2)(b)(viii) would be interesting. See, Report

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implementation of such jurisdictional assertions might prove very difficult in practice. Without the cooperation of the occupant, the Prosecutor would be practically unable to collect and process important evidence for meeting the Statute’s probative thresholds. In the same spirit, in the absence of effective cooperation or Security Council support, any arrest warrants issued might actually function only as a travel ban for the suspects to certain jurisdictions.70 Finally, beyond the clear case of Cyprus, in other situations additional complications probably arise from recognition. This is particularly evident following the recognition of South Ossetia and Abkhazia by states other than Russia.71 To conclude, from the Court’s scant practice so far it appears that the Court has jurisdiction under Article 12(2)(a) ICC Statute for crimes committed on the occupied territory of States Parties. In practice, however, the difficulties that this factual situation may pose to the investigation and ultimately successful application of the Rome Statute may discourage the Prosecutor from actively pursuing such cases until after liberation. Should the Prosecutor open an investigation during an occupation of State Party territory, in practice it may prove to be more significant in terms of deterrence, instead of actual application.

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of the Committee on Migration, Refugees and Demography, Report on the Demographic Structure of Cyprus, Doc. 6589, Rapporteur: A. Cuco (the ‘Cuco Report’) (27 April 1992), 35. In detail, Y. Ronen, ‘Status of Settlers Implanted by Illegal Territorial Regimes’, British Yearbook of International Law, 79 (2008), 194, 219. Further, V. Koufoudakis, ‘European Human Rights Law and Turkey’s Violations in the Occupied Areas of Cyprus’, in A. Konstantinides and N. Zaikos (eds.), The Diversity of International Law: Essays in Honour of Kalliopi K. Koufa (Leiden: Martinus Nijhoff, 2009), 316–317. Even in that case, it is questionable whether the Security Council referral will lead to an arrest. For the Sudanese President Al-Bashir, Prosecutor v. Omar Hassan Ahmad Al-Bashir (Decision Pursuant to Article 87(7) of the Rome Statute on the Failure by the Republic of Malawi to Comply with the Cooperation Requests Issued by the Court with Respect to the Arrest and Surrender of Omar Hassan Ahmad Al-Bashir) ICC-02/05–01/09–139 (12 December 2011). The situation is complicated in light of South Ossetia’s and Abkhazia’s recognition as states by Russia, Nicaragua, Venezuela and Nauru. L. Harding, ‘Tiny Nauru Struts World Stage by Recognising Breakaway Republics’, Guardian (14 December 2009), available at: www.guardian.co.uk/world/2009/dec/14/nauro-recognises-abkhazia-south-ossetia (last visited 25 February 2013). For Georgia’s argument that Russia is an Occupying Power in parts of the conflict area and Russia’s denial, see above n. 4. For a discussion on whether the occupation affects under the law of treaties the international obligations of the occupied State (here, termination/suspension of Georgia’s ICC membership due to occupation), see N. Burke, ‘A Change in Perspective: Looking at Occupation through the Lens of the Law of Treaties’, New York University Journal of International Law and Politics, 41 (2008–2009), 103, 114–116.

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7.6 The application of Article 12(2)(a) in the territory of a State not Party occupied by a State Party This section examines the legal arguments concerning the application of the ICC Statute under Article 12(2)(a), when a State Party, due to belligerent occupation, exercises effective control over the territory of another State, not party to the Rome Statute. Issues similar to those concerning the spatial dimension of the application of human rights treaties will be considered.72 This includes primarily the possibility of interpreting ‘territory’ in Article 12(2)(a) Rome Statute as ‘effective control’ in light of the Statute’s text, context, purpose and object, as well as Article 21(3). The issue has not been examined by the Court. Moreover, the Prosecutor’s Letter concerning the situation in Iraq did not offer any indication on the legal parameters used to decide that the Court did not have territorial jurisdiction.73 In addressing this question, it is therefore important to assess, first, whether such interpretation is desirable, and secondly whether it is legally possible.

7.6.1 ‘[W]ithin the territory’ meaning ‘under their control’ in Article 12(2)(a) Rome Statute? The effect of Article 21(3) Rome Statute; The policy argument In order to disperse any suspicions that this examination is merely of academic value, it is perhaps useful to visualize two scenarios relating to the 2004 occupation of Iraq. The first is the situation where UK armed forces committed war crimes against Iraqi nationals interned in UKadministered prisons. The second is where Iraqi nationals commited war crimes against UK nationals in Iraq during the occupation. Evidently, 72

73

For a discussion in the literature and case-law for human rights treaties, see recently the Georgia v. Russia Case, above n. 4, para. 216; Wall Advisory Opinion, above n. 18, paras. 108–109 for the ICCPR, para. 112 for the ICESCR. C.L. Rozakis, ‘Jurisdiction of States and its Limits in the Strasbourg Case-Law’, in A. Yotopoulos-Marangopoulos, ´ Actuel des Droits de L’Homme Dans le Monde, D´efis et Perspectives (Paris: Pedone, L’Etat 2006), 167–186; M. Gondek, ‘Extraterritorial Application of the European Convention on Human Rights: Territorial Focus in the Age of Globalization?’, Netherlands International Law Review, 52 (2005), 347, 349–387; F. Coomans and M. Kamminga, Extraterritorial Application of Human Rights Treaties (Antwerp: Intersentia, 2004); T. Meron, ‘Applicability of Multilateral Conventions to Occupied Territories’, American Journal of International Law, 72 (1978), 542, 544–550, as regards Israel and the application of International Labour Organization (ILO) conventions in occupied territories. Above nn. 9–10 and text.

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ICC jurisdiction under nationality (Article 12(2)(b) ICC Statute) would be available for addressing the criminal conduct of the UK officer.74 However, the criminal conduct of a State not Party national would escape the Court’s reach absent a Security Council referral, since the Statute does not endorse in Article 12(2) passive personality jurisdiction (jurisdiction on the basis of the nationality of the victim). In these situations, accepting that a broad interpretation of Article 12(2)(a) may include territories under State Party control, but not sovereignty, would allow the exercise of the Court’s jurisdiction over States not Party nationals. In effect, it would add an international court in the list of fora competent to try such violations of the laws of war during occupation.75 Therefore, in the Iraq example, through this interpretation third-party nationals could be presumably charged and brought before the ICC for trial if they committed crimes in territories under UK (or Spanish, Polish, etc.) control.76 Whether this solution would be advisable or legally acceptable is naturally open to question and not amenable to categorical answers. It depends on a number of legal and political parameters that may differ in each situation. For present purposes, it is possible that there is an argument to be made in favour of a ‘human rights’ interpretation of Article 12(2)(a) in that direction, in spite of the evident political risks and the significant financial and operational burdens involved for the Court. These policy arguments would rely heavily on the general advocacy of the ICC movement, as well as the need to ensure a fair trial in secure circumstances for the accused. In this sense, the ICC, as an independent international judicial mechanism, could arguably provide much greater guarantees of transparency and impartiality than either the local courts or the occupation military courts, which might be heavily influenced by the armed

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Indeed, this was the hypothetical jurisdictional basis contemplated by the Prosecutor in the Iraq letter, Letter of the Office of the Prosecutor, above n. 9, 3. This list would include also the military courts of the occupant, as well as third-States Parties to the Geneva Conventions, under Art. 146(2) (aut dedere aut judicare). Further, T. Ferraro, ‘Enforcement of Occupation in Domestic Courts: Issues and Opportunities’, Israel Law Review, 41 (2008), 336, 354–355. On the issue of UK effective control in Iraq and the complaints within the jurisdiction of the ECtHR, see Saddam Hussein v. Albania et al. (App. No. 23276/04) ECHR 14 March 2006 (Admissibility Decision) (dismissed due to lack of establishment of jurisdictional link); Al-Saadoon and Mufdhi v. UK (App. No. 61498/08) ECHR 30 June 2009 (Admissibility Decision), paras. 84–89 (jurisdiction over a prison the UK operated in Iraq).

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conflict in their decision-making process.77 Furthermore, a standing judicial criminal institution would also offer greater guarantees of a fair trial than a ‘Special’ or ‘Exceptional’ Tribunal established specifically for the trial (and conviction) of certain individuals.78 Finally, as ICC decisions would be perceived to be free from the taint of victor’s justice or retribution, their potential to contribute to the maintenance of order in the occupied area and the protection of the rights of individuals charged with war crimes should not be underestimated.79 This suggestion finds support from the judicial reconstruction attempted by the occupying powers during the occupation of Iraq. Instead of referring cases to the ICC or creating a hybrid tribunal, as advocated by NGOs and academics,80 the Coalition Provisional Authority (CPA) created a Special Tribunal for the trial of important crimes committed prior to and including 1 May 2003, the Iraqi Special Tribunal (IST),81 as

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Ferraro, ‘Enforcement of Occupation in Domestic Courts’, above n. 75, 343 explains clearly the situation. For example, A.A. Allawi, The Occupation of Iraq: Winning of the War, Losing the Peace (New Haven, CT: Yale University Press, 2007), 160; I. Wexler, ‘A Comfortable SOFA: The Need for an Equitable Foreign Criminal Jurisdiction Agreement with Iraq’, Naval Law Review, 56 (2008), 76–77, discussing the dismissal of the possibility of the trial of US service members by Iraqi Courts, on grounds of lack of impartiality. M.C. Bassiouni, ‘Post-Conflict Justice in Iraq: An Appraisal of the Iraq Special Tribunal’, Cornell International Law Journal, 38 (2005), 327, 363–366, considers the creation of the IST an ‘exceptional’ tribunal and therefore in violation of Art. 14 ICCPR. Gasser, ‘Protection of the Civilian Population’, above n. 17, 305, para. 569, considers special ad hoc courts illegal under 66 Geneva Convention IV. This argument was made also for the trial of Saddam Hussein by the ICC, H.M. Spalholz, ‘Saddam Hussein and the IST on Trial: The Case for the ICC’, Buffalo Human Rights Law Review, 13 (2007), 255. Bassiouni, ‘Post-Conflict Justice in Iraq’, above n. 78, 340–345 details the discussions. E. Stover et al., ‘Bremer’s “Gordian Knot”: Transitional Justice and the US Occupation of Iraq’, in N. Roht-Arriaza and J. Mariezcurrena (eds.), Transnational Justice in the Twenty-First Century: Beyond Truth Versus Justice (Cambridge University Press, 2006), 229, 236; E.R. Higonnet, ‘Restructuring Hybrid Courts: Local Empowerment and National Criminal Justice Reform’, Arizona Journal of International and Comparative Law, 23 (2006), 347, 399–400. Further, R. Goldstone, ‘The Trial of Saddam Hussein: What Kind of Court Should Prosecute Saddam Hussein and Others for Human Rights Abuses?’, Fordham International Law Journal, 27 (2004), 1490. Coalition Provisional Authority Order No. 48, Delegation of Authority Regarding an Iraqi Special Tribunal, CPA/ORD/9 Dec 2003/48, 10 December 2003, and Annex I, The Statute of the Iraqi Special Tribunal, Article 1(b). The IST was subsequently abrogated by the Iraqi Parliament on 10 August 2005 and replaced by a similar structure with a different name, the Supreme Iraqi Criminal Court. Higonnet, ‘Restructuring Hybrid Courts’, above n. 80, 404.

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well as a Central Criminal Court of Iraq in Baghdad (CCCI).82 The CCCI was created by the CPA as a local Iraqi court, rather than a military court, in order to ‘try Iraqis accused of serious offences against Coalition forces and the provisional government’.83 The CCCI was intended to serve as a ‘model court in Iraq’,84 and as ‘a supplement to the Iraqi court system’ in order to assist in managing specific aspects of the security situation.85 For the IST, it seems unclear whether it is an international, hybrid or national court;86 the best position seems to be that it was a national court with international elements.87 The Authority apparently relied for the creation of such tribunals in necessity under humanitarian law and Security Council authorization.88 The criticisms found in the literature against these choices of the US Bush Administration are numerous and from several quarters. US commentators have criticized the CCCI for, among others, treating ‘dangerous insurgents as petty criminals’ and harbouring ‘enmity for US 82

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85 86

87 88

Coalition Provisional Authority Order No. 13 (Revised) (Amended), The Central Criminal Court of Iraq, CPA/ORD/X 2004/13, available at: www.iraqcoalition.org/regulations/ 20040422 CPAORD 13 Revised Amended.pdf (last accessed 19 February 2013). N.F. Lancaster, ‘Occupation Law, Sovereignty, and Political Transformation: Should the Hague Regulations and the Fourth Geneva Convention still be Considered Customary International Law?’, Military Law Review, 189 (2006), 87. Wexler, ‘A Comfortable SOFA’, above n. 77, 74–75; E. De Brabandere, Post-Conflict Administrations in International Law: International Territorial Administration, Transitional Authority and Foreign Occupation in Theory and Practice (Leiden: Martinus Nijhoff, 2009), 215. See further, M.J. Frank, ‘Trying Times: The Prosecution of Terrorists in the Central Criminal Court of Iraq’, Florida Journal of International Law, 18 (2006), 7–8. M.J. Kelly, ‘Iraq and the Law of Occupation: New Tests for an Old Law’, Yearbook of International Humanitarian Law, 6 (2003), 142–143. R. Wolfrum, ‘Iraq: From Belligerent Occupation to Iraqi Exercise of Sovereignty. Foreign Power versus International Community Interference’, Max Planck Yearbook of United Nations Law, 9 (2005), 29. Ibid., 31. Coalition Provisional Authority Order No. 13, preambular 1; Coalition Provisional Authority Order No. 48, preambular 1, 2, above n. 81; Kelly, ‘Iraq and the Law of Occupation’, above n. 85, 143, 152. ‘Apparently’ in the sense that, as Stahn observes, the CPA failed to ‘articulate a clear legal basis’ for the creation of both these Tribunals (CCCI and IST) under humanitarian law. C. Stahn, ‘Justice under Transitional Administration: Contours and Critique of a Paradigm’, Houston Journal of International Law, 27 (2004–2005), 340–341. For commentators who support the view that the creation of the CCCI is based on security and public order considerations under humanitarian law, M.N. Schmitt and C.H.B. Garraway, ‘Occupation Policy in Iraq and International Law’, International Peacekeeping, 9 (2005), 27, 34; B. Clarke, ‘Military Occupation and the Rule of Law: The Legal Obligations of Occupying Forces in Iraq’, International Trade and Business Law Review, 10 (2006), 133, 165–166.

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soldiers – to deny US soldiers the justice they deserve’.89 The situation is said to have been aggravated to such an extent, that ‘the United States eventually ignored CCCI orders to free acquitted insurgents’.90 From the other side of the spectrum, NGOs and international commentators were equally vociferous. As regards the establishment of the IST, the United States was accused of disregarding existing national judicial structures and occupation courts contrary to applicable humanitarian law;91 for permitting the trial of such cases by national judges and court officers who lacked ‘the capacity, experience, and independence to provide fair trials for the abuses of the past’;92 for violating the principle of legality through the retroactive application of new criminal law,93 to name but a few of the criticisms.94 Other authors acknowledged that ‘it is possible that the Bush Administration ruled out significant international intervention in the trials of Saddam Hussein and other Iraqi leaders for political reasons, out of a desire to control the justice process, in order to avoid embarrassing reminders of past American support for Saddam’s government, or as a response to local desires for Iraqi trials’.95 89

Frank, ‘Trying Times’, above n. 84, 8–9. Further, Wexler, ‘A Comfortable SOFA’, above n. 77, 76. 90 Frank, ‘Trying Times’, above n. 84. Also, Amnesty International, ‘Iraq: Memorandum on Concerns Relating to Law and Order’ (Report) (8 July 2003) MDE 14/157/ 2003 available at: www.amnesty.org/en/library/asset/MDE14/157/2003/en/968002d6d6b1--11dd-ab95-a13b602c0642/mde141572003en.pdf (last accessed 25 February 2013). Further, Stahn, ‘Justice under Transitional Administration’, above n. 88, 340. 91 ` ‘Legislation and Maintenance of Public Order and Civil Life by Occupying Powers’, Sassoli, above n. 17, 675. On further criticism on the establishment of the IST, Bassiouni, ‘PostConflict Justice in Iraq’, above n. 78, 361–364 and further, 343, n. 73. 92 Human Rights Watch, ‘Memorandum to the Iraqi Governing Council on The Statute of the Iraqi Special Tribunal’, 1–15 (December 2003). Further, Stover et al., ‘Brember’s “Gordian Knot”, above n. 80, 235–236. 93 Bassiouni, ‘Post-Conflict Justice in Iraq’, above n. 78, 372–8; Wolfrum, ‘Iraq: From Belligerent Occupation to Iraqi Exercise of Sovereignty’, above n. 86, 30–31. 94 Bassiouni identified at least eleven aspects of the IST that could be considered in violation of international criminal, humanitarian and human rights law. Bassiouni, ‘Post-Conflict Justice in Iraq’, above n. 78, 364–365. Further, J. Alvarez, ‘Trying Hussein: Between Hubris and Hegemony’, Journal of International Criminal Justice, 2 (2004), 319; D. Gersh, ‘Poor Judgment: Why the Iraqi Special Tribunal is the Wrong Mechanism for Trying Saddam Hussein on Charges of Genocide, Human Rights Abuses and Other Violation of International Law’, Georgia Journal of International and Comparative Law, 33 (2004), 273, 274; Stahn, ‘Justice under Transitional Administration’, above n. 88, 340–342, Wexler, ‘A Comfortable SOFA’, above n. 77, 80, Higonnet, ‘Restructuring Hybrid Courts’, above n. 80, 401; Stover et al., ‘Bremer’s “Gordian Knot”’, above n. 80, 237. 95 Higonnet, ‘Restructuring Hybrid Courts’, above n. 80, 399; Alvarez, ‘Trying Hussein’, above n. 94.

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The CCCI was also heavily criticized. It was said that its creation violated Article 64 of the Civilians Convention, ‘since the predicates for displacing indigenous courts and law did not exist’;96 that Order No. 13, creating the CCCI, violated the independence and impartiality of the CCCI judiciary, insofar as it provided for the appointment of judges through ‘one year contracts approved by the CPA’ and allowed for the referral of cases by the CPA.97 Finally, important sociological issues were also highlighted, such as the (non-) representation on the bench of at least the main interested groups/factions in Iraq and the vetting process of judges, in light of the de-Baathification process.98 Allocation of at least some of the high-profile cases to the ICC might assist in overcoming most of these objections.99 ICC jurisdiction could possibly defuse tensions on the ground and avert attempts to resort to court-making initiatives of doubtful effectiveness.100 Naturally, such an option would also have its own significant problems to overcome, such as the distance from the affected population101 and the difference in the sentencing standards for an accused before the ICC and national courts. The maximum penalty under Article 77 ICC Statute would be life imprisonment, whereas the capital punishment was reinstated for certain important crimes in August 2004 in the Iraqi Criminal Code.102 In those

96

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98 99

100 101

102

Lancaster, ‘Occupation Law’, above n. 83, 88; Similarly, Stahn, ‘Justice under Transitional Administration’, above n. 88, 340. See also the Condarelli ruling of the Italian Court of Cassation, In Re Condarelli, 19 ILR 1952 (5 July 1952). Stahn, ‘Justice under Transitional Administration’, above n. 88, 341. Coalition Provisional Authority Order No. 13, s. 19(1) on the creation of CCCI provided for the possibility that the CPA would refer cases to the CCCI. Frank, ‘Trying Times’, above n. 84, mentioned that ‘[i]nitially, the CCCI was obliged to hear cases initiated by US prosecutors through the auspices of the CPA Administrator, but after July 1, 2004, the CCCI was free to decline even these cases’. Wexler, ‘A Comfortable SOFA’, above n. 77, 75, n. 226. S.A. Roberts, ‘Socio-Religious Obstacles to Judicial Reconstruction in Post-Saddam Iraq’, Hofstra Law Review, 33 (2004–2005), 367, 387–390. The possibility of ICC jurisdiction over Iraq under territoriality is contemplated by Bantekas, ‘Head of State Immunity’ and Schabas The International Criminal Court, above n. 14. Wexler, ‘A Comfortable SOFA’, above n. 77, 77. Higonnet, ‘Restructuring Hybrid Courts’, above n. 80, 348–349; R. Lipscomb, ‘Restructuring the ICC Framework to Advance Transitional Justice: A Search for a Permanent Solution in Sudan’, Columbia Law Review, 106 (2006), 182, 195–196 (for Sudan); J. Dermody, ‘Beyond Good Intentions: Can Hybrid Tribunals Work After Unilateral Intervention?’, Hastings International and Comparative Law Review, 30 (2006–2007), 81. Al-Saadoon and Mufdhi v. UK, above n. 76, 5–15. For a recent example, ‘Tariq Aziz, Iraqi Ex-Minister, Sentenced to Death’ BBC News (26 October 2010), available at: www.bbc. co.uk/news/world-middle-east-11625501 (last accessed 25 February 2013).

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circumstances, it cannot be excluded that individuals would actively wish to be tried by the ICC in order to avoid capital punishment. Finally, in the front of the ICC–state relationship, Cryer has already warned that ‘[s]tates are watching closely, and over-expansive readings, as have been suggested at times, have to be very carefully avoided when interpreting the Statute. The Court scares third parties, as well as States parties, at its peril. Especially if it needs anything from them, be it co-operation or possible ratification.’103 These are just some of the evident hurdles in the Court’s path. Be that as it may, the Court could still constitute a viable alternative as an independent third party. This is particularly important when the national judicial system of the occupied state is in disarray and considering some of the alternatives, such as trials through ostensibly national courts established by the occupant.104 From the point of view of the accused – State not Party national – trial by the ICC would entail access to a highlevel international judicial mechanism on an equal footing with nationals of States Parties and trial in a safe environment. In this sense, the accused would enjoy a benefit, i.e. a reliable criminal trial with full human rights protection under constant international scrutiny. In light of the alternatives and the security challenges in question, this solution might be preferable for all involved (the occupant, the suspect and the occupied State).105

7.6.2 ‘[W]ithin the territory’ meaning ‘under their control’ in Article 12(2)(a) Rome Statute? The effect of Article 21(3) Rome Statute; The legal argument 7.6.2.1 An example From the point of view of international law, extending ICC territorial jurisdiction under Article 12(2)(a) to territories under State Party 103

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R. Cryer, ‘The International Criminal Court and its Relationship to Non-Party States’, in C. Stahn and G. Sluiter (eds.), The Emerging Practice of the International Criminal Court (Leiden: Martinus Nijhoff, 2009), 121. As Dermody mentions, ‘Beyond Good Intentions’, above n. 101, 88–89, a popular criticism at the time of the Iraq occupation was that ‘[a]ny tribunal established on behalf of the Coalition Provisional Authority will not be able to rid itself of the perception and fact that it is an instrument of American power’. Dermody, above n. 101 mentions that the IST itself was the target of many attacks, resulting to casualties.

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control – rather than sovereignty – is a difficult proposition. The complications are many, particularly in the light of the relatively fluid division of authority between the occupant and the occupied State in conditions of occupation under humanitarian and general international law.106 To visualize the predicament, in the occupation of Iraq the question was raised in the chambers of the CPA whether it was possible to detain, prosecute and try Iraqi nationals outside Iraq. This discussion was said to be stimulated by ‘concerns over the protection or security of a detainee’, in light of the killing of two CPA civilians in March 2004 and the plans to capture Saddam Hussein.107 The question was addressed from a number of perspectives. First, Article 49 GC IV does not allow transfer of protected persons from the occupied territory to the territory of the Occupying Power. In fact, Article 147 thereof qualifies unlawful deportation, transfer or unlawful confinement of protected persons as a grave breach.108 Secondly, Article 64 GC IV provides for maintaining in force local criminal law, as well as for the continuing operation of local courts in conditions of occupation. Thirdly, Article 66 GC IV, which allows for the creation of military courts by the occupant in the occupied territory, explicitly requires that ‘said courts sit in the occupied territory’. The Pictet Commentary on this provision adds that this obligation is ‘in accordance with the principle of the territoriality of penal jurisdiction’ and constitutes ‘a safeguard of the utmost value’ for the protected persons in question.109 Last, but not least, the CPA had to consider the strict prohibition of extradition of Iraqi nationals contained in the Iraqi Criminal Procedure Code, a prohibition which remained in effect under CPA Memorandum No. 3.110 While the CPA in the end opted for a localized solution (the referral of cases to the CCCI and the IST),111 these are concerns that would arguably

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110 111

See above Section 7.2. Kelly, ‘Iraq and the Law of Occupation’, above n. 85, 147. On the customary law nature of this prohibition, Wolfrum, ‘Iraq: From Belligerent Occupation to Iraqi Exercise of Sovereignty’, above n. 86, 502. Further, D. Scheffer, ‘Beyond Occupation Law’, American Journal of International Law, 97 (2003), 842, 857. ‘International Committee of the Red Cross Commentary’, in J.M. Henckaerts and L. Doswald-Beck (eds.), Customary International Humanitarian Law (Cambridge University Press, 2005), vol. I, 340–1. The discussion is analysed by Kelly, ‘Iraq and the Law of Occupation’, above n. 85, 148. Ibid.

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play a significant role in the interpretation of Article 12(2)(a) ICC Statute, in the light of Article 21(1)(b) and (c). These arguments can be rebutted, however. It could be argued, for example, that Article 49 GC IV does not apply in the criminal context, particularly in light of the fact that Article 66 of the Convention does envisage the possibility that appellate courts might sit outside the occupied territory.112 In any event, in order to overcome allegations of potential violations of the GC IV or national law from the transfer of a person to The Hague, the Court could avail itself of the possibility to ‘sit’ in the occupied territory, under Article 3(3) ICC Statute, with the consent of the states involved.113 Arguably, potential solutions could also involve amendments to the national laws in force in the occupied territories in accordance with Articles 43 HagReg and 64 GC IV (‘necessity’, ‘application of the Conventions’). Such amendments would criminalize the commission of grave breaches, if such legislation does not exist in the occupied territory, and allow extradition of nationals accused of war crimes.114 Additionally, as under Article 66 GC IV military courts can be established to try security violations and war crimes against the occupants’ forces, the State Party – Occupying Power – has jurisdiction to try such offenders under the Convention. Since the Occupying Power has jurisdiction is such cases, delegating jurisdiction to the ICC is its own sovereign decision. This seems to be the rationale behind the ‘delegation of authority’ by the CPA to the Iraqi Governing Council, in order to establish the IST, under Order no. 48.115

7.6.2.2 The main issue From the point of view of international law, it is submitted that the key issue under Article 12(2)(a) would be whether the ICC could be considered as an alternative to the trial of such crimes by local courts, occupation courts, or new ‘special’ courts established by the occupant. For this to happen, under general law of the treaties and specifically Article 29 VCLT, the following formula is proposed. The Court shall have jurisdiction over territories of States not Parties occupied by a State Party under Article 12(2)(a) ICC Statute, 112 114

115

113 Ibid., 147. See Art. 3(3), Rome Statute. ` ‘Legislation and Maintenance of Public Order and Civil Life by Occupying Sassoli, Powers’, above n. 17, 675 explains that this constitutes a duty of the Occupying Power (legislation for trial of grave breaches). Coalition Provisional Authority Order No. 48, Delegation of Authority Regarding an Iraqi Special Tribunal, 10 December 2003, CPA/ORD/9 Dec. 2003/48.

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(a) If such intention of the Parties can be deduced from the Statute’s preparatory works. Otherwise, the general presumption of Article 29 VCLT would apply and the Court’s jurisdiction would be excluded;116 or, (b) If the concept of ‘territory’ in that provision is interpreted so as to include both sovereign territory and territory under a State’s control. The main documents of the Court do not seem to provide for clear answers to these questions. It is true, for example, that the Court has jurisdiction over the crime of settlement of the occupying State’s nationals within the occupied territory.117 However, it is also true that the inclusion of such crime is of minimum, if any, assistance to the determination of the question of jurisdiction under this provision. It refers only to the charges at hand, rather than the territorial jurisdictional foundation for such charges to be brought before the ICC. As far as the preparatory works of the Statute are concerned, as demonstrated in Chapter 3, the compromise of Article 12 was cloaked by a shroud of secrecy at the very end of the negotiations. While there is some evidence to suggest that it was discussed in the ILC and the pre-Rome Committees, no specific solutions are recorded on the precise scope of the word ‘territory’.118 Although there are a number of very credible individual accounts by participants of the general atmosphere, official preparatory works do not shed much light as regards the wording of this provision. In particular, it is not possible to find any indications that the term ‘jurisdiction’ instead of territory was proposed and rejected. It would seem therefore that the absence of preparatory works does not allow any room for decisive affirmations in this respect. As regards the interpretation of the terms ‘territory of which’, recourse to Article 21 ICC Statute and the Court’s ‘authoritative guide’ of interpretation is required. The answer therefore will depend much on the wording, the context, the purpose and spirit of the Statute, as well as Article 21(3).119 The wording of Article 12(2)(a) refers to the States Parties, in the ‘territory of which’ the ‘conduct in question’ is alleged to have occurred. The 116

117 118

In detail on the presumption, International Law Commission, ‘Third Report on the Law of Treaties’, Yearbook of the International Law Commission, 2 (1964), UN Doc. A/CN.4/167 and Add. 1–3, 13, para. 4 (by Special Rapporteur Humphrey Waldock). Further, Burke, ‘A Change in Perspective’, above n. 71, 121–122. Under Art. 8(2)(b)(viii) of the Rome Statute. 119 See in detail above Sections 3.2 and 3.3. See in detail Chapter 4.

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Rome Statute employs neither the word ‘jurisdiction’, as human rights treaties usually do,120 nor ‘in all circumstances’ as per article 1 of the Geneva Conventions121 or to ‘any territory under its jurisdiction’ as does the Torture Convention.122 Furthermore, the Rome Statute itself does not provide for a definition of the term ‘territory’, as other international treaties do.123 While jurisdiction is a more flexible concept, amenable to broader124 or stricter125 interpretations, the concept of territory is a

120

121 122

123 124

125

In detail, below. European Convention on Human Rights, 4 November 1950, 213 UNTS 221, CETS No. 5 Art. 1; American Convention on Human Rights, 22 November 1969, 1144 UNTS 123 (1970), 9 ILM 673, Art. 1(1); ICCPR, Art. 2(1). Geneva Convention IV, above n. 17, Art. 1. Further, Bankovi´c et al. v. Belgium et al. (App. No. 52207/99) ECHR 2001-XII 335, para. 75. Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, 10 December 1984, entered into force 26 June 1987, 23 ILM 1027, 1465 UNTS 85, Art. 2(1). For example Chicago Convention on International Civil Aviation, 7 December 1944, entered into force 4 April 1947, 15 UNTS 295, Art. 2. From ECtHR case-law on the point, see indicatively; Turkey’s cross-border incursions in northern Iraq (Issa et al. v. Turkey (App. No. 31821/96) ECHR 16 November 2004); Turkey’s effective control over Northern Cyprus (Loizidou v. Turkey (App. No. 15318/89) ¨ (Preliminary Objections) ECHR 23 March 1995), the surrender of Abdullah Ocalan ¨ to Turkey in Kenya (Ocalan v. Turkey (App. No. 46221/99) ECHR 12 May 2005, para. 91); the arrest of Carlos ‘the Jackal’ in Sudan (Ramirez Sanchez v. France (App. No. 28780/95) ECHR 24 June 1996, Decisions and Reports vol. 86-B, 155); the arrest in Iran by Turkish forces of foreign nationals (Pad and Others v. Turkey (App. No. 60167/00) ECHR 28 June 2007); the murder of the Greek-Cypriot Isaak by a Turkish mob in the Cyprus ‘Green Zone’ (Isaak v. Turkey (App. No. 44587/98) ECHR 24 June 2008); the maritime interdiction in international waters of a Dutch vessel (Women on Waves et al. v. Portugal (App. No. 31276/05) ECHR 3 February 2009); in a British prison operated in Iraq and the transfer of prisoners to Iraqi authorities under threat of the death penalty (Al-Saadoon and Mufdhi v. UK, above n. 76, paras. 84–89); Russia’s ‘effective authority, or at the very least . . . decisive influence’ over the separatists in the region of Transdniestria in Ilascu v. Moldova and Russia (App. No. 48787/99) ECHR 8 July 2004, ss. 320–321. For the application of Article 2(1) ICCPR, see indicatively General Comment No. 31, ‘Nature of the General Legal Obligation Imposed on States Parties to the Covenant’, 26/05/2004, CCPR/C/21/Rev.1/Add.13, para. 10 and further Sergio Euden Lopez Burgos v. Uruguay, Communication No. R.12/52 (6 June 1979), Views of 29 July 1981, 68 ILR 29, 38–39, para. 11.4; Inter-American Commission on Human Rights, Coard et al. v. United States, Case No. 10.951, Report No. 109/99 (29 September 1999), para. 37. The ECtHR has not accepted the application of the ECHR in e.g. Bankovi´c et al. v. Belgium et al., above n. 121, paras. 74–82 concerning alleged human rights violations during the NATO Kosovo bombing campaign, and in Behrami and Behrami v. France (App. No. 71412/01) and Saramati v. France, Germany and Norway (App. No. 78166/01) ECHR 2 May 2007, paras. 149–152, on alleged human rights violations committed in areas of Kosovo under the NATO Kosovo Force (KFOR) control.

7.6 state not party territory occupied by a state party 235

parameter more objectively ascertained. The ILC126 and authors127 seem to converge to the view that ‘entire territory’ for the purposes of Article 29 VCLT can be considered as ‘a comprehensive term designed to embrace all the land and appurtenant territorial waters and air space which constitute the territory of the State’,128 unless States Parties exclude clearly a certain territory from the scope of application of the treaty. Taking into account also that the present research in the Statute’s preparatory works has not revealed any suggestion or discussion aimed to replace ‘territory’ with ‘jurisdiction’, a departure from the wording of Article 12 would appear very difficult. A contextual approach would seem to lead to the same conclusion. Article 4(2) ICC Statute provides that, while the Court may exercise the totality of its functions and powers in the territory of a State Party, it can do so ‘on the territory of any other State’ only following a special agreement between the Court and that State. In the absence of such a special agreement, the Court appears to be precluded from exercising its functions and powers beyond State Party territories. Additionally, under Article 13(b), the Court’s jurisdiction is not subject to the condition of territoriality in Article 12(2)(a) only in the case of a Security Council referral. An extensive interpretation of this provision following the footsteps of the human rights bodies might give to a State referral the same legal effect to that of a Security Council Resolution under Chapter VII, at least to the extent that it dispenses with the requirement of ratification of the Statute and State consent. This would be inconsistent with the allocation of roles in the referral system under Article 13. Furthermore, under Article 18(1), the Prosecutor’s decision to investigate should be notified to all States Parties and ‘those States which, taking into account the information available, would normally exercise jurisdiction over the crimes concerned’.129 Similarly, the cooperation of 126

127

128 129

International Law Commission, ‘Report of the International Law Commission’, UN Doc. A/CN.4/173, Yearbook of the International Law Commission, 2 (1964), Draft Article 57, Commentary, 179–180, paras. 3–4. A. Aust, Modern Treaty Law and Practice (2nd edn, Cambridge University Press, 2007), 200–201; Jennings and Watts (eds.), Oppenheim’s International Law, above n. 17, 1250–1; Karagiannis, ‘Article 29’, above n. 22; Villiger, Commentary on the 1969 Vienna Convention, above n. 22, 392–393. International Law Commission, ‘Report of the International Law Commission’ (1964), above n. 126, 179, para. 3. See further the Prosecutor’s policy approach to multiple state jurisdictions over the same crime. ICC Office of the Prosecutor, Paper on Some Policy Issues Before the Office of the Prosecutor (September 2003), 5, available at: www.icc-cpi.int/NR/rdonlyres/

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third States with the Court under Part 9 is based upon the agreement of that State.130 Indeed, as Cryer notes, ‘[o]wing to the structure of the court, and the fact that non-parties have no duties to co-operate with the Court, the limitation of the jurisdiction in this manner is quite sensible’; otherwise, vesting jurisdiction in the Court without the corresponding obligation of the respective States to cooperate would likely hinder the Court’s operation.131 From a teleological point of view, the differences between the human rights treaties and the Rome Statute are far more numerous. They include, among others, the regional versus the universal character of the mechanisms at hand,132 the type of responsibility involved133 and the consequences of the respective findings.134 It would therefore appear that the systems compared are too different to allow for an unqualified transposition of such interpretation.

130 131 132

133

134

1FA7C4C6-DE5F-42B7-8B25-60AA962ED8B6/143594/030905 Policy Paper.pdf (last accessed 28 February 2013). Note however that, as Cameron noted, ICC jurisdiction requires authorization by only one of the territorial States involved. I. Cameron, ‘Jurisdiction and Admissibility Issues under the ICC Statute’, in D. McGoldrick et al. (eds.), The Permanent International Criminal Court: Legal and Policy Issues. Studies in International Law (Oxford: Hart, 2004), 65, 74. Art. 87(5)(a) of the Rome Statute. See also Article 54(2)(a) for the Prosecutor’s power to investigate ‘on the territory of a State’. Cryer, ‘The International Criminal Court’, above n. 103, 118, n. 21. For the ECHR’s ‘essentially regional vocation’, Bankovic et al., above n. 121, para. 80; Loizidou v. Turkey, above n. 124, para. 43. Further on ‘regionality’, Rozakis, ‘Jurisdiction of States’, above n. 72, 176. Commentators have taken the view, however, that in light of subsequent case-law, the ‘regionality’ argument has not been followed through by the ECtHR in subsequent case-law; Gondek, ‘Extraterritorial Application of the ECHR’, above n. 72, 377. Human rights bodies are typically concerned with the performance of State obligations under their constituent instrument. The ICC, on the other hand, deals with individual criminal responsibility. See Art. 2 ICCPR; Art. 1 ECHR; and Art. 25 (1) and (2) Rome Statute. ‘Just satisfaction’ under Art. 41 ECHR entails monetary compensation or very rarely ‘restitutio in integrum’, mostly in property disputes (e.g. Vondas and others v. Greece (App. No. 43588/06) ECHR 5 February 2009, paras. 40–50). Arts. 2(3) ICCPR and 5(4) of the First Additional Protocol thereto have been used by the Human Rights Committee for declarations of violations and recommendations of remedies. It is controversial whether the ‘views’ of the Committee are legally binding or not. H. Steiner et al., International Human Rights in Context: Law, Politics and Morals. Text and Materials (3rd edn, Oxford University Press, 2007); M.J. Dennis, ‘Non-Application of Civil and Political Rights Treaties Extraterritorially During Times of International Armed Conflict’, Israel Law Review, 40 (2007), 453, 458. The penalties envisaged in the ICC Statute, on the other hand, may entail even the life-long imprisonment of the accused, under Art. 77(1)(b) Rome Statute.

7.6 state not party territory occupied by a state party 237

The underlying rationale of human rights bodies for the extension of their authority is presumably to address State attempts to avoid their international obligations by transferring individuals out of national territory. It is trite, but true that ‘the contemporary sovereign finds scope for absolutism more easily outside his territorial realm than within it’ [emphasis in the original].135 Thus, as far as human rights mechanisms are concerned, ‘[i]n principle, the inquiry turns not on the presumed victim’s nationality or presence within a particular geographic area, but on whether, under the specific circumstances, the State observed the rights of a person subject to its authority and control’.136 It would seem therefore that it is one thing to extend an existing, legally binding treaty, in order to protect the human rights afforded to individuals by that treaty who find themselves under State Party authority beyond its national frontiers. It is quite another to extend the rights and corresponding obligations of individuals, in order to subject them to a Court procedure with which they or their state have little (if any) connection. This is legally relevant, even if, arguendo, such extension might be beneficial to their (eventual) legal treatment (fair trial rights) and would not subject them to the death penalty. Finally, under Article 21(3), the emphasis in the jurisprudence seems to lie primarily on ensuring consistency of the interpretation of the Statute and certain human rights, such as the right to a fair trial,137 rather than to expound upon the scope of the interstate territorial application of the Statute. On the other hand, it would seem that the argument for the application of Article 12(2)(a) in territories under the control of a State Party is premised mostly on an interpretation of the term ‘territory’ under Article 21(3) and the Statute’s purposes. To begin with, Article 21(3) mandates an interpretation and application of the Court’s ‘applicable law’ consistently with internationally recognized human rights. This provision has been frequently used by the Court as a window for the introduction of human rights jurisprudence – if applicable/adequate – in order to assist in the interpretation of the Statute.138 In this spirit, it could be argued that through this provision the Court could have recourse to the jurisprudence of human rights bodies on territorial jurisdiction. After all, the Appeals Chamber has already 135 136 137

J.J. Fitzpatrick, ‘Sovereignty, Territoriality and the Rule of Law’, Hastings International and Comparative Law Review, 25 (2001–2002) 303, 304. Coard et al. v. United States, above n. 124, para. 37. 138 On Article 21(3) see in detail Chapter 4. See above in detail Chapter 4.

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indicated that ‘[h]uman rights underpin the Statute; every aspect of it, including the exercise of jurisdiction by the Court’.139 The teleological element in the interpretation of human rights treaties has been particularly influential. In the same spirit, the Court might conceivably follow in the interpretation of Article 12(2)(a) ICC Statute the approach of the ICJ in the CERD (Georgia v. Russia) Case.140 In that dispute, one key factor was that articles 2 and 5 of the CERD did not contain any indication on their territorial scope of application, and the preparatory works did not provide clear guidance on the issue. The Convention’s silence was interpreted differently by each party to the dispute. Georgia suggested that, since there was no spatial limitation in Articles 2 and 5 of that Convention, they applied beyond national frontiers.141 On the other hand, Russia took the view that the wording of the obligations in Articles 2 and 5 CERD indicated a strictly territorial field of application of the Convention and that these two provisions did not bind Russia out of its territory.142 In light of the silence in Articles 2 and 5 CERD on the matter, the ICJ concluded that ‘these provisions of CERD generally appear to apply, like other provisions of instruments of that nature, to the actions of a State party when it acts beyond its territory’.143 Accordingly, the critical factor that tilted the scales in favour of the extraterritorial application of the CERD and defeated the presumption of Article 29 VCLT seems to have been ‘the nature’ of the instrument.144 Although the Rome Statute does contain a territorial indication in Article 12(2)(a) – which the CERD did not – this ruling might be used at least as an indication that the legal nature of the Rome Statute should be also considered, when deciding this issue. Furthermore, one should look at the effect of such interpretation and its service to the Court’s objective of putting ‘an end to impunity’.145 ICC territorial jurisdiction in such circumstances does not only mean that nationals of States Parties, as well as of the State not Party occupied Power,

139

140 143 145

Prosecutor v. Thomas Lubanga Dyilo (Judgment on the Appeal of Lubanga against the Decision on the Defence Challenge to the Jurisdiction of the Court pursuant to Article 19(2)(a) of the Statute of 3 October 2006) ICC-01/04–01/06 (OA 4) (14 December 2006), para. 37. 141 142 CERD Case, above n. 4. Ibid., para. 92. Ibid., para. 100. 144 Ibid., para. 109. Burke, ‘A Change in Perspective’, above n. 71, 125. Preamble of the Rome Statute. Further, Prosecutor v. Thomas Lubanga Dyilo (Decision Giving Notice to the Parties and Participants that the Legal Characterization of the Facts May be Subjected to Change in Accordance with Regulation 55(2) of the Regulations of the Court, Appeals Chamber) ICC-01/04–01/06 (8 December 2009), para. 77.

7.6 state not party territory occupied by a state party 239

would be held accountable to the same standards. At the same time, the ICC could also serve as a forum for the trial of third-party nationals, who serve in the same coalition/alliance as the occupier.146 This is deduced by the opinion of the Italian Court of Cassation in Lozano,147 which held that the forces of one State are not precluded from the criminal jurisdiction of another, when they are acting jointly in a military coalition. Moreover, the phrase ‘in the territory of which’ could be read so as to include not only territories under a State’s sovereignty, but also territories under a State’s control. This argument can be based on the Wall Advisory Opinion, where the ICJ ruled that both the International Convention on Civil and Political Rights (ICCPR) and the International Convention on Economic, Social and Cultural Rights (ICESCR) apply in the West Bank and Gaza.148 It has been suggested that ‘arguably, the best reading of the Court’s opinion is that it was based only on the view that the West Bank and Gaza were part of the “territory” of Israel, for the purposes of the application of the Covenant [on Civil and Political Rights]’.149 From that perspective, the factual control of foreign territory may be considered sufficient to render such territory a ‘territory’ of the State Party for the purposes of the application of Article 12(2)(a) ICC Statute. This argument, however, does not seem convincing in light of the Court’s emphasis in that case on jurisdiction of a State ‘outside its own territory’.150 In light of all the above, it seems doubtful that an argument on the expansive application of Article 12(2)(a), so as to include territories occupied by States Parties, would be successful at the present stage of operation of the Court.151 First, the preparatory works of the Conference do not shed light on the choice of the wording of Article 12(2)(a) and the intention behind it. In particular, there is no evidence to suggest that the terms ‘in the territory 146 147

148 149

150 151

Of course, in such cases, Art. 98 Rome Statute might effectively bar prosecution. Lozano v. Italy, Case No. 33171/2008, Appeal Judgment, reported in Oxford Reports in International Law, ILDC 1085 (IT 2008) (Court of Cassation, It.) (Rapporteur: P. Palcetti), para. 4. Wall Advisory Opinion, above n. 18, paras. 110–113. Dennis, ‘Non-Application of Civil and Political Rights Treaties Extraterritorially’, above n. 134, 123. The argument is explained in detail by Burke, ‘A Change in Perspective’, above n. 71, 119–120 and rejected at 121 as unfounded under current treaty law. Wall Advisory Opinion, above n. 18, paras. 110–113. Further, Armed Activities Case, above n. 28, para. 216. Naturally, this perspective may change following a ‘subsequent agreement’ of the Parties, explicit or implicit, under Art. 31(3)(b) VCLT.

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of which’ in that provision were ever construed by delegations as ‘within the jurisdiction of which’. Secondly, it is true that, under Article 21(3) ICC Statute, the interpretation and application of the Statute ‘must’ be in accordance with international human rights. However, the jurisprudence of human rights mechanisms is of doubtful value in this particular instance. This is because they interpret provisions of their respective human rights treaties that have significantly different wording than the Statute. Their differences, however, do not end there. They also include the different nature of the responsibility involved and considerations of ‘regionalism’ that have figured prominently in ECtHR jurisprudence. Moreover, the CERD test as such appears inapposite to the case of the ICC, as the Statute contains clear territorial indications, under Articles 4(2) and 12(2)(a), whereas Articles 2 and 5 CERD do not. However, even under the CERD test, it is highly doubtful whether the ICC Statute can be said to be an international instrument of the same ‘nature’ as that Convention,152 so as to overcome the territorial presumption of Article 29 VCLT. Thirdly, an exercise of criminal jurisdiction by the ICC without the consent of the territorial State would risk resulting in violations of international humanitarian law on the part of the State Party in question. It is unclear whether the arrest and transfer of a protected person by the occupying State to an international court sitting outside the occupied territory would be consistent with international humanitarian law. Ultimately, the issue of whether an extensive ICC territorial jurisdiction may be beneficial to the local population of the Occupied Territory is not subject to unequivocal answers. It needs to be addressed from a number of points of view, under both humanitarian and general international law.153 The answer may therefore depend extensively on the facts of each case.

152

153

Whatever the term ‘nature’ might mean. See also the International Law Commission, ‘Fragmentation of International Law’, International Law Commission Rep., UN Doc. A/CN.4/L.682, para. 15 (by M. Koskenniemi) (13 April 2006), ‘“Human rights law” aims to protect the interests of individuals and “international criminal law” gives legal expression to the “fight against impunity”. Each rule-complex or “regime” comes with its own principles, its own form of expertise and its own “ethos”, not necessarily identical to the ethos of neighbouring specialization”’. This part is reproduced verbatim in the Study Group Report on Fragmentation, UN Doc. A/CN.4/L.702 (18 July 2006), para. 10. For such parameters from the perspective of the ILO conventions, Meron, ‘Applicability of Multilateral Conventions’, above n. 72, 551.

7.7 conclusions

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In the end, it is the Court’s task to decide whether, in the specific circumstances of an occupation, its mission is served best by an expansive interpretation of ‘territory’ as ‘control’. It falls upon the Court to balance and finally decide whether to award priority to one of two values; the right to a fair trial of State not Party nationals or the sovereignty of the occupied State not Party and its sovereign decision not to become party to a multilateral treaty154 – or to otherwise accept the Court’s jurisdiction under Article 12(3).

7.7 Conclusions The purpose of this chapter was to examine the territorial parameters of the jurisdiction of the Court under Article 12(2)(a) ICC Statute in cases of military occupation. Before recapitulating briefly the main points, it is necessary to reiterate a basic caveat; there is currently no decision of the Court interpreting Article 12(2)(a) of the Rome Statute on this point. Any conclusions drawn from the present examination are therefore founded on general international law and scant traces – or even pregnant silences – in the Court’s case-law. This chapter was built on the understanding that the Rome Statute is an international treaty that does not contain a definition of the term ‘territory’. The meaning of the term therefore should be ascertained through interpretation, by recourse to the Court’s instruments of interpretation.155 Starting from Article 29 VCLT, three situations have been identified for further examination in this chapter. First, the occupation of the territory of a State Party by another State Party, secondly the occupation of the territory of State Party by a State not Party, and thirdly the occupation of the territory of a State not Party by a State Party. The following tentative conclusions may be stipulated, in light also of these caveats. Under general international law, a State that suffers belligerent occupation of a part of its territory maintains sovereignty over it. As a consequence, it formally retains on the international plane both the capacity to 154

155

Generally, on this approach, Burke, ‘A Change in Perspective’, above n. 71, 127; Meron, ‘Applicability of Multilateral Conventions’, above n. 72, 549–550 for earlier ILO practice (1986) refusing to accept the application of ILO treaties in the Occupied Palestinian Territories (OPT), on the argument that they are not Israel’s territory. See Chapter 4.

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conclude treaties and jurisdiction over that territory as manifestations of its sovereignty. Consequently, in the event that the territory of a State Party is occupied either by a State Party or a by a State not Party to the Statute, the Court has jurisdiction under Article 12(2)(a). This is corroborated by the first decisions in the Lubanga Case. The Court’s treatment of the DRC’s ratification indicates that the application of the Statute as an international treaty is not precluded, even when the territory where the crimes were committed was under foreign occupation before, during and after ratification. In the event that a State Party occupies the territory of a State not Party, Article 12(2)(a) seems to preclude the application of the Rome Statute, in the absence of a Security Council referral. Exceptions are possible, if it is proven that (a) the parties intended the Statute to apply in such circumstances, or (b) that the terms ‘territory of which’ in Article 12(2)(a) are construed as referring not only to territory under State Party sovereignty, but also to territory under State Party control. As far as the intentions of the parties are concerned, the negotiating process that led to the wording of this provision does not allow for any clear conclusions to be drawn. The interpretation of ‘territory’ in Article 12(2)(a), on the other hand, requires an assessment of a number of factors, including the wording of the provision, its context, as well as the object and purpose of the Statute and applicable humanitarian and human rights law. There is a plethora of potential social, legal and political considerations to be considered in such circumstances. In the end it is submitted that the main question for the Court would be to find the appropriate balance between, on the one side, the decision of the occupied State not to ratify the Rome Statute, and on the other the human rights of a national of a State not Party accused of the most serious crimes in occupied territories. In light of this analysis, the best option in such circumstances would be to either ensure a Security Council referral, or to elicit the consent of the authorities of the occupied State – even on an ad hoc basis under Article 12(3) Rome Statute – in order to proceed with the relevant prosecutions. Presumably, the authorities of the occupied State would be more than willing to accommodate the Court, since participating in the Statute and accepting the Court’s jurisdiction would reaffirm implicitly yet effectively their sovereignty over the occupied territory.

8 Challenges to the territorial jurisdiction of the Court

8.1 Challenges to the jurisdiction of the Court; definitions The previous chapters analysed certain aspects of the interpretation of Article 12(2)(a) of the Rome Statute. This examination would remain incomplete, however, without addressing briefly the procedural framework concerning jurisdiction in the Rome Statute and its development in the Court’s case-law.1 This examination is necessary, as the law relating to the Court’s jurisdiction has been developed through jurisprudence adopted within the

1

Decisions on challenges to the jurisdiction of the Court have so far been rendered in the following cases: Prosecutor v. Callixte Mbarushimana (Decision on the ‘Defence Challenge to the Jurisdiction of the Court’) ICC-01/04–01/10–451 (26 October 2011) (hereinafter, Mbarushimana Decision on Jurisdiction); Prosecutor v. William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang (Decision on the Confirmation of Charges pursuant to Article 61(7)(a) and (b) of the Rome Statute) ICC-01/09–01/11–373 (23 January 2012) (hereinafter, Ruto Confirmation of Charges Decision); Prosecutor v. Ruto et al. (Decision on the Appeal of Mr William Samoei Ruto and Mr Joshua Arap Sang against the Decision of Pre-Trial Chamber II of 23 January 2012 Entitled ‘Decision on the Confirmation of Charges pursuant to Article 61(7)(a) and (b) of the Rome Statute’) ICC-01/09–01/11–414 (OA 3 OA 4) (24 May 2012) (hereinafter, Ruto Jurisdictional Appeal Decision); Prosecutor v. Francis Kirimi Muthaura et al. (Decision on the Confirmation of Charges pursuant to Article 61(7)(a) and (b) of the Rome Statute) ICC-01/09–02/11–382-Red (26 January 2012) (hereinafter, Muthaura Confirmation of Charges Decision); Prosecutor v. Muthaura et al. (Decision on the Appeal of Mr Francis Kirimi Muthaura and Mr Uhuru Muigai Kenyatta against the Decision of Pre-Trial Chamber II of 23 January 2012 Entitled ‘Decision on the Confirmation of Charges pursuant to Article 61(7)(a) and (b) of the Rome Statute’) ICC-01/09–02/11–425 (OA 4) (24 May 2012) (hereinafter, the Muthaura Jurisdictional Appeal Decision); Prosecutor v. Laurent Koudou Gbagbo (Decision on the ‘Corrigendum of the Challenge to the Jurisdiction of the International Criminal Court on the Basis of Articles 12(3), 19(2), 21(3), 55 and 59 of the Rome Statute Filed by the Defence for President Gbagbo’) (ICC-02/11–01/11–129) ICC-02/11–01/11–212 (15 August 2012) (hereinafter, Gbagbo Decision on Jurisdiction); Prosecutor v. Laurent Koudou Gbagbo (Judgment on the Appeal of Mr Laurent Koudou Gbagbo against the Decision of Pre-Trial Chamber I on Jurisdiction and Stay of Proceedings) ICC-02/11–01/11 (OA 2) (12 December 2012) (hereinafter, Gbagbo Jurisdictional Appeal Decision).

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context of a specific procedural system. A certain degree of interconnection and interaction of the relevant norms is therefore inevitable. This is neither novel nor peculiar to the ICC system and its jurisdiction. Scholars have long debated and discussed the influence of procedure on the development of substantive law in other contexts.2 It could not be any different in the ICC system. The judiciary of the ICC has been particularly mindful of the relevant procedural framework when deciding jurisdictional issues, either at their own initiative or when challenged to do so by the defence. Considerations relating to procedural efficiency, expediency and fairness have been influential in facilitating or occasionally even stunting the development of the Court’s law on jurisdiction. For example, in the Gbagbo Case, the Court accepted the submissions presented by the Republic of Coˆ te d’Ivoire concerning the defence challenge to the Court’s jurisdiction.3 On appeal, the Appeals Chamber ruled that the Pre-Trial Chamber had committed a mistake of procedure.4 As ˆ d’Ivoire had no autoa matter of procedural law, the Republic of Cote matic right of participation in such proceedings; it should have sought the Court’ prior leave, while the defence and the Prosecutor should have been provided with the opportunity to respond.5 That said, the submissions of the Republic of Coˆ te d’Ivoire on the merits of the challenge were accepted as the error was not considered to be ‘material’.6 On the other hand, in the Mbarushimana Case, the judges were asked to decide the issue of locus delicti commissi in cases of remote participation via a defence reply to a Prosecutor’s response.7 The judges refused to entertain the argument for procedural reasons and therefore the question was left open and is still pending to date.8 Of course, these are just some examples of the impact of procedural rules on the development of the Court’s law on jurisdiction. They are

2

3 4 5 7 8

M. Cappeletti and B.G. Garth, ‘Introduction: Policies, Trends and Ideas in Civil Procedure’, in M. Cappeletti et al. (eds.), International Encyclopedia of Comparative Law (T¨ubingen: Mohr and The Hague: Martinus Nijhoff, 1987), vol. XVI, 14–15 et seq. From ICJ case-law, recently, Jurisdictional Immunities of the State (Germany v. Italy, Greece Intervening) [2012] ICJ Rep. 1, paras. 58, 93 and Section 4.4. et seq in detail. Gbagbo Decision on Jurisdiction, above n. 1, paras. 22–26. Gbagbo Jurisdictional Appeal Decision, above n. 1, paras. 43–44. In detail, below notes 193–195 and text. 6 Ibid. Ibid., and above n. 3. Mbarushimana Decision on Jurisdiction, above n. 1, paras. 59–60. Ibid. In detail, see below n. 141–143 and text.

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nonetheless important for demonstrating the significance of understanding – at least in part – the context within which the Court has made its first decisions on jurisdiction. Before we turn to these matters, however, it is first necessary to explain the meaning of the relevant terms, as developed in the Court’s case-law. For the purposes of the present work, a challenge to the jurisdiction of the Court is understood as the legal instrument, by virtue of which one of the parties stated in Article 19(2) of the Rome Statute challenges the authority of the Court to decide upon a case. Specifically, such challenges question whether a case falls within the territorial, temporal, subject matter or personal parameters of the Court’s authority. The Court has so far shown keen interest in the proper classification of an objection as a ‘challenge to the jurisdiction of the Court’, no doubt due to the special procedural position reserved for such challenges in the Statute, as will be elaborated later on.9 Thus, a challenge to jurisdiction should be distinguished from a number of other related yet different concepts under the Rome Statute. For one, Prosecutor’s questions under Article 19(3) Rome Statute are not challenges to jurisdiction, but resemble requests for an advisory opinion.10 These requests may also concern situations, and need not be limited to cases.11 For another, appeals on jurisdiction are not challenges to jurisdiction. Appeals are regulated specifically under Article 82(1)(a) and relate to the correction of an alleged material error of law, fact or procedure committed by the first-instance chamber in deciding a jurisdictional issue.12 An objection alleging mistreatment of the accused while in national custody and prior to his/her surrender to the Court does not qualify as a ‘challenge to jurisdiction’. The Appeals Chamber has considered it as a ‘sui generis application, an atypical motion’ for stay of proceedings due to abuse of process.13 9 10 11

12 13

Muthaura Confirmation of Charges Decision, above n. 1, para. 29. In detail, see below, Section 8.4.3. Art. 19(3) Rome Statute. C. K. Hall, ‘Article 19’, in O. Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court: Observers’ Notes, Article by Article (2nd edn, Munich: C.H. Beck-Hart-Nomos, 2008), 653. Gbagbo Jurisdictional Appeal Decision, above n. 1, para. 36. In detail, below under Section 8.4.3. Prosecutor v. Thomas Lubanga Dyilo (Judgment on the Appeal of Mr Thomas Lubanga Dyilo against the Decision on the Defence Challenge to the Jurisdiction of the Court pursuant to Article 19(2)(a) of the Statute of 3 October 2006) ICC-01/04–01/06 (OA

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Controversially, the Appeals Chamber has decided in the Kenyan Cases that an objection to the interpretation of a contextual element of crimes against humanity does not qualify as a jurisdictional challenge, but rather a matter to be decided on the merits of the case.14 The Chamber said that the main issue before it was ‘whether, in the context of this case, the interpretation and existence of an organisational policy are matters relating to subject-matter jurisdiction and are therefore appropriately before the Appeals Chamber pursuant to Article 19(6) and 82(1)(a) of the Rome Statute’.15 The Appeals Chamber decided that these were not jurisdictional questions, but rather issues to be treated on the merits, and as a result, rejected the appeal.16 In support of its conclusion, the Appeals Chamber invoked Articles 61(6) and 61(7) RS, as well as Rule 58(2) of the Rules of Procedure and Evidence (hereinafter, ‘RPE’). The Court explained that, under these provisions, the suspect has the right to challenge the interpretation of the law and the evidence of the statements produced by the Prosecutor during the confirmation hearing. Therefore, such questions are properly addressed at the confirmation of charges stage of the pre-trial process and not earlier, as part of a jurisdictional challenge. This course of action is also systematically correct, since it avoids conflating the separate processes of jurisdiction and confirmation and duplicating the proceedings.17 Moreover, the Appeals Chamber took note of the dissenting opinion of Judge Kaul in the impugned Confirmation Decision, who argued that contextual elements of crimes against humanity are both elements of crimes relating to the merits and jurisdictional in nature, since in their absence, the Court cannot exercise jurisdiction over the underlying acts.18 In response to this argument, the Chamber decided that ‘[a]s the Prosecutor has expressly alleged crimes against humanity, including the existence of an organizational policy, the Appeals Chamber finds that the Court has subject-matter jurisdiction over the crimes with which Mr Muthaura and Mr Kenyatta have been charged’.19 Thus, failure on the part of the Prosecutor to prove the existence of the contextual elements does not divest the Court of its jurisdiction, but rather means that the crime was not committed.20

14 16 19

4) (14 December 2006), para. 24. This was confirmed also in the Gbagbo Decision on Jurisdiction, above n. 1, at paras. 88–89, and the Gbagbo Jurisdictional Appeal Decision, above n. 1, para. 102. 15 Muthaura Jurisdictional Appeal Decision, above n. 1. Ibid., 14, para. 32. 17 18 Ibid., 18, para. 38. Ibid., 15–16, paras. 33–35. Ibid., 16, para. 36. 20 Ibid. Ibid.

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To buttress this line of argument, the Court also took note of the approach to such issues adopted by the ICTY, the ICTR and the Extraordinary Chambers in the Courts of Cambodia (ECCC). It cited approvingly the position that as a jurisdictional challenge ratione materiae may only be considered a challenge that disputes the existence of the crime – or its parts – or a mode of responsibility under the Rome Statute. On the contrary, any challenge concerning ‘the contours or elements of crimes or modes of liability’, involving an examination of the interpretation of law or evidentiary issues of facts, shall be considered at the merits of a case.21 The Appeals Chamber on the same day issued a decision on the appeal against the jurisdictional challenges in the other Kenyan Case of Ruto et al., with the same content.22 The Muthaura and Ruto appeals decisions on jurisdiction constitute the first decisions of the Appeals Chamber on the point. The reasoning of the Court calls for certain critical observations. To begin with, it is clear that the decision gives decisive role to the Prosecutor’s presentation of the charges. The Appeals Chamber suggests that, if the Prosecutor frames the charge as a crime provided for in Articles 5–8 of the Rome Statute, the Court would have subject-matter jurisdiction over the case. In doing so, the Appeals Chamber disregarded a valid point made by Judge Kaul in his earlier dissent; namely that it falls upon the Court to decide on its jurisdiction, to ‘satisfy itself that it has jurisdiction’ in a case before it, whereas the Prosecutor is restricted to presenting the charges.23 The decision of the Appeals Chamber as it currently stands suggests that, unless the Prosecutor charges a crime or a mode of liability not included in the Rome Statute, a case will in all likelihood fall within the ratione materiae jurisdiction of the Court. As Judge Kaul put it, such an interpretation seems to ‘render Articles 19(1), 19(2) and 19(3) of the Statute largely ineffective’.24 In this context, the Appeals Chamber’s effort to support its argument by recourse to ICTY jurisprudence seems unsuccessful. The ICTY did consider that a defence claim, alleging that a certain crime charged by the ICTY Prosecutor does not exist in customary law, qualified as a 21 22 23

24

Ibid., 17–18, paras. 37–38. Ruto Jurisdictional Appeal Decision, above n. 1, para. 25 et seq. Prosecutor v. Francis Kirimi Muthaura et al. (Decision on the Confirmation of Charges pursuant to Article 61(7)(a) and (b) of the Rome Statute) (Dissenting Opinion by Judge Hans-Peter Kaul) ICC-01/09–02/11–382-Red (26 January 2012) (hereinafter, Judge Kaul Confirmation of Charges Dissent), para. 39. Ibid.

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challenge to subject-matter jurisdiction.25 However, the ICTY’s applicable law includes not only crimes written down in its Statute, but also crimes under customary international law. This is not the case with the ICC, where its subject-matter jurisdiction is laid down in minute detail in Articles 5–8 of the Statute. There are self-evident difficulties in equating in reason and in law an objection, challenging the existence of a crime under customary law, with an objection arguing that a certain crime is not included in a treaty. The Chamber was aware of this important fact,26 rendering the analogical use of relevant ICTY case law inapposite, yet still proceeded to refer to ICTY jurisprudence in support of its argumentation. At best, it would seem that customary law is relevant in extremely limited instances, such as the crimes of ‘other inhumane acts’ in Article 7(1)(k);27 for the rest of the Statute, the value of this aspect of the reasoning of the Appeals Chamber is unclear. There are a number of other important issues raised by the Appeals Chamber decision on subject-matter jurisdiction in the Muthaura et al. Case that will be discussed in other parts of this chapter. At present, it suffices to note that it remains unclear exactly how this decision will influence the Court’s future jurisprudence on other types of challenges to jurisdiction, i.e. challenges on territorial, personal or temporal aspects. It is worth noting here that the controversy over subject-matter challenges is informed by the corresponding predicament over the classification of the nature of the contextual elements of crimes in the Rome Statute. For Judge Kaul, contextual elements of crimes are both substantive and jurisdictional in nature.28 The Appeals Chamber did not take a position on this question. Apparently, it considered that it was unnecessary to do so, in light of the decisive weight awarded to the Prosecutor’s formulation of the charges.29 Ultimately, the reasoning of this decision, which effectively acknowledges the Prosecutor’s key role in the delimitation of the Court’s subject-matter jurisdiction, may be less useful for the determination of 25

26 27

28 29

Muthaura Jurisdictional Appeal Decision, above n. 1, para. 37, quoting the text of ICTY, Prosecutor v. Milan Milutinovi´c et al. (Decision on Dragoljub Ojdani´c’s Motion Challenging Jurisdiction – Joint Criminal Enterprise) IT-99–37-AR72 (21 May 2003), para. 9. Muthaura Jurisdictional Appeal Decision, above n. 1, para. 37. Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui (Decision on the Confirmation of Charges) ICC-01/04/-01/07–717 (30 September 2008), paras. 449–451. Muthaura Confirmation of Charges Decision, above n. 1, paras. 269–271, 280. Judge Kaul Confirmation of Charges Dissent, above n. 23, para. 32. Muthaura Jurisdictional Appeal Decision, above n. 1, para. 36.

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other types of jurisdictional challenges. For example, it is clear that, if a non-continuous crime takes place by individuals below the age of eighteen at that time and the Prosecutor still charges it, irrespective of the formulation of charges by the Prosecutor, the Court would lack jurisdiction ratione personae. That said, the point requires further clarification on the specifics from the Court’s future case-law.

8.2 Challenges to the jurisdiction of the Court; the general procedural framework The main provisions of the Court’s constituent documents under Article 21(1) Rome Statute regulating the procedure for the filing of challenges to jurisdiction are laid down in Article 19 Rome Statute and Rules 58–62, 122 and 133 RPE. These provisions outline broadly the procedural framework for challenges to the jurisdiction of the Court.30 They provide for the basic rights of certain categories of States and individuals as regards challenges to jurisdiction. The actual procedure for deciding such challenges and filing responses is left to be determined by the Chamber hearing the challenge, according to Rule 58 RPE. The Rules also provide that, in the event that challenges to both jurisdiction and admissibility are raised,31 challenges to jurisdiction should be dealt with first.32 Proceedings relating to jurisdictional challenges take place in writing, absent leave of the Court to hold oral hearings.33 This seems to be the course of action anticipated by the Rules, which clearly mandate the filing of ‘written observations’ from the Prosecutor and the suspect (or

30 31

32

33

W.A. Schabas, The International Criminal Court: A Commentary on the Rome Statute (Oxford University Press, 2010), 365. J.T. Holmes, ‘Jurisdiction and Admissibility’, in R.S. Lee (ed.), The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence (Ardsley, NY: Transnational, 2001), 346. Rule 58(4) of the ICC Rules of Procedure and Evidence; J. Stigen, The Relationship between the International Criminal Court and National Jurisdictions: The Principle of Complementarity (Leiden: Martinus Nijhoff, 2008), 161. Prosecutor v. Laurent Koudou Gbagbo (Decision on the Conduct of the Proceedings Following the Defence Challenge to the Jurisdiction of the Court pursuant to Article 19 of the Rome Statute) ICC-02/11–01/11–153 (15 June 2012), para. 9; Prosecutor v. Francis Kirimi Muthaura et al. (Decision on the Schedule of the Confirmation of Charges Hearing) ICC-01/09–02/11–321 (13 September 2011), para. 17.

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accused),34 as well as ‘representations in writing’ from the victims and the referring entity.35 The main procedural guidelines as regards challenges to the jurisdiction of the Court may be classified in certain clusters of rules: rules relating to standing, the form of the challenge, the burden of proof and possible suspension of proceedings following a challenge to jurisdiction. They will now be addressed in turn.

8.2.1 Standing to file a challenge to the Court’s jurisdiction and participate in the proceedings A number of persons or entities are authorized by the Statute to raise issues of jurisdiction. First and foremost, it falls upon the Court itself to examine its jurisdiction. Under Article 19(1) Rome Statute, the Court shall satisfy itself that it has jurisdiction in any case brought before it.36 Since the Court ‘shall’ satisfy itself of its jurisdiction, the assessment of the existence of jurisdiction over a case may be performed even at the Court’s own initiative.37 In addition to the Court’s own examination of jurisdiction, the right to raise challenges is vested in the suspect or the accused, any State with 34 35

36

37

Rule 58(3) ICC RPE. Rule 59(3) ICC RPE. See further, Situation in the Republic of Kenya, Prosecutor v. William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang (Judgment on the Appeal of the Republic of Kenya against the Decision of Pre-Trial Chamber II of 30 May 2011 entitled ‘Decision on the Application by the Government of Kenya Challenging the Admissibility of the Case pursuant to Article 19(2)(b) of the Statute’) ICC-01/09–01/11–307 (OA) (30 August 2011) (hereinafter, Kenya Admissibility Appeal Decision), paras. 110–113. Hall, ‘Article 19’, above n. 11, 642. For the meaning of ‘case’, see Situation in the Democratic Republic of the Congo (Decision on the Applications for Participation in the Proceedings of VPRS 1, VPRS 2, VPRS 3, VPRS 4, VPRS 5 and VPRS 6) ICC-01/04–101-tEN-Corr. (17 January 2006), para. 65. For a critical discussion from the perspective of admissibility challenges, M.M. El Zeidy, The Principle of Complementarity in International Criminal Law: Origin, Development and Practice (Leiden: Martinus Nijhoff, 2008), 250–252. See also Rule 58(2) ICC Rules of Procedure and Evidence. Further, Stigen, The Relationship between the International Criminal Court and National Jurisdictions, above n. 32, 152; Prosecutor v. Thomas Lubanga Dyilo (Decision on the Prosecutor’s Application for a Warrant of Arrest, Art. 58) ICC-01/04–01/06–8-US-Corr. (10 February 2006), para. 19 (hereinafter, Lubanga Arrest Warrant Decision). In the Al-Bashir Case, the Pre-Trial Chamber touched proprio motu the question of jurisdiction ratione personae and the immunities of Al-Bashir as incumbent President of Sudan. Prosecutor v. Omar Hassan Ahmad Al-Bashir (Decision on the Prosecutor’s Application for a Warrant of Arrest against Omar Hassan Ahmad Al-Bashir) ICC-02/05–01/09–3 (4 March 2009), paras. 41–45.

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jurisdiction over a case, or an ‘Article 12(3) Rome Statute’ State. The right is vested in each party separately; a challenge to jurisdiction by one of them does not preclude the right of the other(s).38 On the other hand, a number of parties are not afforded standing to challenge the jurisdiction of the Court. These are the Prosecutor, the victims, the ad hoc counsel for the defence at the situation stage of the proceedings (i.e. before a case has been identified),39 as well as witnesses or persons suspected or accused of offences against the administration of justice under Article 70 Rome Statute. They do not seem to qualify as suspects or accused for the purposes of Article 19(2).40 However, even though these actors have no standing to challenge jurisdiction, nonetheless they may participate in such proceedings. The Prosecutor has the general right to participate in jurisdictional proceedings under Rule 58(3) and may further inquire on jurisdictional issues under Article 19(3) Rome Statute. Under Article 19(3) Rome Statute and Rule 59(1) and (2), in addition to the Prosecutor and the defence, the right to participate in proceedings relating to jurisdiction is recognized to the referring entity under Article 13 Rome Statute and the victims. Moreover, when it does not file the challenge itself, the State that has filed a declaration accepting the jurisdiction of the Court under Article 12(3) does not have an automatic right to participate in proceedings relating to jurisdiction.41 To do so, it must file a request for leave to participate under Rule 103(1) to the Chamber hearing the challenge.42 The Chamber must issue a separate decision on the request, after receiving the response of the Prosecutor and the defence in accordance with Rule 103(2).43 Turning to standing for filing challenges to jurisdiction, a suspect or accused has the right to challenge the Court’s jurisdiction. The term ‘suspect’ is used here to denote a person for whom a warrant of arrest or a summons to appear has been issued under Article 58 Rome Statute, in accordance with Article 19(2) Rome Statute and the practice of the 38

39 40 41 42

See mutatis mutandis for admissibility questions, Prosecutor v. Joseph Kony et al. (Decision on the Admissibility of the Case under Article 19(1) of the Statute) ICC-02/04–01/05 (10 March 2009), para. 25; further Schabas, above n. 30, 366. Situation in Darfur, Sudan (D´ecision relative aux conclusions aux fins d’exception d’incomp´etence et d’irrecevabilit´e) ICC-02/05–34 (22 Novembre 2006), 3–4. C.K. Hall, ‘Article 19’, The International Criminal Court above n. 11, 648. Gbagbo Jurisdictional Appeal Decision, above n. 1, para. 38. 43 Ibid., paras. 39, 42–43. Ibid., para. 43.

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Court.44 A person is best considered to qualify as an accused once the charges have been confirmed against her/him.45 This right is vested in the representative of the suspect or the accused, and also in the case of an in absentia confirmation hearing.46 Two categories of States are explicitly endowed with standing to challenge the jurisdiction of the Court; first, ‘[a] State which has jurisdiction over a case, on the ground that it is investigating or prosecuting the case or has investigated or prosecuted’; or, a State whose acceptance of jurisdiction is required under Article 12 Rome Statute, i.e. a State not Party to the Statute which is the territorial State, the flag State of a vessel or aircraft in the event that the crime is committed there, or the State of nationality of the accused. To date, no State challenges to jurisdiction have been filed. The first category includes States which satisfy two cumulative requirements; first, that they have jurisdiction over a case, and secondly that they are investigating or prosecuting the case – or have already done so. These can be States Parties or States not Parties, since certain efforts in the Rome Conference to limit such right only to States Parties were not successful.47 In this context, Hall suggests that this provision can be read to mean that, since the crimes within the Court’s jurisdiction may give rise to universal jurisdiction, every State in the world may conceivably fall within this category.48 In Hall’s opinion, the limitation would then be found in national law; namely, if a State had provided its own courts with jurisdiction under its domestic law over the case by adopting territoriality, nationality, universality or some other rule of jurisdiction, then that State qualifies for the purposes of Article 19(2)(a) Rome Statute 44

45

46 47

48

See, e.g., Prosecutor v. William Samoei Ruto et al. (Decision on the Prosecutor’s Application for Summons to Appear for William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang) ICC-01/09–01/11–1 (18 July 2011), para. 40; Prosecutor v. Uhuru Muigai Kenyatta et al. (Decision on the Prosecutor’s Application for Summonses to Appear for Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali) ICC-01/09– 02/11–1 (18 July 2012), para. 36. Further, J.T. Holmes, ‘The Principle of Complementarity’ in R.S. Lee (ed.), The International Criminal Court: The Making of the Rome Statute. Issues, Negotiations, Results (The Hague: Kluwer Law International, 1999), 66. Compare Arts. 61(1), 61(2), 61(9) Rome Statute; Further, C. K. Hall, ‘Article 19’, above n. 11, 647; Stigen, The Relationship between the International Criminal Cout and National Jurisdictions, above n. 32, 155. Art. 61(2) Rome Statute; Rule 126(1) ICC Rules of Procedure and Evidence; Stigen, The Relationship between the ICC and National Jurisdictions, above n. 32, 156. UN Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Official Records, vol. II, UN Doc. A/CONF.183/13 (15 June–17 July 1998), 215–220. C. K. Hall, ‘Article 19’, above n. 11, 649.

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as a ‘State which has jurisdiction over a case’. El Zeidy sought to further limit the number of States under Article 19(2)(a) Rome Statute, by advocating for a stricter interpretation of the provision. In his view, a State may be considered as ‘having jurisdiction’ for the purposes of this provision, only if it ‘meets the definition of jurisdiction within its wide sense, having regard to ratione materiae, ratione personae, ratione loci, ratione temporis requirements . . . ’.49 Thus, a State that would, e.g., exercise jurisdiction for the same conduct as an ‘ordinary’ crime under national law should be excluded from the scope of Article 19(2)(a) Rome Statute.50 The Court has not had occasion yet to examine these interesting ideas. As regards the second requirement under Article 19(2)(b), it remains to be seen whether the Court, in the context of jurisdictional challenges will apply the ‘same person/same conduct’ test used in the interpretation of ‘is being investigated or prosecuted’ under Article 17(1)(a) by the Appeals Chamber.51 The Appeals Chamber has held for admissibility challenges that ‘the State must provide the Court with evidence of a sufficient degree of specificity and probative value that demonstrates that it is indeed investigating the case. It is not sufficient merely to assert that investigations are ongoing’.52 It remains an open question whether the Court will apply the same standard in Article 19(2)(b) for jurisdictional challenges. A special category of States identified in Article 19(2)(c) Rome Statute are those States not Parties, whose national stands accused, or on the territory of which the crime has occurred. This includes also the flag State of vessels or aircrafts. It would seem that under this provision, there is no connection between the requirement of consent by a State to be party to the Statute and the right of that State to raise challenges to jurisdiction, in tandem with Article 19(2)(b) Rome Statute. It has been suggested that an individual needs to become an ‘accused’ under Article 12(2)(b), 12(3) and 19(2)(c) Rome Statute, i.e. have the charges confirmed against her/him, before the right of her/his State of nationality to challenge jurisdiction is activated.53 This seems to be grammatically correct, although a more flexible approach might be required in the spirit of Article 19(5) Rome Statute.

49 51 53

El Zeidy, The Principle of Complementarity, above n. 36, 259. Kenya Admissibility Appeal Decision, above n. 35, paras. 39–40. C.K. Hall, ‘Article 19’, above n. 11, 651.

50

Ibid., 259–260. 52 Ibid., para. 62.

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8.2.2 The form of the challenge, page and time limits The challenge, as a legal document, should meet certain threshold requirements laid down in Rule 58(1) Rome Statute, i.e. it must be in writing and contain ‘the basis for it’.54 A written challenge must also be submitted within certain time limits and be confined to the applicable word limits. Provided that these basic conditions for filing a challenge to jurisdiction are met, the Chamber hearing the challenge enjoys considerable discretion in determining the procedure under Rule 58(2) RPE. For instance, the Chamber, by means of a written or oral decision, may decide to hold a hearing, or join the objection to the confirmation of charges or the trial of a case.55 At the outset, it should be mentioned that there is no limitation to challenges to the jurisdiction of the Court on account of the trigger mechanism used under Article 13 Rome Statute. Thus, even in the event that a case arises pursuant to a Security Council referral, a challenge to jurisdiction is still possible under Article 19 Rome Statute.56 However, each entity with standing under Article 19(2) Rome Statute is only allowed one opportunity to challenge the jurisdiction of the Court, absent exceptional circumstances and the Court’s leave.57 Article 19(6) of the Statute designates different Chambers for hearing a challenge to jurisdiction, depending on the stage of the criminal process. Thus, from the issuance of the arrest warrant, up to and including the confirmation of charges hearing, challenges to jurisdiction are referred to the Pre-Trial Chamber.58 To date, all challenges to jurisdiction have been heard at first instance by the Pre-Trial Chamber. After the confirmation of charges hearing, but prior to the designation of a Trial Chamber, the challenge shall be addressed to the Presidency, which will then refer it to the newly constituted Trial Chamber. Once the Trial Chamber is constituted, the challenge shall be addressed to it. Finally, appeals against decisions on

54 55

56

57

For the importance attached to this phrase as regards the burden of proof in proceedings relating to jurisdiction, see Mbarushimana Decision on Jurisdiction, above n. 1. The Muthaura et al. Pre-Trial Chamber so decided via oral decision on the first day of the confirmation of charges hearing; Prosecutor v. Francis Kirimi Muthaura et al. (Confirmation of Charges Hearing) (Transcript) ICC-01/09–02/11-T-4-ENG ET (21 September 2011), 16, lines 4–12. J.T. Holmes, ‘Complementarity: National Courts versus the ICC’, in A. Cassese et al. (eds.), The Rome Statute of the International Criminal Court: A Commentary (Oxford University Press, 2002), 683. 58 Article 19(4) Rome Statute. Article 19(6) Rome Statute.

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challenges to jurisdiction issued by the Pre-Trial or the Trial Chamber may be raised before the Appeals Chamber under Article 82 Rome Statute.

8.2.2.1 The earliest opportunity/the identification of a case The specific time limits for filing challenges to jurisdiction are loosely defined in the Statute. In principle, such challenges should take place at any time between the identification of the case (for the accused or the suspect) or the ‘earliest opportunity’ (for States) and up till ‘the commencement of the trial’ (same limit for all participants). The Rome Statute sets different starting time limits for challenges to the jurisdiction of the Court depending on the party raising the challenge to jurisdiction. In the event of a challenge raised by the suspect or the accused, under Article 19(2)(a) Rome Statute, the requirement is that such a person has already been identified, and that a warrant of arrest or a summons to appear has already been issued against her/him. This means that a ‘case’ for the purposes of the Rome Statute must exist.59 As such, a challenge to jurisdiction filed by the ad hoc counsel for the defence in the Darfur situation prior to the issuance of an arrest warrant or a summons to appear was rejected for lack of standing.60 It is important to note here that the defence is not under an obligation to file a challenge ‘at the earliest opportunity’ in the same way as States are. Accordingly, the defence enjoys in principle the discretion to raise such challenges at any time after a warrant of arrest or a summons to appear has been issued, and up to ‘the commencement of the trial’. As regards State challenges to jurisdiction under Article 19(2)(b) and 19(2)(c) of the Statute, these ‘shall’ be filed ‘at the earliest opportunity’ according to Article 19(5) Rome Statute. The Statute and the Rules of the Court offer no guidance as to the meaning of ‘the earliest opportunity’. The preparatory works do not shed much light, either. The expression that interested States ‘shall make a challenge at the earliest opportunity’ has been repeated verbatim from its first inclusion in Article 36, para. 3bis of the 1997 Preparatory Committee Decisions onwards till the Rome 59

60

Situation in the Democratic Republic of the Congo (Decision on the Applications for Participation in the Proceedings of VPRS 1, VPRS 2, VPRS 3, VPRS 4, VPRS 5 and VPRS 6), above n. 36, para. 65. Further, Regulation 20 of the Registry’s Regulations. From the literature, R. Rastan, ‘What Is a “Case” for the Purpose of the Rome Statute?’, Criminal Law Forum, 19 (2008) 435–438 et seq. and C.J.M. Safferling et al., International Criminal Procedure (Oxford University Press, 2012), 92–93. See above n. 39.

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Conference.61 The Conference also did not decide on the consequences for violating this provision. After the Conference, during the Preparatory Commission negotiations, the delegations of France,62 Australia63 and a group of States64 made proposals for the adoption of rules relating to that provision. Certain proposals were geared towards obliging States to file such challenges as early as possible, while they also allowed the Court to dismiss clearly unfounded challenges in limine.65 They were ultimately not adopted. Apparently, it was considered that Articles 18 and 19 Rome Statute did not require States to make challenges at any specific point, other than ‘at the earliest opportunity’, and they provided for neither specific sanctions in the event of failure to do so, nor for in limine dismissal of unfounded challenges.66 The Court has interpreted this provision as regards challenges to admissibility.67 The Appeals Chamber was confronted with the question of the appropriate time within which the Republic of Kenya could raise its admissibility challenge and the possibility of filing subsequently relevant documentation in support of its challenge. The Appeals Chamber explained that the purpose of an admissibility challenge is to resolve a jurisdictional conflict between the ICC, on the one hand, and a national jurisdiction, on the other (in this case, Kenya).68 Accordingly, it held that Article 19(5) Rome Statute does not require a State to file a 61 62

63

64

65 66

67

M.C. Bassiouni (ed.), The Legislative History of the International Criminal Court (Ardsley, NY: Transnational, 2005), vol. II, 160. Preparatory Commission of the International Criminal Court, Working Group on Rules of Procedure and Evidence, Proposal Submitted by France Concerning Part 2 of the Rome Statute of the International Criminal Court, Concerning Jurisdiction, Admissibility and Applicable Law, 3rd Sess. (29 November–17 December 1999), UN Doc. PCNICC/1999/WGRPE/DP.43 (23 November 1999). Preparatory Commission of the International Criminal Court, Working Group on Rules of Procedure and Evidence, Working Group on Rules of Procedure and Evidence, Proposal Submitted by Australia Concerning Part 2 of the Rome Statute of the International Criminal Court, Concerning Jurisdiction, Admissibility and Applicable Law, 3rd Sess. (29 November–17 December 1999), UN Doc. PCNICC/1999/WGRPE/DP.44 (23 November 1999). Preparatory Commission of the International Criminal Court, Working Group on Rules of Procedure and Evidence (Part 2: Jurisdiction, Admissibility and Applicable Law, Proposal Submitted by Bolivia, Chile, Colombia, Cuba, Peru and Spain concerning Part 2, 4th Sess. (13–31 March 2000) UN Doc. PCNICC/2000/WGRPE(2)/DP.2 (20 March 2000). Ibid., proposed Rule 2, sub-rule 17 and the French proposal, above n. 62. Holmes, ‘Jurisdiction and Admissibility’, above n. 31, 345; Holmes, ‘Complementarity’, above n. 56, 684. As Holmes adds, States may have also a number of genuine reasons to wait to file the single challenge to jurisdiction allowed to them under the Statute. 68 Kenya Admissibility Appeal Decision, above n. 35. Ibid., paras. 46, 100.

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challenge to admissibility ‘just because the Court has issued a summons to appear’.69 Moreover, the Appeals Chamber maintained that ‘the “earliest opportunity”’ in Article 19(5) of the Statute refers to the earliest point in time after the conflict of jurisdictions has actually arisen. Kenya had therefore raised a premature challenge. This entailed certain procedural consequences: ‘The State cannot expect to be allowed to amend an admissibility challenge or to submit additional supporting evidence just because the State made the challenge prematurely.’70 As a result, the Appeals Chamber held that the Pre-Trial Chamber did not err in law when it refused Kenya’s proposal to file additional reports supporting its admissibility challenge.71 The problem with this decision is that, while Article 19(5) covers both challenges to jurisdiction and admissibility, the Court’s reasoning or explanation does not seem helpful for the purposes of jurisdiction – although it makes sense for admissibility. This is largely due to the fact that the reasoning behind the two types of challenges is different. Challenges to admissibility seek a decision by the Court for the resolution of the jurisdictional competition postulated by the Appeals Chamber.72 Challenges to jurisdiction, however, seek an answer to the question whether or not a certain case falls within the territorial, temporal, personal and subject-matter parameters of the Court’s authority.73 It is one thing to decide that a certain prosecution should properly take place before the ICC instead of a national court; it is quite another to rule that the ICC has no authority to deal with a case to begin with. ‘The earliest point in time after the conflict of jurisdictions has actually arisen’ seems to have no self-evident meaning for jurisdiction. For example, in the case of genocide, every state in the world could exercise universal jurisdiction prospectively from the moment of the commission of the crime. In the event that one such State is a Party to the Statute, a number of alternative explanations on the moment that the conflict emerges may be proposed. The conflict may take place at the time of the commission of the crime. At that time, the Court has general jurisdiction,74 which is however

69 73

74

70 71 72 Ibid., para. 46. Ibid., para. 100. Ibid., para. 101. See above n. 68. Prosecutor v. Thomas Lubanga Dyilo (Judgment on the Appeal of Mr. Thomas Lubanga Dyilo against the Decision on the Defence Challenge to the Jurisdiction of the Court pursuant to Article 19(2)(a) of the Statute of 3 October 2006) ICC-01/04–01/06 (OA4) (14 December 2006), para. 24. Gbagbo Jurisdictional Appeal Decision, above n. 1, paras. 81–82.

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‘dormant’,75 as it has not yet been triggered. It is a conflict on the basis of the existence, rather than the exercise of jurisdiction – a jurisdictional conflict between State prescriptive jurisdiction and the Court’s ‘general’ ‘dormant’ jurisdiction. Secondly, a ‘conflict of jurisdiction’ would arise as soon as there is a referral to the Court under Article 13 Rome Statute or authorization of proprio motu action under Article 15. There, a conflict would emerge on the basis of the exercise of jurisdiction – a conflict between state jurisdiction and the Court’ ‘situation-specific, triggered’ jurisdiction. However, none of the two scenarios above can be true, since jurisdictional challenges require a ‘case’ under Article 19 Rome Statute, not a situation. One would then expect the ‘conflict of jurisdiction’ to mean ‘conflict of enforcement jurisdiction’. Presumably, then, the conflict arises on the date that the Prosecutor requests, or even later, when a Chamber issues an arrest warrant or a summons to appear, as a manifestation of enforcement of criminal jurisdiction. However, this also seems to be precluded if one follows the Appeals Chamber’s statement that ‘the earliest opportunity’ arises after the issuance of a summons to appear.76 The overall situation becomes even more complicated, if one considers other differences between challenges to jurisdiction and admissibility, such as the grounds for raising such challenges77 and the possibility of waiving admissibility.78 Finally, in the situation in Libya, Al-Senussi was extradited from Mauritania to Libya on 5 September 2012.79 Libya filed an admissibility challenge to the case on 2 April 2013, approximately seven months after the suspect’s transfer to Libyan custody had taken place.80 Nonetheless, the Pre-Trial Chamber accepted that the admissibility challenge was not filed 75 76 77

78 79

80

H.O. Ol´asolo, The Triggering Procedure of the International Criminal Court (Leiden: Martinus Nijhoff, 2005), 26, 38–39. Kenya Admissibility Appeal Decision, above n. 35, para. 46. Grounds for admissibility, such as for example the ne bis in idem or a State’s investigation or prosecution and the ‘same person/same conduct’ test, seem to require a certain maturity of the criminal process. For the test, see Kenya Admissibility Appeal Decision, above n. 35, paras. 39–40. L.N. Sadat and S.R. Carden, ‘The New International Criminal Court: An Uneasy Revolution’, The Georgetown Law Journal, 88(3) (2000), 419–420. Prosecutor v. Saif Al-Islam Gaddafi and Abdullah Al-Senussi (Decision on Libya’s Postponement of the Execution of the Request for Arrest and Surrender of Abdullah Al-Senussi pursuant to Article 95 of the Rome Statute and Related Defence Request to Refer Libya to the UN Security Council) ICC-01/11–01/11–354 (14 June 2013), para. 30, n. 49. Ibid., para. 30.

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in violation of Article 19(5).81 Although the reasons are far from clear, the Court hinted that Libya’s challenge was filed in good time, and in any event as soon as it was in a position to demonstrate that the case was inadmissible on the basis of certain grounds.82 Moreover, the Court was aware of the previous determination of the Appeals Chamber that premature admissibility challenges filed by a state cannot be amended later on.83 Taking into account these considerations, it remains unclear what ‘the earliest opportunity’ is for the purposes of filing a State challenge to jurisdiction. The Court’s approach thus far places ‘the earliest’ somewhat late in the process. The scarce resources of the Court, the efficient administration of justice and legal certainty would arguably require the identification of an earlier moment for the purposes of State challenges to jurisdiction. That said, the Appeals Chamber decision makes at least one thing clear. Article 19(5) Rome Statute is not simply a manifestation of the principle of good faith, with no tangible procedural consequences in the case of its violation.84 On the contrary, for the Court, this provision creates an obligation for States to file their challenge within a certain period of time. Failure to do so entails procedural consequences, such as the refusal to allow for the submission of additional documents after the challenge was filed in the Kenya decision.85 Accordingly, Article 19(5) Rome Statute establishes a requirement for filing a ‘permissible challenge’.86 Its specific content for jurisdictional challenges, however, appears in need of further clarification.

8.2.2.2 The commencement of the trial Any party with standing under Article 19(2) Rome Statute is under an obligation to raise a challenge to the Court’s jurisdiction at the latest ‘prior to or at the commencement of the trial’, in accordance with Article 19(4) Rome Statute. Challenges submitted after that time, as well as a second or third challenge, may be filed exceptionally only with the leave of the Court. 81 84 85

86

82 83 Ibid., para. 32. Ibid., para. 31. Ibid. For this argument, Safferling et al., International Criminal Procedure, above n. 59, 210–211. Kenya Admissibility Appeal Decision, above n. 35, para. 101. Generally in favour, C.K. Hall, ‘Article 19’, above n. 11, 658; Schabas, The International Criminal Court, above n. 30, 368. Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui (Reasons for the Oral Decision on the Motion Challenging the Admissibility of the Case (Article 19 of the Statute)) ICC01/04–01/07 (16 June 2009), para. 49.

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The meaning of the expression ‘the commencement of the trial’ has been the object of litigation before the Court in the context of challenges to admissibility. The clear wording of Article 19(4) Rome Statute indicates that on this issue the provision applies equally to challenges to both the Court’s jurisdiction and the admissibility of a case. Therefore, the findings of the Court in this respect are considered also for challenges to jurisdiction. The first decision on point is the admissibility decision in the Katanga Case.87 The Trial Chamber considered that the ‘trial commences’ for the purposes of Article 19(4) Rome Statute when the Trial Chamber is constituted, following the confirmation of the charges against the suspect.88 The Appeals Chamber did not rule on this issue,89 while in the literature the decision was criticized as being unduly restrictive for admissibility challenges.90 One year later, in the Bemba Case, a different Trial Chamber decided that ‘the commencement of the trial’ takes place ‘when the evidence in the case is called, and counsel – by speeches, submissions, statements and questioning – address [t]he merits of the respective cases’.91 In this situation, therefore, there are two conflicting interpretations by two Trial Chambers on the meaning of ‘the commencement of the trial’ in Article 19(4) Rome Statute, and no decision on the point by the Appeals Chamber. It is hence difficult to predict which course the Court’s future jurisprudence will take. In practice, this divergence in the interpretation of the provision is arguably important, as the time between the constitution of the Trial Chamber and the conclusion of the opening statements may be six months or more.92 In these circumstances, it is not clear whether a party with standing under Article 19(2) Rome Statute may challenge the Court’s jurisdiction within that period of time. 87 88

89

90

91 92

Ibid. Ibid., paras. 49–50. D. Jacobs, ‘The Importance of Being Earnest: The Timeliness of the Challenge to Admissibility in Katanga’, Leiden Journal of International Law, 23(2) (2010), 335. Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui (Judgment on the Appeal of Mr Germain Katanga against the Oral Decision of Trial Chamber II of 12 June 2009 on the Admissibility of the Case) ICC-01/04–01/07 (OA 8) (25 September 2009), paras. 36–38. Jacobs, ‘The Importance of Being Earnest’, above n. 88, 340–342. As regards challenges to admissibility, the grounds of inadmissibility vary depending on the moment the challenge is raised under Art. 19(4) Rome Statute. Prosecutor v. Jean-Pierre Bemba Gombo (Decision on the Admissibility and Abuse of Process Challenges) ICC-01–05/01–08 (24 June 2010), para. 210. Ibid.

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In the Katanga Trial Chamber’s view, no challenge should be allowed under Article 19(4) Rome Statute without leave of the Court after the constitution of the Trial Chamber. The Katanga Chamber considered that the wording of the provision is not helpful.93 It reached this conclusion from the contextual, teleological and historical/intention of the drafters’ interpretation.94 On the other hand, the Bemba Chamber claimed to engage only in a textual interpretation of the terms, taking into account their ‘natural and normal meaning’.95 In particular, the Bemba Chamber took issue with the Katanga Chamber’s approach to a ‘three-level’ division of the Statute’s procedural framework under Article 19 Rome Statute.96 The Katanga division seemed to postulate a watertight separation between pre-trial, trial and appeal matters among the corresponding chambers, where pre-trial issues – including jurisdiction and admissibility objections – belong in principle to the Pre-Trial Chamber, absent exceptional grounds and the Court’s leave. The Bemba Chamber seems to suggest that this division does not reflect the reality of the Trial Chamber’s function under the Statute. This becomes clear when it enumerates an indicative list of pre-trial, pre-hearing preparations falling within Trial Chamber authority under the Statute.97 Accordingly, since this work undertaken prior to the examination of evidence at trial is classified as ‘preparatory’ in nature, ‘it is difficult, . . . , to describe the stage of the proceedings during which factors of this kind are considered as following – as coming after – the commencement of the trial . . . ’.98 Therefore, since such actions take place before the process for assessing the guilt or innocence of the accused begins, they occur before ‘the trial commences’ under Article 19(4) Rome Statute. The Bemba Chamber concluded that under Article 19(4) Rome Statute, the commencement of the trial takes place after the opening statements at trial have been concluded and the examination of the evidence begins. No further evaluation ensued, presumably because the wording of the provision was clear. Both judgments are equally valuable, although their perspective is vastly different. For the purposes of challenges to the jurisdiction of the Court, 93

94 95 96

Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui (Reasons for the Oral Decision on the Motion Challenging the Admissibility of the Case (Article 19 of the Statute)) ICC01/04–01/07 (16 June 2009), paras. 34–35. Ibid., paras. 36–48. Prosecutor v. Jean-Pierre Bemba Gombo (Decision on the Admissibility and Abuse of Process Challenges) ICC-01–05/01–08 (24 June 2010), para. 210. 97 98 Ibid., para. 209. Ibid., para. 210. Ibid.

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it is important to note that there is no tiered system in place concerning the claims that may be raised with the challenge, as happens with admissibility under Article 19(4) Rome Statute. This fact makes the specification of the time limit for jurisdiction very important, as the commencement of the trial would constitute a single time-limit applicable to all types of challenges to jurisdiction. Be that as it may, it would seem that the Bemba approach is more likely to find support in the Court’s future jurisprudence, particularly as regards challenges to jurisdiction. The main reason is that Article 19(6) Rome Statute provides that challenges to jurisdiction shall be brought before the Trial Chamber after the confirmation of charges. Notwithstanding the considerate contextual view of the Katanga Chamber, if the confirmation of charges was made to coincide with the commencement of the trial, then the authority of the Trial Chamber under this provision would arguably remain largely inactive, since such challenges would in principle be time-barred, absent the leave of the Court. It seems too tenuous to suggest that the reference to the Trial Chamber’s authority in Article 19(6) Rome Statute does not form part of the Court’s general procedural framework on jurisdiction and that it was included only for challenges exceptionally allowed.99 Accordingly, it appears that the Bemba approach constitutes a more appropriate interpretation of ‘the commencement of the trial’ for the purposes of challenges to the Court’s jurisdiction. The matter, however, requires a final determination by the Appeals Chamber.

8.2.2.3 Scheduling orders Within this period of time, stretching from the emergence of a case/the earliest opportunity until the commencement of the trial, once a challenge is filed the Court enjoys discretion in organizing the procedure for its adjudication under Rule 58(2) RPE. This provision applies to all challenges to jurisdiction filed before a first instance Chamber (Pre-Trial or Trial Chamber), pursuant to Rules 122(2) and 133 RPE. From a procedural perspective, it is usual that the Pre-Trial Chamber will invite the parties to file their observations for the preparation of the schedule of the confirmation of charges hearing under Rules 122(1) and (2) RPE.100 In doing so, the Chamber usually ‘orders’ or ‘requests’ 99 100

See Jacobs, ‘The Importance of Being Earnest’, above n. 88, 339, and the analysis of the preparatory works there. For example, Prosecutor v. Laurent Koudou Gbagbo (Decision Requesting Observations from the Parties on the Schedule of the Confirmation of Charges Hearing) ICC-02/11– 01/11–107 (4 May 2012); Prosecutor v. Muthaura et al. (Decision Requesting Observations

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the defence to disclose whether it intends to raise a challenge to the jurisdiction of the Court in the confirmation of charges hearing, in order to allocate time for the discussion of the challenge during the hearing.101 If the defence indicates its intention to do so, the Chamber issues a scheduling order, setting a time limit for the submission of the defence challenge to jurisdiction.102 The procedural consequence in the event that the defence fails to meet this time limit is that the Chamber shall not hear any other arguments on jurisdiction during the confirmation of charges hearing.103 Failure to meet the time limit prescribed in the scheduling order of the confirmation hearing does not seem to preclude the possibility of filing a challenge separately or having it submitted before the Trial Chamber later on under Article 19(6).

8.2.2.4 Page limits Insofar as page limits are concerned, challenges to the jurisdiction of the Court filed in accordance with Article 19(2) Rome Statute, as well as responses thereto, should not exceed 100 pages, unless the relevant Chamber orders otherwise.104 Requests by the Prosecutor under Article 19(3) Rome Statute are subject to a 50-page limit under the same conditions.105 For submissions of other participants, the 20-page limit of Regulation 37 applies,106 barring special provision in Regulation 38 or the leave of the Court. 8.2.3 Burden and standard of proof The main rules on the burden and standard of proof for jurisdiction have been developed by the Court’s jurisprudence through the interpretation of the Statute and the Rules. A significant degree of confusion persists on the subject.

101 102 103 104 105 106

on the Schedule for the Confirmation of Charges Hearing) ICC-01/09–02/11–272 (30 August 2011). Prosecutor v. Gbagbo, above n. 100, 6–7 (‘orders’); Prosecutor v. Muthaura et al., above n. 100, 6 (‘requests’). Prosecutor v. Francis Kirimi Muthaura et al. (Decision on the Schedule for the Confirmation of Charges Hearing) ICC-01/09–01/11–321 (13 September 2011), paras. 15–16. Prosecutor v. William Samoei Ruto et al. (Decision on the Schedule for the Confirmation of Charges Hearing) ICC-01/09–01/11 (25 August 2011), para. 11. Regulation 38(1)(c) of the Court’s Regulations. Regulation 38(2)(b) of the Court’s Regulations. E.g. Prosecutor v. Laurent Koudou Gbagbo (Decision on Observations Submitted by the Republic of Coˆ te d’lvoire) ICC-02/11–01/11–254 (1 October 2012), para. 2.

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As regards the burden of proof, it is clear that it is ‘the responsibility of the defence to set out the basis of its jurisdictional challenge’.107 There is no reason to depart from this rule for State challenges to jurisdiction. The Court has recently discussed the standard of proof incumbent upon the party raising the challenge. It is unclear at the moment what this standard is and whether it is useful at all. For Article 15 proceedings,108 as regards jurisdiction ratione materiae, the standard is that there is a reasonable basis to believe that the alleged crimes committed in the State in question fall within one or more categories of crimes referred to in Article 5 of the Statute. ‘Reasonable basis’ is a standard lower than ‘reasonable grounds to believe’ in Article 53 and means that ‘the Chamber must be satisfied that there exists a sensible or reasonable justification for a belief that a crime [falls] within the jurisdiction’.109 Consequently, ‘all the information provided by the Prosecutor certainly need not point towards only one conclusion’.110 For jurisdiction ratione loci and temporis the corresponding standard is whether the jurisdictional requirements specified in Articles 11 and 12(2) of the Statute are met.111 In proceedings relating to a ‘case’ under Article 19(1) the Court has a duty to ‘satisfy itself that it has jurisdiction’, irrespective of the existence or the absence of a challenge.112 Pre-Trial Chamber II has consistently interpreted these words to mean that the Court ‘must “attain the degree of certainty” that the jurisdictional parameters set out in the Statute have been met’.113 The Chamber seems to have transposed to the ICC system

107 108 109

110 111

112 113

Mbarushimana Decision on Jurisdiction, above n. 1, para. 4. These are proceedings relating to the authorization of a proprio motu request for an investigation by the Prosecutor. Situation in the Republic of Kenya (Decision pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Kenya) ICC-01/09–19 (31 March 2010) (hereinafter, Kenya Authorization Decision), paras. 34– 35. Ibid., para. 34. Ibid., para. 39. See also Situation in the Republic of Cˆote d’Ivoire (Decision pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Coˆ te d’Ivoire) ICC-02/11–14 (3 October 2011) (hereinafter, First Coˆ te d’Ivoire Authorization Decision), para. 21, and Regulation 49 of the Court’s Regulations. Lubanga Arrest Warrant Decision, above n. 37, para. 19. Prosecutor v. Jean-Pierre Bemba Gombo (Decision pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo) ICC-01/05–01/08–424 (15 June 2009), para. 24; Prosecutor v. Francis Kirimi Muthaura et al. (Decision on the Prosecutor’s Application for Summonses to Appear for Francis

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the standard used by the ICJ in assessing its own jurisdiction.114 Judge Kaul elaborated on the consequences of this standard of proof: ‘[f]irstly, the answer to the question of whether the Court has such jurisdiction is, in principle, not subject to the progressively higher evidentiary thresholds which apply at the different stages of the proceedings. Secondly, an affirmative answer to that question is a pre-condition to the Court’s consideration of the merits. Consequently, the question cannot be deferred to the merits but must be ruled upon definitively ab initio. In other words, the Court does not have limited jurisdiction when issuing a warrant of arrest or a summons to appear; slightly more jurisdiction at the confirmation of charges stage; and jurisdiction “beyond reasonable doubt” at trial, after the merits have been fully adjudged. The Court either has jurisdiction or does not.’115 To date, no other Chamber of the Court has explicitly endorsed the ‘degree of certainty’ standard for jurisdiction under Article 19(1) or Judge Kaul’s approach. Pre-Trial Chamber I in the Mbarushimana Case explicitly avoided the issue.116 The Appeals Chamber in the Kenya Jurisdiction Appeal decisions mentioned approvingly the position of the ad hoc Tribunals Appeals Chamber that ‘factual and evidentiary issues are to be considered at trial, not as part of pre-trial jurisdictional challenges’.117 In the same spirit, the Appeals Chamber highlighted that the manner in which the Prosecutor presents the charges is decisive for assessing the Court’s subject-matter jurisdiction.118 This implies that, as long as the Prosecutor charges a crime listed in Article 5 of the Rome Statute, this condition is met. If the charge is not supported by the evidence, then it

114

115 116

117 118

Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali) ICC-01/09– 02/11 (8 March 2011), para. 9; Muthaura Confirmation of Charges Decision, above n. 1, para. 23; Prosecutor v. William Samoei Ruto et al. (Decision on the Prosecutor’s Application for Summonses to Appear for William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang) ICC-01/09–01/11–01 (8 March 2011), para. 9. Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States) (Merits) [1986] ICJ Rep. 1986, paras. 28–29; El Zeidy, The Principle of Complementarity, above n. 36, 248–249. Judge Kaul Confirmation of Charges Dissent, above n. 23, para. 33. Mbarushimana Decision on Jurisdiction, above n. 1, paras. 4–5. The Chamber did not discuss the standard of proof on the basis that ‘the present challenge is based, and its determination will thus depend, much more on issues of a legal nature than on whether a given fact can or cannot be considered by the Chamber as properly established’ (para. 5). Muthaura Jurisdictional Appeal Decision, above n. 1, para. 37. For Judge Kaul’s valid criticism on the point, see Judge Kaul Confirmation of Charges Dissent, above n. 23, para. 39.

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will be dismissed as unfounded; but that is a different issue to the question of jurisdiction.119 It is therefore unclear whether a standard of proof is even required at the jurisdictional stage, if facts are to be considered exclusively in the merits stage of a case, the trial proper.120 It remains to be seen whether the Appeals Chamber’s ruling will be moderated in some way or applied fully to questions of fact arising in the context of jurisdictional challenges with respect to time, persons or territory. Be that as it may, on a final note, in proceedings where no suspect is yet present, the finding on jurisdiction is made solely on the basis of ex parte, Prosecutor-only evidence. As such, it constitutes only an ‘initial determination’ on jurisdiction; it is without prejudice to subsequent findings on the issue and the right of the parties indicated in Article 19(2) RS to raise a challenge.121

8.2.4 Suspension of investigation The Rome Statute contains a number of different provisions in Article 19, paras. 7–11 RS, which indicate, among others, that the filing of a challenge by a State shall have the effect of suspending the Prosecutor’s investigation. While the suspension lasts, the Prosecutor may nonetheless request authorization to perform certain acts. If the case is considered to be inadmissible, the Prosecutor may request information on the national proceedings or decide to ask for a review of the decision of inadmissibility in light of new facts. Finally, under Article 19 (9) of the Statute, raising a challenge by any party does not affect the validity of acts performed by the Prosecutor, or orders or warrants issued before the challenge was filed. With the exception of Article 19(9) Rome Statute, which seems to apply irrespective of the nature of the challenge, Article 19, paras. 7–11 Rome Statute seem to relate exclusively to challenges to admissibility. However, there are certain doubts in the literature and the case-law concerning the application of Article 19, paras. 7–8 Rome Statute in the event

119 120 121

Muthaura Jurisdictional Appeal Decision, above n. 1, para. 36. See also on the point Judge Kaul’s earlier criticism, above n. 23. Muthaura Jurisdictional Appeal Decision, above note 1, paras. 36–38. See above Chapter 8.1. Lubanga Arrest Warrant Decision, above n. 37, para. 20.

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of challenges to jurisdiction. The issue here is whether a challenge to jurisdiction by a State effectively suspends the investigation of the Prosecutor and activates the authorization regime of Article 19(8) Rome Statute.122 There is authority for the view that Article 19(7) Rome Statute and the provisions attached to it apply to challenges to jurisdiction. Schabas posits that refusing to accept the application of Article 19(7) Rome Statute in challenges to jurisdiction is an ‘illogical result’.123 Safferling accepts that the case is suspended irrespective of the nature of the challenge, but can ‘only be continued, if the Court declares the case admissible under Art. 17 ICCSt’.124 Other authors leave the matter ambiguous, without clarifying the challenges over which the provision applies.125 As regards the preparatory works, Holmes indicates that, during the Rome Conference ‘some delegations feared that States and individuals would use challenges to delay and block investigations initiated by the Prosecutor, and that pending the final decision on admissibility or [sic] jurisdiction, valuable evidence would be lost’.126 Draft Article 54(3) of the Preparatory Committee’s Report to the Rome Conference has also been cited as authority for the view that challenges to jurisdiction would suspend the Prosecutor’s investigation.127 Finally, in the Muthaura et al. Case, the Single Judge mentioned that the Prosecutor should suspend investigations in a case, ‘according to Article 19(7) of the Statute, if a challenge to the admissibility of a case or to the jurisdiction of the Court is made by a State . . . ’.128 The value of this dictum for present purposes is questionable, since that case dealt only with an admissibility challenge filed by Kenya. 122

123 124 125

126 127 128

M.H. Arsanjani, ‘Reflections on the Jurisdiction and Trigger Mechanism of the International Criminal Court’, in H.A.M. von Hebel et al. (eds.), Reflections on the International Criminal Court: Essays in Honour of Adriaan Bos (The Hague: T.M.C. Asser, 1999), 75. Schabas, The International Criminal Court, above n. 30, 369. Safferling et al., International Criminal Procedure, above n. 59, 213. H. Friman, ‘Procedural Law of the International Criminal Court: An Introduction’, in F. Lattanzi and W.A. Schabas (eds.), Essays on the Rome Statute of the International Criminal Court (Ripa Fagnano Alto: Sirente, 2000–2004), vol. II, 206; J. Wouters et al., ‘The International Criminal Court’s Office of the Prosecutor’, in J. Doria et al. (eds.), The Legal Regime of the International Criminal Court: Essays in Honour of Professor Igor Blishchenko (Leiden: Martinus Nijhoff, 2009), 377. Holmes, ‘The Principle of Complementarity’, above n. 44, 68. Stigen, The Relationship between the International Criminal Court and National Jurisdictions, above n. 32, 169. Prosecutor v. Francis Kirimi Muthaura et al. (Decision on the ‘Prosecution’s Application Requesting Disclosure after a Final Resolution of the Government of Kenya’s Admissibility Challenge’ and Establishing a Calendar for Disclosure Between the Parties) ICC01/09–02/11–64 (20 April 2011), para. 18.

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On the other hand, there is authority for the view that the suspension applies only when a State files a challenge to admissibility.129 This seems to be the better view. It is supported by the letter of the provision, whereby the suspension is made dependent upon a finding of whether the case is admissible under Article 17 Rome Statute. After all, it is clear that the two types of challenges have two different objectives and are to be treated separately under Rule 58(4) RPE. In this respect, it appears illogical to suggest that when a State challenges the jurisdiction of the Court the Prosecutor’s investigation will be suspended until the Court decides on admissibility; since it is not asked to do so, a State could conceivably stop the Prosecutor’s investigation simply by filing a challenge to jurisdiction, within the context of which the Court would need to proprio motu examine the admissibility of the case or halt the case until a challenge to admissibility is filed and properly disposed of.130 The position that challenges to jurisdiction do not fall within the scope of these paragraphs is further supported by the reasoning underlying the adoption of Article 19(7) RS. As the Katanga and Libya Pre-Trial Chambers both confirmed, the suspension of the Prosecutor’s investigation is a consequence of complementarity, intended to avoid parallel and competing proceedings.131 The States Parties thus did not seem to intend suspension of proceedings where no State was interested in the prosecution of a crime.132 In any event, the reformulation of Draft Article 54 in Article 19(7) of the Statute would suggest that the drafters rejected the previous approach, where challenges to both jurisdiction and admissibility led to the suspension of investigations. To conclude, no case-law on point is currently available. That said, it should be clarified that, even if suspension is granted also for challenges to jurisdiction, the suspension possibility exists only for State challenges, not challenges filed by the suspect or the accused.133 Moreover, only the investigation is suspended, not the prosecution or other judicial 129

130 131

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C.K. Hall, ‘Article 19’, above n. 11, 661; M. Bergsmo, ‘The Jurisdictional Regime of the International Criminal Court (Part II, Articles 11–19)’, European Journal of Crime, Criminal Law and Criminal Justice, 6(4) (1998), 361–362; Stigen, The Relationship between the International Criminal Court and National Jurisdictions, above n. 32, 169. C.K. Hall, ‘Article 19’, above n. 11; further, El Zeidy, The Principle of Complementarity, above n. 36, 269. Prosecutor v. Saif Al-Islam Gaddafi and Abdullah Al-Senussi, above n. 79 para. 36; Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui (Reasons for the Oral Decision on the Motion Challenging the Admissibility of the Case (Article 19 of the Statute)) ICC-01/04/01/07 (16 June 2009), para. 45. 133 C.K. Hall, ‘Article 19’, above n. 11, 661. Art. 19(7) Rome Statute.

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process.134 There is no definition of an ‘investigation’ for the purposes of the Rome Statute. It most likely extends until the end of the Confirmation of Charges hearing, since the Prosecutor should, in principle, conclude all investigation connected to a case prior to the hearing and should not, save in exceptional circumstances, pursue new investigations after that time.135 In any event, even if Article 19(7) Rome Statute applies as regards challenges to jurisdiction, the Prosecutor may always seek authorization during the period of suspension in order to pursue certain investigative steps under Article 19(8) Rome Statute.

8.3 Challenges to the jurisdiction of the Court ratione loci The first and only challenge to the Court’s territorial jurisdiction to date was filed in the Mbarushimana Case.136 The challenge sought unsuccessfully to obtain a finding that the Court lacked jurisdiction because the case did not fall within the territorial scope of the situation.137 The substance of the challenge has been discussed above.138 From its procedural aspect, Mbarushimana is noteworthy for the jurisdictional challenge that was procedurally barred. In particular, the defence sought to bring before the Court via a request for leave to reply to the Prosecutor’s submissions on jurisdiction a new argument, arising from the fact that throughout the period of the commission of the crimes, the suspect was in Paris and not in the DRC.139 The argument was apparently aimed at raising questions of locus delicti commissi and territorial jurisdiction over participants to

134

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137 139

Prosecutor v. Francis Kirimi Muthaura et al. (Decision on the ‘Prosecution’s Application Requesting Disclosure after a Final Resolution of the Government of Kenya’s Admissibility Challenge’ and Establishing a Calendar for Disclosure Between the Parties) ICC01/09–02/11–64 (20 April 2011), para. 8; further, C. K. Hall, ‘Article 19’, above n. 11, 661. Prosecutor v. Thomas Lubanga Dyilo (Judgment on the Prosecutor’s Appeal against the Decision of Pre-Trial Chamber I entitled ‘Decision Establishing General Principles Governing Application to Restrict Disclosure pursuant to Rule 81(2) and (4) of the Rules of Procedure and Evidence) ICC-01/04–01/06–568 (13 October 2006), para. 54. Prosecutor v. Callixte Mbarushimana (Decision on the Prosecutor’s Application for a Warrant of Arrest Against Callixte Mbarushimana) ICC-01/04–01/10–1 (11 October 2010), paras. 10 et seq. 138 Ibid., paras. 16 et seq. See above Section 6.3.7. Prosecutor v. Callixte Mbarushimana (Defence Request for Leave to Reply to the Prosecution’s Response to the Defence Challenge to the Jurisdiction of the Court and Defence Request to Adduce Oral Testimony) ICC-01/04–01/10–323 (1 August 2011), para. 6.

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a crime situated in another state.140 The Court ultimately rejected the request.141 It explained that leave to reply to a response under Regulation 24(5) ‘by its very nature, should be limited to addressing arguments raised in a response which the party did not have the opportunity to address in its first submission’.142 In the present case, the Court explained that the issue of Mbarushimana’s residence in Paris was not a ‘new issue’ raised by the Prosecution in its response, but rather a new argument that the defence artfully tried to have heard through a creative interpretation of the Prosecution’s brief.143 Accordingly, the Court rejected the defence request for leave to reply and the only opportunity to discuss locus delicti issues to date ended there.

8.4 Procedural stages As indicated above,144 Article 19(6) of the Rome Statute establishes a tiered system for the submission of challenges to the Court’s jurisdiction. The following part will trace the main procedural framework of the process before the Pre-Trial Chamber, including proprio motu assessments (Section 8.4.1), the Trial Chamber (Section 8.4.2) and the Appeals Chamber (Section 8.4.3), beyond the topics already dealt with in detail above.

8.4.1 Pre-Trial Chamber To date, all jurisdictional challenges have been heard at first instance by Pre-Trial Chambers.145 It is the first organ of the Court that actually has to decide on jurisdiction on its own motion as soon as there is a ‘case’ for the purposes of Article 19 RS, or even earlier, once seized by the Prosecutor’s request to authorize an investigation under Article 15 Rome Statute or an arrest warrant under Article 58 Rome Statute. The assessment of jurisdiction in these early stages constitutes only an initial determination, without prejudice to subsequent findings on the issue and the right of Parties enumerated in Article 19(2) Rome Statute to raise a challenge.146 140 141 143 146

R. Rastan, ‘The Jurisdictional Scope of Situations before the International Criminal Court’, Criminal Law Forum, 23(1) (2012), 9–13. 142 Mbarushimana Decision on Jurisdiction, above n. 1, para. 60. Ibid., para. 57. 144 145 Ibid., paras. 59–60. See above n. 50 and text. See above n. 1. For Article 15 proceedings, Article 15(4) and the First Cˆote d’Ivoire Authorization Decision, above n. 111, para. 18; For Art. 58 proceedings Lubanga Arrest Warrant Decision, above n. 37, para. 20.

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Up until the point where a ‘case’ emerges,147 the examination of jurisdiction takes place at the Court’s initiative in the context of ex parte procedures under Articles 15 and 58 Rome Statute. The earliest point for a jurisdictional assessment is the request by the Prosecutor for an authorization to open an investigation under Article 15. This has happened so ˆ d’Ivoire.149 Article far with regard to the situations in Kenya148 and Cote 15(4) RS mandates the authorization of an investigation triggered by proprio motu action of the Prosecutor, when the requested Pre-Trial Chamber finds that ‘the case appears to fall within the jurisdiction of the Court’. An Article 15 request is made in order to authorize an investigation over ‘potential cases within the situation at stake’.150 The purpose of this procedure is to prevent prosecutorial activism that would lead to unwarranted, frivolous or politically motivated investigations capable of harming the Court’s credibility.151 This is a very early stage in the proceedings. The Prosecutor is not yet investigating a situation, but requests permission to initiate such an investigation, on the basis of a ‘preliminary examination’; correspondingly, the applicable probative standard is lower.152 However, victims may make written representations in those proceedings and be notified of the eventual decision of the Court.153 In these early proceedings, challenges to jurisdiction are not possible under Article 19. A proposal submitted by France to that effect during the post-Rome negotiations for the adoption of the Rules of Procedure was not accepted.154 However, the Pre-Trial Chambers engage in a rigorous examination of jurisdiction proprio motu. In assessing jurisdiction, PreTrial Chambers follow the pattern first established in the Lubanga Case: ‘To fall within the Court’s jurisdiction, a crime must meet the following 147 149 150 151 152

153 154

148 See above n. 59. Kenya Authorization Decision, above n. 109. First Coˆ te d’Ivoire Authorization Decision, above n. 111. Kenya Authorization Decision, above n. 109, para. 64. First Coˆ te d’Ivoire Authorization Decision, above n. 111, para. 21. Ibid., para. 18. See also Situation in the Republic of Cˆote d’Ivoire (Judge Fern´andez de Gurmendi’s Separate and Partly Dissenting Opinion to the Decision pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Coˆ te d’Ivoire) ICC-02/11–15 (3 October 2011), para. 34. Article 15(3) Rome Statute, Rule 50(1), (3), (5) RPE. Proposal Submitted by France, Introduction, above n. 62. The proposal provided that ‘the Rules of Procedure and Evidence should enable States to make challenges in accordance with Article 19 in connection with the proceedings provided for in Article 15 and then those provided for in Article 18.’ J. Lindenmann, ‘The Rules of Procedure and Evidence on Jurisdiction and Admissibility’, in H. Fischer et al. (eds.), International and National Prosecution of Crimes under International Law: Current Developments (Berlin: Spitz, 2001), 177–180.

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conditions: it must be one of the crimes mentioned in Article 5 of the Statute, . . . ; the crimes must have been committed within the time period laid down in Article 11 of the Statute; and the crime must meet one of the two alternative conditions described in Article 12 of the Statute.’155 This determination on jurisdiction is a prerequisite for the issuance of an arrest warrant or a summons to appear under the Rome Statute.156 If a Chamber is not convinced on the basis of the available information that the corresponding jurisdictional threshold is met,157 it may request clarifications on the Prosecutor’s application on points relating to jurisdiction.158 Once a suspect or accused is identified, challenges to jurisdiction are possible under Article 19. The defence may raise the same or similar issue of jurisdiction considered in earlier ex parte proceedings through its jurisdictional challenge before the Pre-Trial Chamber.159 Most jurisdictional challenges filed so far seem to largely reiterate the original misgivings on jurisdiction expressed by the Chamber in its first decisions requesting clarifications on arrest warrant requests160 as well as judges’ dissenting opinions filed to Article 15 or 58 decisions, if available.161 Evidently, the chances of success of such challenges are slim, in the absence of new compelling arguments that would convince the Chamber to depart from its earlier rulings. None has been accepted so far.

155 156

157 158

159 160

161

Lubanga Arrest Warrant Decision, above n. 37, para. 24; Kenya Authorization Decision, above n. 109, para. 39. Prosecutor v. Ahmad Muhammad Harun (‘Ahmad Harun’) and Ali Muhammad al Abdal-Rahman (‘Ali Kushayb’) (Decision on the Prosecution Application under Article 58(7) of the Statute) ICC-02/05–01/07–1-Corr. (27 April 2007), para. 13. The question of the thresholds remains unclear. See above Section 8.2.3. Situation in the Republic of Kenya (Decision Requesting Clarification and Additional Information) ICC-01/09–15 (18 February 2010), paras. 12–14; Situation in the Democratic Republic of the Congo (Decision Requesting Clarification on the Prosecutor’s Application under Article 58) ICC-01/04–575 (6 September 2010), paras. 6–8; Situation in the Republic of Cˆote d’Ivoire (Decision pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Coˆ te d’Ivoire) ICC-02/11–14 (3 October 2011), para. 185. Mbarushimana Decision on Jurisdiction, above n. 1, para. 11. Prosecutor v. Callixte Mbarushimana (Defence Challenge to the Jurisdiction of the Court) ICC-01/04–01/10–290 (19 July 2011), paras. 12 et seq. (raising the same point essentially as the clarification decision, above n. 145). Prosecutor v. Francis Kirimi Muthaura et al. (Submissions on Jurisdiction on Behalf of Uhuru Kenyatta) ICC-01/09–02/11–339 (19 September 2011), paras. 12–14 et seq.; Prosecutor v. William Samoei Ruto et al. (Defence Challenge to Jurisdiction, Defence for Mr Ruto and Mr Sang) ICC-01/09–01/11–305 (30 August 2011), paras. 7–8 et seq. (relying on Judge Kaul’s earlier dissents on point).

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Considering that challenges to jurisdiction may normally be filed only once per party, in certain cases there has been a long preparatory process that strongly resembled preparation for trial. In order to receive the necessary supporting documentation for its challenge to jurisdiction from the DRC and the Prosecutor, the Mbarushimana defence filed a number of requests to the Pre-Trial Chamber, asking among other things for rulings on State cooperation,162 status conferences and declassification of documents.163 This process lasted approximately from 14 December 2010164 until 19 July 2011,165 when the defence finally submitted its challenge to jurisdiction. The Pre-Trial Chamber may decide to join the challenge to the confirmation of charges hearing or the trial process. Up to date, the challenge was joined to the confirmation of charges decisions in the Kenyan Cases;166 in Gbagbo167 and Mbarushimana168 it was treated in separate proceedings. In any event, Rule 122(2) RPE mentions that, should any questions on jurisdiction arise in the context of a Confirmation of Charges hearing, 162

163 164 165 166

167

168

Indicatively, Prosecutor v. Callixte Mbarushimana (Defence Request for an Order for State Cooperation Pursuant to Article 57(3)(b) ICC-01/04–01/10–76 (14 March 2011); Prosecutor v. Callixte Mbarushimana (Defence Request for the Compliance of the Democratic Republic of the Congo with ICC-01/04–01/10–56-Conf-Exp) ICC-01/04–01/10–123 (27 April 2011); Prosecutor v. Callixte Mbarushimana (Defence Request to Convene a Status Conference) ICC-01/04–01/10–153 (15 May 2011); Prosecutor v. Callixte Mbarushimana (Second Defence Request to Convene a Status Conference for the Purpose of Obtaining Cooperation from the Democratic Republic of the Congo) ICC-01/04–01/10–219 (7 June 2011). Prosecutor v. Callixte Mbarushimana (Defence Request for Reclassification) ICC-01/04– 01/10–284 (14 July 2011). Prosecutor v. Callixte Mbarushimana (Defence Request for Disclosure) ICC-01/04– 01/10–29 (14 December 2010). Prosecutor v. Callixte Mbarushimana (Defence Challenge to the Jurisdiction of the Court) ICC-01/04–01/10–290 (19 July 2011). Prosecutor v. Francis Kirimi Muthaura et al. (Decision on the Schedule of the Confirmation of Charges Hearing) ICC-01/09–02/11–321 (13 September 2011), paras. 15– 16; Prosecutor v. Francis Kirimi Muthaura et al. (Transcript, Confirmation of Charges Hearing) ICC-01/09–02/11-T-4-ENG ET (21 September 2011), 16, 4–12. Prosecutor v. William Samoei Ruto et al. (Decision on the Schedule for the Confirmation of Charges Hearing), above n. 103, paras. 10–11. Prosecutor v. Laurent Koudou Gbagbo (Decision on the Conduct of the Proceedings Following the Defence Challenge to the Jurisdiction of the Court pursuant to Article 19 of the Rome Statute) ICC-02/11–01/11–153 (15 June 2012). Prosecutor v. Callixte Mbarushimana (Order to the Prosecutor Requesting Observations on the ‘Defence Challenge to the Jurisdiction of the Court’) ICC-01/04–01/10–297 (20 July 2011); Prosecutor v. Callixte Mbarushimana (Decision on the Schedule of the Confirmation Hearing) ICC-01/04–01/10–356 (12 August 2011), 4–5.

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Rule 58 RPE applies and the Court enjoys discretion on the establishment of the relevant procedure. The decisions of the Pre-Trial Chamber on the challenge to jurisdiction have been issued within approximately three months from the date of the filing of the challenge.169

8.4.2 Trial Chamber To date, no challenges to jurisdiction have been heard by a Trial Chamber. Although such possibility is envisaged in Article 19(6) of the Statute, whether such challenges will be heard by the Trial Chamber as a matter of ordinary procedure or only exceptionally, with the leave of the Chamber, depends on the interpretation of ‘the commencement of the trial’ in Article 19(4) Rome Statute.170 If the Katanga interpretation prevails, such challenges will be heard only exceptionally with the leave of the Chamber, since the ultimate time limit for their filing will be the constitution of the Trial Chamber. If, on the other hand, the Bemba approach is adopted, then the Trial Chamber may well hear challenges to jurisdiction as a matter of ordinary procedure without prior leave, provided that they are raised before the examination of the evidence in the trial process. It remains to be seen which of the two approaches will ultimately become the established interpretation. In any event, Rule 133 RPE provides that the procedure for challenges to the jurisdiction of the Court before the Trial Chamber will be dealt with by the Presiding Judge and the Trial Chamber in accordance with Rule 58 RPE. The basic rule of Chamber discretion on the regulation of procedural matters therefore remains.

8.4.3 Appeals Chamber The main rules relating to appellate proceedings on jurisdiction are included in Articles 19(6) and 82 of the Rome Statute, Rules 149 and 154–158 RPE, and Regulations 57–65. From the Court’s case-law on point, there are few useful decisions as regards jurisdiction. In Mbarushimana, no appeal was filed to the decision rejecting the defence challenge to jurisdiction, whereas in Muthaura et al. and Ruto et al. both appeals to 169

170

In the Mbarushimana Case, above n. 1, 2, the defence challenge was filed on 19 July 2011 and the decision was issued on 26 October 2011; in Muthaura et al., above note 1, para. 1, the challenges were filed on 19 September 2011 and the decision was issued on 23 January 2012, whereas in Gbagbo, above n. 1, para. 9, the challenge was filed on 29 May 2012 and the decision was issued on 15 August 2012. See above Section 8.2.2.2.

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jurisdiction were rejected on the grounds that the issue sub judice was not a jurisdictional one.171 The Gbagbo appeal to jurisdiction was rejected in part as unfounded in substance and in part on the basis that the issue was not jurisdictional.172 No successful challenge or appeal to a jurisdictional decision has been filed yet. Significant parts of the law have been developed also in appeals on admissibility. Under Articles 19(6) and 82(1)(a) Rome Statute, decisions on jurisdiction of the Pre-Trial or Trial Chambers can be appealed to the Appeals Chamber. Such appeal does not require prior leave to appeal, but can be filed directly with the Appeals Chamber.173 The direct access to the Appeals Chamber and the restrictive practice on requests for leave to appeal seem to be responsible for the unsuccessful attempts to disguise appeals on other issues as appeals to jurisdiction.174 An appeal is not a challenge to jurisdiction. They are two separate, independent rights.175 Their exercise is subject to different conditions under the Court’s applicable law.176 An appeal on jurisdiction may be filed also when attacking only the chapter on jurisdiction included in a decision on confirmation of charges.177 In a case where an appellant attempted to appeal a nonjurisdictional issue together with a jurisdictional one, simply because they are included in different chapters of the same decision, the Appeals Chamber has considered the merits of the jurisdictional issue and rejected the non-jurisdictional one in limine as inadmissible.178 Similarly, the Court’s initial case law shows that an appeal under Article 82(1)(a) Rome Statute is permissible, even when it is filed against a proprio motu determination of inadmissibility in the context of a decision to

171 172 173 174

175

176

177 178

See above n. 1, Muthaura et al., paras. 26–39, Ruto et al., paras. 23–25 et seq. Gbagbo Jurisdictional Appeal Decision, above n. 1, paras. 72–92, 101–106. Muthaura Jurisdiction Appeal Decision, above n. 1, para. 28; Rule 154(2) RPE. H. Friman, ‘Interlocutory Appeals in the Early Practice of the International Criminal Court’, in C. Stahn and G. Sluiter (eds.), The Emerging Practice of the International Criminal Court (Leiden: Martinus Nijhoff, 2009), 559. Mbarushimana Decision on Jurisdiction, above n. 1, para. 11; Situation in the Democratic Republic of the Congo (Judgment on the Prosecutor’s Appeal against the Decision of PreTrial Chamber I entitled ‘Decision on the Prosecutor’s Application for Warrants of Arrest, Article 58’) ICC-01/04–169-US-Exp (13 July 2006), para. 50. Prosecutor v. William Samoei Ruto et al. (Decision on the ‘Filing of Updated Investigation Report by the Government of Kenya in the Appeal Against the Pre-Trial Chamber’s Decision on Admissibility’) ICC-01/09–01/11–234 (28 July 2011), para. 14. Muthaura Jurisdiction Appeal Decision, above n. 1, paras. 26 et seq. Gbagbo Appeal Decision on Jurisdiction, above n. 1, para. 101.

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issue an arrest warrant under Article 58 Rome Statute.179 This case law suggests the possibility that appeals may be filed also against decisions on jurisdiction made by the Court at its own initiative, i.e. absent a challenge to jurisdiction. It is not clear whether a determination of jurisdiction under Article 15(4) Rome Statute may be subject to appeal by the Prosecutor under Article 82(1)(a) Rome Statute. The views expressed in the negotiations on the Rules were mixed and inconclusive.180 The plain meaning of Article 82(1)(a) Rome Statute does not seem to exclude this possibility, since it refers to ‘a decision with respect to jurisdiction’. The issue is debatable.181 As regards standing to file an appeal, the Court has held that in cases involving multiple defendants, each defendant has a separate right to appeal jurisdiction.182 The decision on jurisdiction can be appealed by each one of them, especially when the first-instance decision rules that the case as a whole falls within the jurisdiction of the Court.183 Authorities have debated in the past whether the sentence ‘either party’ in Article 82 effectively excludes appeals by States named in Article 19(2)(b) Rome Statute or whether States are allowed to file such appeals under Article 19(6) Rome Statute.184 The case-law on admissibility indicates that States filing a challenge under Article 19(2) Rome Statute have the corresponding right to appeal a decision of the Pre-Trial or Trial Chamber on the point on the basis of Article 19(6) Rome Statute.185 179

180

181

182 183 184

185

Situation in the Democratic Republic of the Congo (Judgment on the Prosecutor’s Appeal against the Decision of Pre-Trial Chamber I entitled ‘Decision on the Prosecutor’s Application for Warrants of Arrest, Article 58’), above n. 175, para. 33. H. Brady and M. Jennings, ‘Appeal and Revision’, in R.S. Lee (ed.), The International Criminal Court: The Making of the Rome Statute. Issues, Negotiations, Results (The Hague: Kluwer Law International, 1999), 579. C. Staker, ‘Article 82’, in O. Triffterer (ed.), Commentary on the Rome Statute, above n. 11, 1477, suggests that any decision on jurisdiction made under part 2 of the Statute is appealable under Article 82(1)(a). This includes Article 15(4). The author offers no reasons. Muthaura Jurisdiction Appeal Decision, above n. 1, paras. 24–26. Ibid., para. 27. A. Hartwig, ‘Appeal and Revision’, in C.J.M. Safferling et al., (eds.), International Criminal Procedure (Oxford University Press, 2012), 543; Staker, ‘Article 82’, above n. 181, 1476– 1477; Brady and Jennings, ‘Appeal and Revision’, above n. 180, 593–596; R. Roth and M. Henzelin, ‘The Appeal Procedure of the ICC’, in A. Cassese et al. (eds.), The Rome Statute of the International Criminal Court: A Commentary (Oxford University Press, 2002), 1550–1551. Prosecutor v. William Samoei Ruto et al. (Decision on the ‘Filing of Updated Investigation Report by the Government of Kenya in the Appeal against the Pre-Trial Chamber’s Decision on Admissibility’), above n. 176, para. 14, n. 39.

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Finally, the best view is that victims do not have standing to appeal a decision on jurisdiction.186 It is equally unclear whether incidental review of jurisdiction by the Appeals Chamber is possible. There are arguments in favour of this proposition premised on the application of Article 19(1) in appellate procedures,187 the Court’s comp´etence de la comp´etence and considerations of procedural economy. The Appeals Chamber of the ad hoc tribunals has followed this approach.188 However, the ICC Appeals Chamber has assumed a narrower view of its power to review in appellate proceedings, and confines itself to issues raised on appeal by the parties and aimed at correcting serious errors of the first instance Chambers.189 Thus, the Appeals Chamber views itself to date as a corrective instance.190 Accordingly, the Appeals Chamber’s review is restricted to the correction of material errors of fact, law or procedure, which ‘crystallized’ in time at the proceedings on jurisdiction before the first-instance Chambers.191 At least as regards errors of law and procedure this means that the appellant should prove that ‘the Pre-Trial or Trial Chamber would have rendered a decision that is substantially different from the decision that was affected by the error, if it had not made the error’.192 In the Gbagbo Case, the Appeals Chamber ruled that the Pre-Trial Chamber had committed an error of procedure, because it did not treat Coˆ te d’Ivoire’s submissions at the stage of the defence challenge to jurisdiction as a request for leave to submit observations under Rule 103(1) 186

187 188 189 190

191

192

Brady and Jennings, ‘Appeal and Revision’, above n. 180, 594–596; contra, Schabas, The International Criminal Court, above n. 30, 941–942, seems to confuse OPCV with the Office of Public Council for the Defence (OPCD). Muthaura Jurisdiction Appeal Decision, above n. 1, para. 28. Staker, ‘Article 82’, above n. 181, 1468 with references. Gbagbo Jurisdictional Appeal Decision, above n. 1, paras. 75–76; Schabas, The International Criminal Court, above n. 30, 954–955. Gbagbo Jurisdictional Appeal Decision, above n. 1, paras. 36, 76; Prosecutor v. William Samoei Ruto et al. (Decision on the ‘Filing of Updated Investigation Report by the Government of Kenya in the Appeal Against the Pre-Trial Chamber’s Decision on Admissibility’) ICC-01/09–01/11 OA (28 July 2011), paras. 11–13. Friman, Interlocutory Appeals, above n. 174, 554–555. Gbagbo Jurisdictional Appeal Decision, above n. 1, para. 76; Prosecutor v. William Samoei Ruto et al., above n. 190, paras. 10 et seq. Generally, for the proposition that Article 81 grounds apply also to Article 82 on appeals, Situation in the Democratic Republic of the Congo (Judgment on the Prosecutor’s Appeal against the Decision of Pre-Trial Chamber I entitled ‘Decision on the Prosecutor’s Application for Warrants of Arrest, Article 58’) ICC-01/04–169 (13 July 2006), paras. 32–35; further, Hartwig, ‘Appeal and Revision’, above n. 184, 542. Gbagbo Jurisdictional Appeal Decision, above n. 1, para. 44.

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RPE.193 It therefore ‘erred by omitting to issue a separate decision and to hear the responses of Mr Gbagbo and the Prosecutor’.194 In so doing, it exceeded its discretion under Rule 58(2).195 However, as the defence failed to prove how the decision would have been substantially different without this error, the Appeals Chamber rejected the corresponding grounds of appeal.196 In appellate proceedings on jurisdictional challenges, the general regime on the organization of procedure under Rules 58 and 59 RPE seems to remain applicable.197 In principle an appeal to jurisdiction does not have suspensive effect, unless the Appeals Chamber so orders upon request.198 The request for suspensive effect should be included in the appeal, at the time of its filing.199 The decision on this issue falls within the discretion of the Appeals Chamber and requires an examination of the specific circumstances of the case at hand.200 In deciding upon such requests, the Appeals Chamber assesses whether the implementation of the decision under appeal ‘would create an irreversible situation that could not be corrected, even if the Appeals Chamber eventually were to find in favour of the appellant’, or whether such implementation ‘could potentially defeat the purpose’ of the appeal.201 As far as the time limits for the filing of an appeal on jurisdiction are concerned, under Rule 154(1) RPE, the appeal must be filed not later than five days from the day of notification of the decision of the Pre-Trial Chamber or Trial Chamber on jurisdiction. Regulation 64 clarifies that the appellant must file, within the five-day limit, only the notice of appeal, with the minimum characteristics laid down in Regulation 64(1). Under Regulation 64(2), the appellant may file, within twenty-one days from the day of notification of the impugned decision, the document in support of the appeal, which sets out in detail the legal and factual grounds for which appeal is sought. Failure to meet the time limits entails that the decision becomes final.202 The document in support of appeal is subject

193 197 198 200

201

202

194 195 196 Ibid., para. 43. Ibid., para. 44. Ibid., para. 39. Ibid., paras. 45–46. Muthaura Jurisdictional Appeal Decision, above n. 1, para. 28. 199 Article 82(3) Rome Statute. Rule 156(5) RPE. Prosecutor v. Jean-Pierre Bemba Gombo (Decision on the Request of Mr Bemba to Give Suspensive Effect to the Appeal Against the ‘Decision on the Admissibility and Abuse of Process Challenges’) ICC-01/05–01/08–817 (OA 3) (9 July 2010), para. 6. Prosecutor v. Francis Kirimi Muthaura et al. (Decision on the Request of Mr Kenyatta and Mr Muthaura for Suspensive Effect) ICC-01/09–02/11–401 (29 February 2012), paras. 9–10. Rules 154(3), 150(4) RPE.

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to a 100-page limit under Regulation 58(5), whereas observations are subject to the 20-page limit of Regulation 37(1). Submissions exceeding the page limits have been disregarded and a new time limit has been set by the Appeals Chamber, within which the party needs to file a corrected submission.203 The appeal is filed with the Registrar.204 Once it is filed, the Registrar transmits to the Appeals Chamber the record of the first-instance proceedings and gives notice of the appeal to all parties participating in the proceedings relating to the impugned decision.205 The proceedings are in principle only in writing, although the Appeals Chamber may decide to hold a hearing.206 In order to hold a hearing, the applicant requesting the hearing needs to show cogent reasons that demonstrate ‘why an oral hearing in lieu of, or in addition to, written submissions is necessary’.207 Delays are to be avoided, as the appeal must be decided ‘as expeditiously as possible’.208 The party filing the appeal may discontinue the appeal at any moment prior to the delivery of a judgment by giving notice of discontinuance. The discontinuance cannot be subjected to conditions on the part of the appellant and does not need justification.209 The Appeals Chamber has assumed a proactive role in the organization of procedure relating to appeals to jurisdiction. Once an appeal to jurisdiction is filed, the Appeals Chamber issues ‘Directions on the submission of observations’.210 The legal basis for the authority to issue this document is

203 204 205 207 208 209

210

Prosecutor v. Laurent Koudou Gbagbo (Decision on Observations Submitted by OPCV on Behalf of Victims) ICC-02/11–01/11–256 (5 October 2012), 3–4. Rules 154(3), 150(3) RPE. 206 Rule 156, paras. 1 and 2 RPE. Rule 156(3) RPE. Prosecutor v. Francis Kirimi Muthaura et al. (Decision on the ‘Request for an Oral Hearing pursuant to Rule 156(3)’) ICC-01/09–02/11–251 (17 August 2011), para. 10. Ibid.; Rule 156(4) RPE. Rule 157 RPE; Prosecutor v. Thomas Lubanga Dyilo (Decision on Thomas Lubanga Dyilo’s Brief Relative to Discontinuance of Appeal, Appeals Chamber) ICC-01/04–01/06–176 (3 July 2006), paras. 8–9. Indicatively, Prosecutor v. William Samoei Ruto et al. (Directions on the Submission of Observations pursuant to Article 19(3) of the Rome Statute and Rule 59(3) of the Rules of Procedure and Evidence) ICC-01/09–01/11–383 (2 February 2012); Prosecutor v. Francis Kirimi Muthaura et al. (Directions on the Submission of Observations pursuant to Article 19(3) of the Rome Statute and Rule 59(3) of the Rules of Procedure and Evidence) ICC-01/09–02/11–394 (2 February 2012); Prosecutor v. Laurent Koudou Gbagbo (Directions on the Submissions of Observations) ICC-02/11–01/11–236 (31 August 2012).

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Article 19(3) Rome Statute and Rule 59(3) RPE.211 This document details the parties with standing to submit observations, and sets the time limits for such observations. Although the matter is unclear, it would seem that the legal nature of this document is ‘an order of a Chamber’, within the meaning of Regulation 28. Thus, as a general rule, if a party fails to abide by a time limit, and absent a request for an extension, the filing will be rejected in accordance with Regulation 29. The rule is subject to exceptions for situations where the delay was negligible, or the filing caused no delay in the process and no prejudice to the parties or the proceedings as a whole.212 This proactive approach has facilitated the process in certain important aspects, particularly as regards the participation of States213 and victims in appeals to jurisdiction. As regards victim participation in jurisdictional appeals, the ‘Directions’ of the Appeals Chamber have prudently simplified what promised to be an otherwise very cumbersome process. In particular, the Appeals Chamber seems to have largely dispensed with the ‘personal interest’214 examination of victims in the context of appellate proceedings relating to first-instance decisions issued over jurisdictional challenges. Instead, the principal rule is that ‘victims who made observations according to Article 19(3) of the Statute and Rule 59(3) of the Rules of Procedure and Evidence in the proceedings before the Pre-Trial or Trial Chamber may submit observations before the Appeals Chamber’.215 Participation

211

212

213

214 215

Prosecutor v. William Samoei Ruto et al. (Directions on the Submission of Observations pursuant to Article 19(3) of the Rome Statute and Rule 59(3) of the Rules of Procedure and Evidence), above n. 210, 3. Situation in Darfur (Decision on Victim Participation in the Appeal of the Office of the Public Counsel for the Defence against Pre-Trial Chamber I’s Decision of 3 December 2007 and in the Appeals of the Prosecutor and the Office of the Public Counsel for the Defence against Pre-Trial Chamber I’s Decision of 6 December 2007) ICC-02/05–138 (18 June 2008), paras. 31–33. Prosecutor v. Laurent Koudou Gbagbo (Directions on the Submissions of Observations) ICC-02/11–01/11–236 (31 August 2012), para. 4. The Appeals Chamber invited Coˆ te d’Ivoire to submit observation under Rule 103 and thus avoided the discussion on the standing of that State in the appeals procedure. Schabas, The International Criminal Court, above n. 30, 942–943; Hartwig, ‘Appeal and Revision’, above n. 184, 556–557. In detail with extensive references to the case law, Schabas, The International Criminal Court, above n. 30, 942–943; Hartwig, ‘Appeal and Revision’, above n. 184, 556–557. More recently, Prosecutor v. William Samoei Ruto et al. (Decision on the ‘Observations on the Directions on the Submission of Observations pursuant to Article 19(3) of the Rome Statute and Rule 59(3) of the Rules of Procedure and Evidence’) ICC-01/09–01/11–390 (20 February 2012), para. 13; Prosecutor v. Laurent Koudou Gbagbo (Directions on the Submissions of Observations), above n. 24 paras. 3–4.

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at first-instance proceedings on jurisdiction therefore becomes a critical factor for victim participation in jurisdictional appeals.216 Under Rule 158(1) RPE, the Appeals Chamber has the authority to confirm, amend or reverse the decision of the first-instance chamber on the question of jurisdiction. The Rules do not provide for remanding the case for reconsideration to the first-instance Chamber for appeals under Article 82(1)(a) Rome Statute. Nonetheless, the Appeals Chamber has proceeded to do exactly that in its early case-law on admissibility. The Appeals Chamber overturned on appeal a decision declaring an application for an arrest warrant inadmissible and remanded for reconsideration to the Pre-Trial Chamber.217

8.5 Concluding remarks The Rome Statute and the Rules of Procedure provide for a multi-level procedural framework for the assessment of the Court’s jurisdiction. The system is compartmentalized to a certain extent, with different rules for the different stages stemming from a horizontal division of process. The procedural regime concerning challenges to jurisdiction shows all the signs of a project still in development. There are contradictory decisions on points of law (‘commencement of trial’), ambiguity on the meaning of basic concepts (the ‘earliest opportunity’) and an overall scarcity of decisions on point. This procedural system is therefore expected to undergo a process of substantial refinement in the future case-law of the Court in general, and the jurisprudence of the Appeals Chamber in particular. In doing so, it is expected that the Court will sooner rather than later clarify, among many others, the meaning of ‘a challenge to jurisdiction’ or ‘the earliest opportunity’, as well as the position, if any, reserved for the consideration of facts in proceedings concerning challenges to jurisdiction ratione personae, loci and temporis. 216

217

Prosecutor v. Francis Kirimi Muthaura et al. (Decision on the ‘Observations on the Directions on the Submission of Observations pursuant to Article 19(3) of the Rome Statute and Rule 59(3) of the Rules of Procedure and Evidence’) ICC-01/09–02/11–400 (OA 4) (20 February 2012), paras. 13–16. Situation in the Democratic Republic of the Congo (Judgment on the Prosecutor’s Appeal against the Decision of Pre-Trial Chamber I entitled ‘Decision on the Prosecutor’s Application for Warrants of Arrest, Article 58’) ICC-01/04/169 (13 July 2006), para. 90.

9 Concluding remarks

In 1944, Brierly argued in favour of the conceptualization and prosecution of German war criminals under international, as opposed to national law. One key aspect of his argument was that the fact that jurisdiction over war crimes ‘has no territorial basis, and it may therefore be exercised without any reference to the locus delicti’.1 More than fifty years later, the adoption of Article 12(2)(a) in the Rome Statute confirmed that the world has not progressed significantly compared to the pre-1944 legal situation. The emancipation of the prosecution of war crimes from national perceptions of law and jurisdiction is still debated. The inclusion of territoriality in the Rome Statute may be read as an indication that, in the absence of Security Council referrals, the international enforcement of ostensibly universal human values remains tantalizingly intertwined with traditional State consent doctrine. Evidently, that was one of the prices that had to be paid for the successful conclusion of the Rome negotiations and the acceptance of the Statute by States. The new Article 15bis serves as further evidence of this approach, this time in order to achieve the inclusion of the crime of aggression in the Rome Statute. The Court’s practice on this topic is scant. The Prosecutor’s reliance on self-referrals and Security Council initiatives has not yet allowed for any real controversy to emerge as regards Article 12(2)(a) ICC Statute. The defence has also not raised such issues in cases where it could arguably do so. In the Bemba Case, for example, the accused was situated in the DRC throughout the critical time, i.e. 25 October 2002 to 15 March 2003.2 He allegedly visited the CAR only on one or possibly two 1 2

J. Brierly, ‘The Nature of War Crimes Jurisdiction’, in H. Lauterpacht (ed.), The Basis of Obligation in International Law and Other Papers (Oxford: Clarendon Press, 1958), 304. Prosecutor v. Jean-Pierre Bemba Gombo (Warrant of Arrest for Jean-Pierre Bemba Gombo replacing the Warrant of Arrest issued on 23 May 2008) ICC-01/05–01/08–15-tEng (10 June 2008), para. 10.

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occasions.3 The rest of the time he is said to have monitored and ordered the commission of crimes in the CAR via remote telecommunications devices or correspondence.4 The defence, however, never sought to argue that the Court did not have jurisdiction over the Bemba Case, on the grounds that it fell beyond the scope of the territorial parameter of the situation in the CAR. Had the defence made such argument, the Court would have needed to decide whether the remote commission of Bemba’s alleged crimes could be constructively localized in the CAR. The first and only authority on point at the moment therefore remains the Mbarushimana Case.5 Admittedly, the Court’s case-law on territorial jurisdiction did not get off on the right foot. Although Mbarushimana was a clear-cut case of territorial jurisdiction, certain important shortcomings in its over-complicated reasoning made it a decision of doubtful quality. However, these developments do not mean that there is no room for improvement or optimism. After all, the Court exists. It has the power to determine its own jurisdiction within the limits of the Statute – a prerogative inherent in its existence as an international judicial institution by operation of general principles of law. It is the proper use of this prerogative that may allow the Court to overcome some of the jurisdictional loopholes left open by the unfortunate rejection of universality in Rome. This is the main theme of the present book; to explore the possibilities open to the Court through the interpretation of Article 12(2)(a), so as to redress the ‘universalist’ vacuum created in Rome in the case of State party referrals or prosecutorial initiative. The analysis took place against the background of the perceived legal interests of the three main classes of actors for which the Court has to cater: States, the victims and the accused. In the ICC–State dimension, the starting point is that the ICC is an international organization, rather than a State. Due to this fact, otherwise 3

4 5

The arrest warrant decision mentions two occasions, once in November 2002 and once in December 2002. Prosecutor v. Jean-Pierre Bemba Gombo (Decision on the Prosecutor’s Application for a Warrant of Arrest Against Jean-Pierre Bemba Gombo) ICC-01/05–01/08– 14-tENG (17 July 2008), paras. 36, 82. The confirmation of charges decision refers only to his visit to the CAR on November 2002, in order to address his troops. Prosecutor v. JeanPierre Bemba Gombo (Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo) ICC-01/05–01/08–424 (15 June 2009), paras. 471, 485. Ibid. (Decision on the Application for a Warrant of Arrest), para. 77. Prosecutor v. Callixte Mbarushimana (Decision on the ‘Defence Challenge to the Jurisdiction of the Court’) ICC-01/04–01/10–451 (26 October 2011).

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well-settled issues of territorial jurisdiction in the context of interstate relationships are deemed worthy of new analysis. The distinction between the authority of States and the authority of the Court as an international organization is important. It is particularly relevant for the nature of the Court’s jurisdiction, the application of international law by an international organization as a subject of international law and the implications of the principle of non-intervention in the use of constructive localization devices. Concretely, it remains to be seen whether States would be willing to accept from the ICC what they routinely seem to accept without reservation from even the lowest national criminal courts, insofar as the interpretation of territorial jurisdiction is concerned. This is a difficult question to answer. Admittedly, States have been generous with claims of territorial jurisdiction in their own practice, particularly compared to universal jurisdiction. It remains to be seen how they will respond to the potential use of objective territoriality, ubiquity or the effects doctrine by the Court. At the ICC–individual level, the analysis of territorial jurisdiction is more complicated. Two diametrically opposed interests are evident. On the one hand, victims would presumably seek an effective investigation into allegations of commission of ‘core crimes’. Their claims to effective justice would motivate the most expansive reading of Article 12(2)(a) possible under international law. On the other hand, the interests of the accused would arguably advocate for a strict interpretation of territorial jurisdiction, in line with requirements of predictability established by human rights law. Within this web of legal interests, two main groups of legal devices that are frequently used to interpret territorial jurisdiction by national judges have been explored. The first concerns the constructive localization of criminal activity in State Party territory and the second the expansion of the territorial scope of application of the Court, particularly in conditions of occupation. The analysis sought to address the key points of all sides of the spectrum, moving from the more restrictive interpretation to the more expansive one. Correspondingly, as regards territorial constructions, the Court’s territorial jurisdiction was examined, starting from the occurrence of the criminal conduct alone on State Party territory, and moving to the localization of any constituent element of the crime on State Party territory. Ultimately, the question was posed whether the Court may exercise territorial jurisdiction when direct, substantial and reasonably foreseeable effects, other than the criminal consequences of the crime, take place in

concluding remarks

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State Party territory. Questions on the localization of crimes committed online were also addressed. Equally, from the point of view of territorial jurisdiction and Article 12(2)(a) in situations of occupation, certain specific scenarios were addressed; the occupation of State Party territory by another State Party or by a State not Party, as well as the occupation of State not Party territory by States Parties. The critical issue here revolved around the meaning of ‘territory’ and its possible interpretation, so as to include territories under State Party control, but not sovereignty. This book does not suggest an unbridled exercise of territorial jurisdiction by the Court. There are limits to what the Court can do under Article 12(2)(a), lest the provision become a jurisdictional carte blanche to the detriment of the Court’s legitimacy. Such limits to the Court’s jurisdiction can be traced back to international law and deduced by recourse to Mann’s doctrine of jurisdiction.6 In short, it is suggested that, in the absence of ‘hard and fast’ rules, international law imposes ‘reasonableness’ as an overarching principle of jurisdiction.7 It is considered as the best solution available to the Court for testing the lawfulness of its jurisdictional assertions. This principle is informed by aspects of the principles of non-intervention and abuse of rights.8 Transposed to the ICC system, it indicates that the territorial jurisdiction of the Court must be ‘reasonable’, in the sense that a ‘sufficiently close connection’ must be shown to exist between an offence and State Party territory. This is considered as the critical standard for assessing the lawfulness of the Court’s territorial jurisdiction under international law, particularly in constructive localization situations, including also crimes committed online. From a broader perspective, the analysis seeks to find the balance between consensualism and community values within the context of the jurisdiction of the ICC. The entire discussion has largely moved between the pillars of apology and utopia.9 ‘Apology’, in the present context, indicates the negotiated limitations and the lex lata, on the basis of which the Court is called to operate. ‘Utopia’, on the other hand, includes expansive readings of territorial jurisdiction, geared towards the attainment of ideals 6 7 8 9

F.A. Mann, ‘The Doctrine of Jurisdiction in International Law’, Recueil des Cours de l’ Acad´emie de Droit Internationale, 111 (1964-I), 43–46. C. Ryngaert, Jurisdiction in International Law (Oxford University Press, 2008), 236–237. Mann, ‘The Doctrine of Jurisdiction in International Law’, above n. 6, 43–45; Ryngaert, Jurisdiction in International Law, above n. 7, 180–182. Generally, M. Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument (Helsinki: Finnish Lawyers’ Publishing Co., 1989).

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connected to the concept of a civitas maxima:10 the enforcement of rules of law promulgated for the protection of universal human values through the corresponding mechanisms applicable equally to all. The outcome has been mixed. Thus, it is believed that the exercise of objective territorial jurisdiction, as well as the exercise of territorial jurisdiction by the Court in cases where State Party territory is occupied, will very likely prove to be uncontroversial. These conclusions are founded on well-established rules of international law and are generally supported by (and supportive of) state sovereignty. On the other hand, the exercise of jurisdiction by the Court on the basis of the effects doctrine and the notion of State Party ‘control’ over occupied territory are likely to prove much more controversial. The first suggestion suffers to a large extent from its novelty, the lack of precedents in the field of international criminal law, and the negative history surrounding the early application of the effects doctrine in antitrust law. The second, while supported by human rights jurisprudence, has its own difficulties to overcome, such as the decision of states not parties not to ratify the Statute, the wording of the Statute and Article 29 VCLT. These arguments are generally inspired by the human rights of the victims, rather than state sovereignty. As such, a substantial degree of objection may be expected from States and suspects alike. Although both options are deemed worthy of exploration by the Court, admittedly for the second one, soliciting an ad hoc acceptance of jurisdiction by the Occupied State may prove easier than embarking on an expansive interpretation of the Statute. Be that as it may, both suggestions constitute interesting propositions de lege ferenda. Ultimately, it falls upon the Court to decide whether they are suitable for implementation in the system of the Rome Statute and, if so, the proper time for their eventual endorsement. All things considered, the Court has yet to take a position on the issues under consideration. Challenges to territorial jurisdiction have been scarce and the Court’s procedural law on the matter is still developing in many important aspects. Such questions, however, are likely to arise in the near future. The Court’s authoritative answers are eagerly anticipated. 10

M.C. Bassiouni, Introduction to International Criminal Law (Ardsley, NY: Transnational, 2003), 31–41.

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INDEX

abuse of rights, doctrine of, 32, 196, 199, 285 accessibility, 125 admissibility, 167, 168, 186, 253 case-law on, 276 challenges to, 256, 257, 258, 266, 268 and jurisdiction, 198, 257 aggression, crime of, 6, 82, 282 Aggression Working Group, 79–82, 158, 160 aircraft or vessels, crimes committed on board, 8, 54, 93, 252, 253 Al-Bashir Arrest Warrant Decision, 69, 96 Al-Senussi, A., 258 ALCOA case, 25, 184, 192 Ambos, K., 21 American Convention on Human Rights (ACHR), 126 American Soda Ash Case, 195 Amnesty International, 46 antitrust law, 25, 169, 180, 190 and criminal law violations, 172 criminalization of, 175, 176, 177 and the effects doctrine, 26, 28, 165, 178–180 state practice, 180 apology, 285 Appeals Chamber, 274–281 authentic guide to interpretation of the Statute, 62 authority of, 281 discontinuance of an appeal, 279 Extraordinary Review Appeal, 120–121, 122 ICC Statute Article 21, 119

interpretation of jurisdiction, 12, 66, 67 Kenyan Cases, 246 participation in jurisdictional appeals, 280 procedure relating to appeals on jurisdiction, 279 requirement for universal national principles of law, 121 rules on jurisdiction, 274 standing, 276 staying of proceedings, 67 suspension of investigation, 278 Tadi´c case, 77 time limits for filing of an appeal, 278 arbitrariness, 127, 202 Arrest Warrant Case, 102 Bassiouni, M.C., 100 belligerent occupation, 209–242, 285 basic principles and rules, 212–214 and the ‘departed sovereign’, 213, 220 division of jurisdiction between occupying and occupied States, 221 ICC practice on, 211 interpretation of ‘territory’, 233 meaning of ‘within the territory’, 224–241 social, legal and political considerations, 242 and sovereignty, 220, 230 and State responsibility, 211 and territorial scope of application of ICC Statute, 210–212

329

330

index

Bemba Case, 260, 261, 262, 274, 282 Bemba Confirmation of Charges Decision, 68 Brierly, J., 282 Buergenthal, Judge, 29 Bush Administration, 227, 228 Cameron, I.A., 107, 184, 189, 205 Canada, Supreme Court of, 34, 88, 154 cartels, international, 26, 176, 180 Central Criminal Court of Iraq (CCCI), 227 criticisms of, 227, 229 CERD, 238 CERD (Georgia v. Russia) Cases, 238, 240 challenges to the territorial jurisdiction of the ICC, 186, 243–281, 286 and appeals, 275, 276 Appeals Chamber, 274–281 burden and standard of proof, 263–266 case-law on, 281 challenges to admissibility, 256 challenges to ratione loci jurisdiction, 269–270 commencement of trial, 259–262, 274 by defence, 255 definitions, 243–249 discretion of Chamber to determine procedure, 254 ‘earliest opportunity’, 255–259 page limits, 254–263, 279 participation in proceedings, 251, 280 parties not afforded standing, 251 Pre-Trial Chamber, 270–274 procedural framework, 249–269 procedural stages, 270–281 right to raise challenges, 250, 251, 254 ‘same person/same conduct’ test, 253 schedule of the confirmation of charges, 262–263 standing, 250–253 standing to file an appeal, 276

State challenges, 255, 268 States endowed with standing, 252 States whose national is accused or on whose territory the crime occurred, 253 suspension of investigation, 266–269 time limits, 254–263 Trial Chamber, 274 civil law, 120 Civilians Convention, 229 Coalition Provisional Authority (CPA), 226, 227, 229, 231 criticisms of, 227 Code of Conduct of the Bar Council of England and Wales, 114 comity, 27 common law, 92, 121, 122 competition law, 166 criminalization of, 173, 176, 181 forms of liability, 172 lack of harmonization of, 166 price-fixing conspiracies, 167 complementarity, 167, 198 ‘conduct in question’, 79–161 act or omission, 82, 91–95, 100 connecting link between crime and territory of a State Party, 88, 111 and consequences or circumstances of crime, 81, 95, 99 definition of, 91 delegation of authority and limitations, 85 doctrinal conditions, 82–91 interpretation of, 100 localization of criminal activity, 101–130 and national law, 90–91 occurring in: more than one State territory, 107; State Party territory, 79–82, 95; territory of a State not Party, 80; within territory of a State Party, 80 State Territory as connecting link, 83 as ‘the crime(s) in question’, 82, 96–100, 101 conflict, international and non-international, 4 conflict, internal in a State not Party, 4

index connecting link between crime and territory of a State Party, 83, 88, 111 constituent elements of a crime, 108 attempts to commit a crime, 20, 21 connexit´e/indivisibility of a crime, 21 in criminal law, 108 definitions of, 17–22 effects, 18, 24 incitement to commit a crime, 19 intent, 18 localization of participation, 19 and Lotus Case, 108 in national law, 18 preparatory acts, 21 State practice on, 108, 109 ubiquity, 22–24 constructive localization, 123, 201, 202, 212, 284 Convention on the Rights of the Child, 218 Coˆ te d’Ivoire, 201, 244, 271 Council of Europe, Project on Cybercrime, 143 Crawford, J., 45 crime, contextual elements of, 93 crime, responsibility for investigating and prosecuting, 198 crimes against humanity, 55 criminal activity, transboundary, 7, 14 ‘act or omission’, 14 criminal jurisdiction, 9, 129, 172–182 criminal law, 122, 166 and antitrust violations, 172 ‘constituent elements’ of a crime, 108 constructive localization, 123 content crimes, 135, 136 cybercrimes, 135, 136 and effects doctrine, 185 foreseeability and accessibility, 125 harmonization of, 104, 133, 151, 176 and jurisdictional conflicts, 185 and principle of legality, 158 territorial jurisdiction, 206 criminal responsibility, national law on, 19 crisis, situation of, 198, 201

331

Cryer, R., 230, 236 customary international law, 37, 170, 248 limits of jurisdictional assertions under, 103 principle of non-interference, 35 and state territorial criminal jurisdiction, 103 Cybercrime Convention, 136, 137, 140–142, 151, 152 Additional Protocols, 141 Explanatory Report, 141 implementing legislation, 141 national jurisdiction, 140 cybercrimes, 135 definition of, 136 localization of, 141 Darfur, 5, 255 David, E., 46 defamation, 150 delegation of authority, 107, 117, 159, 160 Democratic Republic of the Congo (DRC), 196, 200, 220, 242 deterrence, 77, 164, 186 and effects doctrine, 164 Diplock, Lord, 23 due process rights, 128 Dugard, J., 46 effectiveness, principle of, 62 effects doctrine, 7, 9, 90, 162–207, 284, 286 adoption by the Court, 163–171 application of, 25, 136, 165, 167, 201–204 classification of effects, 190–195 collection of evidence, 188–189 connection between crime and State Party’s territory, 168 and criminal law, 172–182, 206 definition of, 202 and deterrence, 164 ‘direct’ element, 193 effectiveness, 188 history of, 206 limitations, 169, 186

332

index

effects doctrine (cont.) as means of localizing crime, 184 and mobilization of national judiciaries, 186 and national legislation, 172–178 and Nippon Case, 178–180 and objective territoriality, 24–31, 162 over-regulation and jurisdictional conflicts, 185–187 policy and law, 162–163 proof of in jurisdiction stage of a case, 195 qualifications of effects, 30, 207 State practice, 187, 190 and State sovereignty, 187–188 ‘substantial’ element, 193, 194 and territorial jurisdiction, 183–185 use by ICC, 207 use in national antitrust law, 31 El Zeidy, M.M., 253 electronic transactions, 80 Empargan Case, 193 enforcement, 134, 286 equality before the law, 165 Erdemovi´c case, 122 European Commission, 29, 127 European Committee on Crime Problems (CDPC), 23 European Convention on Human Rights (ECHR), 126, 129 European Court of Human Rights (ECtHR), 125, 126, 127, 129 and national law, 129 regionalism, 240 European Court of Justice (ECJ), 72, 177, 194 effects doctrine, 29, 195 ‘sufficiently close connection’ concept, 34 European Union, 55 competition law, 176 and crime committed over internet, 142–143, 151 extradition treaties, 70, 138 Extraordinary Review Appeal see Appeals Chamber extraterritoriality, 183

flag state jurisdiction, 8 see also aircraft or vessels, crimes committed on board Foreign Trade Antitrust Improvements Act (FTAIA, US), 27, 28 foreseeability, 125, 134, 138, 192, 284 forum shopping, 129 Framework Decision on Combating Racism (EU), 142 France, 50 competition law, 174–175 Yahoo! Cases, 148–149, 152, 158 Gallant, K.S., 138 Gbagbo Case, 62, 63, 84, 244, 273, 274, 277 Gencor Case, 29, 194 Geneva Conventions, 217 creation of military courts, 231, 232 maintenance of local criminal law, 231 ‘necessity’ application of, 232 Pictet Commentary, 231 transfer of protected persons from occupied territory, 231, 232 genocide, 44, 55, 153–158, 257 duty to prevent, 153 an inchoate offence, 154, 155 incitement to commit, 153–158 and objective territoriality, 157 ‘public’ element of incitement to, 155, 156 Genocide Convention, 45, 105, 153 German, 34–36, 52–54, 87–88, 128–129, 146–147, 204, 282 Germany, 57, 60, 151 competition law, 176 connection between State exercising jurisdiction and offence, 147 Constitutional Court, 34, 36 Criminal Code, 146 Holocaust denial, 146 Supreme Court, 88 universal jurisdiction, 51, 52, 53 Greenwood, C., 221 Hall, C.K., 252 Hartford Fire Case, 179, 191, 193 Hayashi, M., 204

index Higgins, Judge, 29 Holmes, J.T., 267 Holocaust denial, 146 human rights law, 8, 10, 130, 160, 284, 286 and ICC Statute, 237 and jurisdictional issues, 124, 134 and reasonableness, 130 rights of accused, 124, 125 victims and, 124 human rights treaties, 224, 234, 237 and ICC Statute, 236 teleological interpretation, 238 human rights violations, 105, 242 punishment of, 166 rights of victims, 189 ICC Statute, 2 and 2008–2009 Aggression Working Group, 79–82 appeals under Article 82, 275, 276 Article 12(2)(a) see separate entry ‘attributed conduct’, 99 and belligerent occupation, 210–212 constitutional limitations in, 88 and ‘constituent elements’ of crimes, 109 ‘crimes committed’ and ‘conduct’, 91–95, 98, 99 definitions of crimes, 98, 110, 111, 137, 138, 171–201, 248, 282 and deterrence, 77 Elements of Crimes, 76, 81, 92, 109, 110, 111 and general principles of law, 90, 99, 112, 123 and human rights treaties, 236 and incitement to commit genocide, 153 instruments of interpretation, 9, 61–77 intention of drafters, 76, 159, 242 as international treaty, 241 interpretation of, 87, 117, 123, 237: in accordance with legal nature of Article 12(2)(a), 73–74; consistency of interpretation, 237; consistent with human rights, 64,

333

124, 237, 239; contextual interpretation, 61–64, 94, 235; flexibility of, 11; rules of interpretation in, 61, 64–72; teleological interpretation, 61–64 jurisdictional rule of reason, 196–201 localization of criminal activity, 136 and national law, 90, 110, 121 nature of, 73 negotiations on jurisdiction, 160, 167, 171 parties to, 5 preparatory works, 59, 233, 235, 239 procedural framework, 76, 243 purposes of, 76 ratification of, 6, 109, 220, 222, 242, 286 ‘sufficient link’ test, 36 and territorial jurisdiction, 4, 74, 152 territorial scope of its application, 79, 89 and the Vienna Convention on the Law of Treaties (VCLT), 61–64 ICC Statute Article 12(2)(a), 6, 7, 9, 10, 60, 232–233 application, 112, 158, 239, 241, 284: in occupied territories, 214–220; in State Party territory occupied by a State not Party, 220–223, 242; in the territory of a State not Party occupied by a State Party, 224–241 and Article 13, 96 and Article 17, 198 and Article 21(1)(b), 159 and Article 21(1)(c), 113, 159 and Article 21(3), 61, 64–67, 125, 224–241 and Article 22(1), 99 and Article 30, 95, 158 and kompetenz kompetenz, 67 creative ambiguity in, 39 definition of ‘conduct’, 93 effectiveness of, 80 and effects doctrine, 205 a form of territorial principle, 188 intention of drafters, 93, 95, 233

334

index

ICC Statute Article 12(2)(a) (cont.) interpretation of, 75, 88, 205: constructive interpretation, 89; difficulty of, 75; human rights interpretation, 225; instruments of interpretation, 61–77, 78; interpretation of ‘territory’, 233, 242; teleological interpretation, 162, 163, 171–201, 205 jurisdiction as a legal requirement, 107 and jurisdictional reasonableness, 196 legal nature of, 73–74 limits to what the Court can do, 285 preparatory works of Article 12(2)(a), 37–60 and principle of legality, 61, 67–72, 76 procedural/constitutional provision, 74 and territories under State Party control but not sovereignty, 225 unique formulation of, 100, 101 ‘within the territory’ and ‘under the control of ’, 224–241 ICC Statute Article 12(2)(b), 93, 100, 225, 253 in dubio pro reo, 68 inchoate crimes, 154, 155, 204 Inter-American Court of Human Rights, 126 International Competition Network, 176 International Court of Justice (ICJ), 39, 239, 265 CERD (Georgia v. Russia) Case, 238 International Court of Justice (ICJ), Jurisdictional Immunities Case, 71 International Covenant on Economic, Social and Cultural Rights (ICESCR), 239 International Covenant on Civil and Political Rights (ICCPR), 239 International Convention on Elimination of All Forms of Racial Discrimination see CERD International Criminal Court (ICC), 60 Ad Hoc Committee, 47–51

Appeals Chamber see separate entry authentic guide to the interpretation of Statute, 62 authority of, 245, 284 autonomy of its Statute and operations, 116 availability and completeness of the historical record, 59 and belligerent occupation 209–242 challenges to admissibility see under admissibility challenges to jurisdiction see challenges to the territorial jurisdiction of the ICC comp´etence de la comp´etence, 10, 83–85: exercise of, 67, 111; source of, 107, 117, 206 consideration of the merit, 265 creation of, 42 and crime committed over internet, 133 criminal act of ‘display’ through online systems, 157 declarations of acceptance of its jurisdiction, 52 delegation of authority, 85, 86 discretion in interpretation, 123 Draft Statute, 42, 43, 47 and effects doctrine see effects doctrine and general principles of law derived from national legal systems, 112, 113 and genocide, 153–158 and human rights law, 124–130, 237, 239 independence of, 225, 230 an international actor, 11 and international humanitarian law, 240 an international judicial institution, 117, 283 international legal personality of, 85 an international organization, 39, 73, 85, 87, 160, 283 ipso jure jurisdiction over core crimes, 44 and Iraq, 232

index jurisdictional over-reach, 5 and a jurisdictional rule of reason, 36, 107, 202 jurisdiction: appeals on jurisdiction, 245; assertion of jurisdiction, 107; automatic jurisdiction, 52; ‘dormant’ jurisdiction, 257; exercise of jurisdiction, 48; functional jurisdiction, 86; jurisprudence on, 62, 220; limitations on, 85, 89, 111–124; negotiations on, 2, 40, 48, 49, 51–59, 97; power to determine, 83–85, 159, 161, 250, 264, 283; procedural framework on, 244, 249–269, 281; subject matter, 248; territorial jurisdiction, 12, 115, 164, 209–242; strands of, 43; universal, 53, 55 jurisdictional safeguards against abuse, 59 legal implications of adoption of effects doctrine, 171 legal instruments and definitions, 110 legal personality of, 159 and national law, 119, 120 need for uniformity in resolution of jurisdictional questions, 116 objections alleging mistreatment of accused while in national custody, 245 penalties available, 229 power to interpret its Statute, 87, 88, 118, 123, 159, 160, 206 practice: on aggression, 282; on belligerent occupation, 215, 222; on interpretation, 63 Preparatory Committee, 47–51 prevention and punishment of crime, 77, 101, 165, 186, 206 and principle of legality, 69 and principle of non-intervention, 107 procedural efficiency, expediency and fairness, 244 Prosecutor’s role, 97, 235, 247, 248, 271

335

purposes of, 82, 101 Registrar, 279 Rome Conference, 51–59 Rules of Procedure and Evidence, 249 scope of its territoriality, 7 Security Council referrals, 164, 235, 242 self-referrals, 77 and State consent, 45, 46, 52, 85, 186: of the national State, 49, 50; of the territorial State, 47, 54 and State cooperation, 48, 188, 235 State referrals, 97 and States not Parties, 6, 82, 115, 186, 253 Statute of, 58 ‘sufficient connection’, 36, 198, 201–202 ‘sufficient link’ test, 196, 198, 199, 200, 201, 202 ‘transfer of proceedings’, 110 as treaty-based mechanism, 117 treaty crimes, 42, 44, 56 and values of international community, 3, 4, 165, 166, 282, 286 written observations, 249 Zutphen Draft, 50 International Criminal Tribunal for Rwanda (ICTR), 153, 156, 247 case-law, 154 incitement to commit genocide, 155 International Criminal Tribunal for the Former Yugoslavia (ICTY), 1, 121, 247 applicable law, 248 international human rights law, 124–130 arrest and detention, 126 case-law, 72 monitoring bodies, 124, 127, 237 and principle of legality, 125–126 international humanitarian law, 209, 220, 240 international law, 111, 206 and belligerent occupation, 214 and exercise of jurisdiction, 113

336

index

international law (cont.) and ICC territorial jurisdiction, 8, 102–111 and international enforcement mechanism, 44 and interpretation of ICC Statute, 88 jurisdiction, 181 jurisdictional rule of reason, 36 limits to State jurisdiction under, 196 and localization of crimes, 89–90 positive tradition in, 163 reasonableness, 285 reasonableness a principle of, 34 right of States to exercise jurisdiction, 22 rules on jurisdiction, 2 and sovereignty, 241 State discretion under, 104, 106 territorial jurisdiction in, 13 International Law Commission (ILC), 9, 41–58 Draft Code of Crimes against the Peace and Security of Mankind, 41, 42 Draft Statute, 45 issues arising out of Draft Statute, 47 Working Group on jurisdiction, 42, 43 international organizations, 65, 74 international solidarity, principle of, 3 international treaty law, 105, 209 International Tribunal for Rwanda (ICTR), 1 internet and localization of crimes, 130–158, 285 see also cybercrime case-law on, 151, 152 common denominator for localization, 139–150 connection between State territory and offence, 148 enforcement, 158 EU instruments, 142–143 as ICC Statute crimes, 135–139 incitement to commit genocide, 153–158 minimum contact with State territory, 144 and national law, 133, 143–150

need for new solutions in terms of jurisdiction, 131 and State practice, 140 and territorial jurisdiction, 132, 150 territorial links, 157 treaty law, 140–142 Iraq, 211, 224, 226, 230 Central Criminal Court of Iraq (CCCI), 227, 229 Coalition Provisional Authority (CPA), 226, 231 extradition of Iraqi nationals, 231 Iraqi Criminal Procedure Code, 231 Iraqi Special Tribunal, 226, 228 Islamic law, 121 Israel, Supreme Court of, 34 Italy, Court of Cassation, 239 Jennings, Robert, 184 Jorgi´c case, 34, 127, 129 reasonableness, 128 ‘sufficiently close connection’ concept, 36 judicial activism, 206, 207 jurisdiction and admissibility, 198, 257 ‘ceded’ jurisdiction, 50 challenges to, 186 conflict of, 185–187, 256, 258 and ‘constructive presence’, 14 criminal, 9, 129 definitions of, 12 division between occupying and occupied States, 221 and enforcement, 13, 134, 214, 258 extraterritorial, 183 hierarchy of claims to, 107 immunity from, 72 interpretation of, 85 ipso jure jurisdiction over core crimes, 44 lack of uniform law of, 103 models of, 52 nationality jurisdiction, 47, 189 over mobile things, 14 over persons (ratione personae), 12 preconditions for exercise of, 69 prescriptive, 13

index and principle of non-intervention, 106 ratione temporis, 12, 222, 245, 264 and rules of procedure, 126 and State sovereignty, 13 States which ‘normally’ exercise, 112, 113, 119 subject matter (ratione materiae), 12, 222, 245, 248, 264 territorial (ratione loci), 12, 70, 245, 264, 269–270 and territory, 232–241 universal jurisdiction, 70, 88, 102, 105, 168, 169, 170 jurisdictional rule of reason, 106, 207 Katanga Case, 219, 260, 261, 262, 268, 274 Kaul, Judge, 246, 247, 248, 265 Kenya, 256, 271 Kenya Authorization Decision, 96 Kenya Jurisdiction Appeal Decisions, 265 Kenyan Cases, 62, 85–89, 246, 247, 273 Kohl, U., 150 Kooijmans, Judge, 29 Korea, 53, 54, 55, 56, 60 Laker Airways Case, 184 law, principles of and ICC Statute article 21(1)(c), 123 and ICC territorial jurisdiction, 111–124 identification of, 119, 120, 121 legality, principle of, 10, 61, 64, 67–72, 76, 158 and cybercrimes, 137 and human rights law, 125 and national standards, 71 and territorial jurisdiction, 76 and ‘the conduct in question’, 68 and ‘the definition of a crime’, 68 Libya, 5, 258, 268 localization constructions, 9, 79, 101–130 and effects doctrine, 184 and internet, 130–158 Lockerbie, 185

337

Lotus Case, 13, 102, 103, 108, 159 ‘constituent element’ approach, 108 objective territoriality, 17 Lozano Case, 239 LSL litigation, 191, 194 Lubanga Case, 66, 69, 209, 211, 222, 242, 271 Arrest Warrant Decision, 216–219 Confirmation of Charges Decision, 215 mistake of law argument in, 218 principle of legality, 218 source of ICC jurisdiction, 217 test for jurisdiction, 96 Lubanga Confirmation Decision, 36 Lubanga Witness Proofing Decision, 114–115 Lynch, Judge, 179 Malaysia, 144 Mann doctrine, 33, 35, 83, 88, 106, 112, 285 Mann, Francis, 31, 32 Mantovani, F., 21 mass crimes, state policy dimension in, 164 Mbarushimana Case, 36, 184, 196–201, 207, 283 complementarity, 63 connection to situation in DRC, 9, 96, 204 facts of case, 200 jurisdictional challenge, 269, 273, 274 jurisdictional rule of reason, 198 locus delicti commissi, 244 territorial aspect, 77, 84, 197, 203 McNair, A.D., 221 Mharapara Case, 182 Mugesera Case, 154 Muthaura Case, 247, 248, 267, 274 national law criminal law systems, 7 and ICC Statute, 110 margin for interpretation, 118 nationality, and territoriality, 60 ne bis in idem principle, 94, 99

338

index

Nesbitt, N.H., 172 New Zealand Court of Appeals, 34 NGOs, 49 Nippon Case, 167, 178–180, 191, 192, 206 non-discrimination, principle of, 64 non-intervention, principle of, 88, 108, 284, 285 and Mann’s doctrine, 35, 112 and reasonableness, 32, 196 and substantial connecting link, 111, 199 Norris Case, 174 nullum crimen nullo poena sine lege scripta certa praevia stricto, 68 nullum judicium sine lege, 126 objective territoriality, 9, 17–31, 112, 157, 284 and effects doctrine, 24–31 and subjective territoriality, 15, 100, 101, 133 and ubiquity, 23 occupation, definition of, 214 occupied territories, de jure jurisdiction over, 213 OECD, 176 Ould Dav Dah v. France, 125–126, 129 pacta tertiis rule, 5, 187–188 Pakistan, 145 Palestine referral to ICC, 210 Peace of Westphalia, 2 peacekeepers, exemption from jurisdiction of ICC, 5 Permanent Court of International Justice (PCIJ), 13 Pictet Commentary, 231 policy, judicial, 114–115, 149, 152 presumption of innocence, 68 private international law, 116 procedural efficiency, expediency and fairness, 244 R. v. Libman, 151 reasonableness, 8, 32, 127, 129, 151, 152, 264, 285 and close connection, 34

and ICC Statute, 196–201 recognition, 223 Reid Case, 34 remote weapons delivery systems, 80 right to fair trial, 126, 127, 160, 226 rights of accused, 124, 125, 126, 128, 160 arrest and detention, 126 participation in proceedings, 251 rights of victims, 284, 286 Rome Conference, 51–59 Rome Statute see ICC Statute Rosenstein Case, 34 rule of reason, 9, 36, 157, 196, 207 and international trade regulation, 33 State practice and, 33 Russian Federation, 54, 55 Ruto et al., 247, 274 Rwanda, 153 see also International Criminal Tribunal for Rwanda (ICTR) Safferling, C.J.M., 267 Schabas, W.A., 109, 267 Shaffer, G.C., 172 Sherman Act (US), 25, 172–173, 178, 190 Singapore, 145 situations, definition of, 202, 203 Sluiter, C., 109 R. v. Smith (Wallace Duncan), 151 South Africa Competition Act 1998, 195 Competition Appeals Court, 195 sovereignty, State, 4, 46, 75, 159, 206 and effects doctrine, 187–188 and international law, 241 and jurisdiction, 13 and occupation, 220, 224–230 speciality, principle of, 86, 87, 159 State consent, 3, 47, 49, 50, 54, 282 State interests, 32, 75 States authority of, 284 discretion under international law, 104 and jurisdictional issues, 81

index responsibility of, 211, 240 States Parties Working Group on the Crime of Aggression, 79–82 Strassheim v. Daily, 178 ‘sufficiently close connection’ concept, 9, 22, 36, 285 Tadi´c case, 77, 117 Talmon, S.A.G., 221 teleological interpretation, 61 territorial fictions, 7, 13–31 territorial jurisdiction, 3, 41–58, 103, 111, 164 and belligerent occupation, 8, 10, 209–242, 285 challenges to, 243–281 and consequences or circumstances of crime, 111–124 and constructive localization, 201, 202 criminal law approach, 10 and cybercrimes, 132, 142, 151 definitions, 243–249 and effects doctrine, 157, 183–185 expansive approach to, 159 and human rights law, 124–130 ICC Statute provisions on, 74 in international law, 13 interpretation of, 77, 284 lack of uniform law of, 105 limits of, 8, 9, 123 and localization of crimes, 150, 201, 202 minimum requirements for, 151 and national criminal law, 133 national law approach to, 117 national perspectives on, 104 objective aspects of, 15, 123 and principle of legality, 76 procedural aspects of, 10 and reasonableness, 36 scope of application of, 60 and State consent, 43, 44, 45, 60 subjective aspects of, 15 territoriality, 168, 206 and crime committed over internet, 149 definition of, 209

339

and ‘effective control’, 8, 10 interpretations of, 171 and jurisdiction, 232–241 and nationality, 60 objective, 9, 17–31, 112, 157, 162, 284 ‘qualified’, 15, 83 subjective, 9, 15, 16, 100, 101, 133 ubiquity, 9, 17–31, 102–111, 284 TFT–LCD litigation, 192 Third Restatement, 32, 33, 179 T¨oben Case, 146–148, 151, 204 Torture Convention, 234 transparency, 225 treaty interpretation see also Vienna Convention (VCLT) availability and completeness of historical record, 39 preparatory works in, 38, 39 treaty law, 105, 209 ubiquity, 9, 16, 17–24, 31, 102–124, 284 extensiveness of, 23 flexibility of, 23 and objective territoriality, 23 Uganda, 220 Declaration of Temporal Jurisdiction, 219 and jurisdiction of the ICC, 219 ratification of ICC Statute, 217 UN Interim Administration and ICC jurisdiction, 210 UN Security Council, 1, 4 Permanent Members, 57 United Kingdom automatic jurisdiction, 51, 52 Code of Conduct of the Bar Council of England and Wales, 114 Computer Misuse Act 1993, 144 Enterprise Act 2002, 173–174 Mutual Legal Assistance Treaty with the United States 1994, 173 War Crimes Act 1991, 71 United States Antitrust Criminal Penalty Enhancement and Reform Act, 172

340

index

United States (cont.) antitrust law, 25, 180, 190: conflict with states whose nationals are threatened with penalties under, 25; definition of ‘effects’, 28; and regulation of activities beyond US borders, 26 and crime committed over internet, 145 drug trafficking and extradition cases, 128 Federal Antitrust Improvements Act (FAIA), 190, 191, 192 jurisdictional preconditions, 58 Mutual Legal Assistance Treaty with the United Kingdom 1994, 173 Sherman Act (1890), 172–173, 178, 190 state consent, 54 Supreme Court, 190 universal jurisdiction, 53, 55 universality, principle of, 3 Uˇsacka, Judge, 69 utopia, 285

values of international community, 3, 4, 165, 166, 282, 286 vessel registration see aircraft and vessels, crimes committed on board Vienna Convention on the Law of Treaties (VCLT), 39, 66 interpretation of ‘territory’, 235, 241 and interpretation of Rome Statute, 9, 61–64, 65, 78 relevant rules of international law, 89, 212 teleological interpretation, 61–77 Vitamin Cartel Case, 191 Wall Advisory Opinion, 239 war crimes, 55, 215, 282 Warbrick, C., 45, 46 Watts, A., 221 witness proofing, 114 Yahoo! Cases, 148–149, 150, 152, 158, 204 Zimbabwe, 182, 184 Zutphen Draft, 50, 51