Abstract
The present chapter analyses the preconditions for the exercise of the International Criminal Court’s (ICC) jurisdiction. These are tightly linked to the elements of time (temporal jurisdiction or jurisdiction ratione temporis), geography (territorial jurisdiction or jurisdiction ratione loci) and person (jurisdiction ratione personae) pursuant to the active personality principle. It is of course well-known that, pursuant to Article 126 ICCRSt, the ICC’s temporal jurisdiction was established on “the first day of the month after the 60th day following the date of the deposit of the 60th instrument of ratification, acceptance, approval or accession with the Secretary-General of the United Nations”, which made 1 July 2002 its starting date. The principle of territorial jurisdiction that is reflected in Article 12(2)(a) ICCRSt is deeply rooted in international law, as well as in the legal orders of almost all States. In other words, it is consistently accepted that a State has indisputable jurisdiction over all criminal offences committed on its territory, according to the principle of state sovereignty. This can be easily ascertained from a significant number of international conventions and bilateral extradition agreements. Nonetheless, the ‘Achilles’ heel’ of Article 12(2) ICCRSt appears to lie in the establishment of the ICC’s jurisdiction almost exclusively on two pillars: the principle of territorial jurisdiction and the principle of active personality, which determines the Court’s jurisdiction based on the offender’s nationality. Moreover, the chapter analyses the intriguing issue of the ICC’s contested territorial jurisdiction, namely with regard to excluded, occupied and disputed territories. Finally, the chapter focuses on the comparative analysis and interpretation of the critical terms ‘crime’, ‘case’ and ‘situation’, while commenting on the ad hoc acceptance of the ICC’s jurisdiction by a state non-party to the Rome Statute.
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Notes
- 1.
F. Lamprinidi, “The International Criminal Court: Jurisdiction, Role and Limitations” in S. Georgoulas (ed) Criminology in Greece Today (Athens: Kapsimi) 374 [in Greek].
- 2.
The importance of the work of the preparatory committee is partly recognised in the preamble of the Rome Statute where gratitude for its work is expressed. See Annex I (B), Final Act of the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court (U.N. Doc. A/CONF.183/13) 15 June–17 July 1998 < http://legal.un.org/icc/rome/proceedings/E/Rome%20Proceedings_v1_e.pdf > (last accessed 7 January 2019).
- 3.
J. G. Lammers “Preface” in Herman von Hebel et al (1998) Reflection on the International Criminal Court (The Hague: T.M.C. Asser Press) xvi.
- 4.
I.e. proposed additions to or differentiations of the original text that would be discussed during the conference.
- 5.
UN DOC. A/CONF.183/2/Add.1, 14 April 1998.
- 6.
Australia and Canada are two States that have shown a particular interest in the institutions involved in the administering of international justice, and, as a consequence, a great number of lawyers and other specialists have staffed the offices of ad hoc criminal tribunals, as well as those of the international criminal court. During my six-month stay at the Hague in 2004, a common question jokingly asked to all newcomers to the ICTY was: “Are you from Canada or Australia?”
- 7.
E. Dousi and A. Papatolias, The International Criminal Court (Athens-Thessaloniki: Sakkoulas) 21 [in Greek].
- 8.
Of course, this does not mean that there were not any important disagreements. For example, despite the fact that in previous drafts of the Statute the jurisdiction of the court was extended to violations of drug trafficking and trade at an international level under the Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 20 December 1988, 28 ILM (1989) 493, as well as to violations of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1465 UNTS (1987) 112, eventually these offences were removed from the final draft of the preparatory committee because of the lack of agreement between the participating States. A similar fate awaited the crime of terrorism, regarding which the wording of Annex I (E) of the Rome Statute is noteworthy: “Regretting that no generally acceptable definition of the crimes of terrorism and drug crimes could be agreed upon for the inclusion, within the jurisdiction of the Court”, Annex I (B), Final Act of the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court (U.N. Doc. A/CONF.183/13 15 June–17 July 1998) < http://legal.un.org/icc/rome/proceedings/E/Rome%20Proceedings_v1_e.pdf > (last accessed 7 January 2019).
- 9.
In the final draft of the preparatory committee, three proposed definitions on the crime of aggression or, in other words, the crime against peace, can be found. All three proposed definitions included a large number of parentheses, a fact that rendered their comprehension somewhat like trying to understanding an ancient riddle. The numerous parentheses were placed in a way that left all possible outcomes open and allowed the conclusion of an agreement on this matter. Unfortunately, however, not even this forest of brackets could lead to the adoption of a definition on the crime of aggression. See this very interesting excerpt in the Report of the Preparatory Committee on the Establishment of an International Criminal Court, A/CONF.183/2/Add.1, 14 April 1998, 12-14 < https://undocs.org/A/CONF.183/2/Add.1 > (last accessed 7 January 2019).
- 10.
Article 12—Preconditions to the exercise of jurisdiction: 1. A State which becomes a Party to this Statute thereby accepts the jurisdiction of the Court with respect to the crimes referred to in article 5. 2. In 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: (a) The State on the territory of which the conduct in question occurred or, if the crime was committed on board a vessel or aircraft, the State of registration of that vessel or aircraft; (b) The State of which the person accused of the crime is a national. 3. If the acceptance of a State which is not a Party to this Statute is required under paragraph 2, that State may, by declaration lodged with the Registrar, accept the exercise of jurisdiction by the Court with respect to the crime in question. The accepting State shall cooperate with the Court without any delay or exception in accordance with Part 9.
- 11.
S. Williams, “Article 12” in O. Triffterer (ed) Commentary on the Rome Statute of the International Criminal Court (Baden-Baden, Nomos, 1999) 329.
- 12.
P. Kirsch and J. T. Holmes (1999) “The Rome Conference on an International Criminal Court: The Negotiating Process” 93 AJIL 2, 4.
- 13.
For a brief, but analytical narration of the work of the Rome Conference on Article 12 ICCRSt, see Michail Vagias, The Territorial Jurisdiction of the International Criminal Court: Certain Contested Issues (PhD Thesis), (Bynkers Hoek Publishing, Amsterdam 2011) 70-74.
- 14.
Article 34 - General rule regarding third States: A treaty does not create either obligations or rights for a third State without its consent.
- 15.
Proposal Submitted by the United States of America, U.N. Doc. A/CONF.183/C.1/L.70,247 <http://legal.un.org/docs/?path=../diplomaticconferences/1998_icc/docs/english/vol_2/a_conf183_c1_sr1.pdf&lang=EF > (last accessed 7 January 2019).
- 16.
The Jurisdiction of the International Court, an Informal Discussion paper submitted by Germany U.N. Doc. A/AC.249/1998/DP.2, par. 20. One has to point out that it is not absolutely clear in international law which crimes exactly fall within the jurisdiction of States based to the principle of universal jurisdiction. Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), International Court of Justice (ICJ), 14 February 2002 < https://www.icj-cij.org/files/case-related/121/13743.pdf > (last accessed 7 January 2019). Also see Dissenting Opinion of Judge Van den Wyngaert, International Court of Justice (ICJ) < https://www.icj-cij.org/files/case-related/121/121-20020214-JUD-01-09-EN.pdf > (last accessed 7 January 2019). However, it is a fact that both the ICTY and the ICTR in Rule 11B§§ A(ii) and (iii) Rules of Procedure and Evidence, accepted that it is legally possible to transfer cases from those ad hoc criminal tribunals to States based on the principle of universal jurisdiction. See however The Prosecutor v. Michel Bagaragaza (Decision on Rule 11bis Appeal), ICTR-2005-86-11bis, International Criminal Tribunal for Rwanda (ICTR), 30 August 2006 < http://www.worldcourts.com/ictr/eng/decisions/2006.08.30_Prosecutor_v_Bagaragaza.pdf > (last accessed 7 January 2019). The Prosecutor v. Laurent Bucyibaruta (Decision on the Prosecutor’s Request for the Referral of Laurent Bucyibaruta’s Indictment to France), ICTR 2005-85-I, 20 November 2007 < http://www.unictr.org/sites/unictr.org/files/case-documents/ictr-05-85/trial-decisions/en/071120.pdf” > (last accessed 7 January 2019). The Prosecutor v. Wenceslas Munyeshyaka (Decision on the Prosecutor’s Request for the Referral of Wenceslas Munyeshyaka’s Indictment to France) ICTR-2005-87-I, 20 November 2007 < http://www.unictr.org/sites/unictr.org/files/case-documents/ictr-05-87/trial-decisions/en/071120.pdf > (last accessed 7 January 2019). It is also indicative that the Appeal Chamber of the ICTR in Bagaragaza Case rejected the Prosecutor’s request (as well as the request of the accused himself) for the transfer of the case to Norway with the justification that “Norway’s jurisdiction over Mr. Bagaragaza’s crimes would be exercised pursuant to legislative provisions dealing with the prosecution of ordinary crimes [... while] this provision delimits the Tribunal’s authority, allowing it only to refer cases where the state will charge and convict for those international crimes listed in its Statute”, 4, par. 16.
- 17.
Republic of Korea: proposal regarding articles 6 [9], 7 [6], UN Doc. A/CONF.183/C.1/L.6, 227-229 < http://legal.un.org/icc/rome/proceedings/E/Rome%20Proceedings_v3_e.pdf > (last accessed 7 January 2019).
- 18.
W. A. Schabas, The International Criminal Court: A Commentary on the Rome Statute (Oxford University Press, New York 2010) 281.
- 19.
Michail Vagias, The Territorial Jurisdiction of the International Criminal Court: Certain Contested Issues (PhD Thesis) (Bynkershoek Publishing, Amsterdam, 2011) 16, 74.
- 20.
See for instance P. Kirsch and D. Robinson, “Reaching Agreement at the Rome Conference in Antonio Cassese, Paolo Gaeta and John RWD Jones (eds) The Rome Statute of the International Criminal Court: A Commentary (Oxford, OUP 2002) 67-91.
- 21.
Michail Vagias, The Territorial Jurisdiction of the International Criminal Court: Certain Contested Issues (PhD Thesis) (Bynkershoek Publishing, Amsterdam 2011) 16, 74. Contra W. A. Schabas, The International Criminal Court: A Commentary on the Rome Statute (Oxford University Press, New York 2010), 285.
- 22.
Article 98 Rome Statute - Cooperation with respect to waiver of immunity and consent to surrender: 1. The Court may not proceed with a request for surrender or assistance which would require the requested State to act inconsistently with its obligations under international law with respect to the State or diplomatic immunity of a person or property of a third State, unless the Court can first obtain the cooperation of that third State for the waiver of the immunity. 2. The Court may not proceed with a request for surrender which would require the requested State to act inconsistently with its obligations under international agreements pursuant to which the consent of a sending State is required to surrender a person of that State to the Court, unless the Court can first obtain the cooperation of the sending State for the giving of consent for the surrender.
- 23.
Article 124 Rome Statute - Transitional Provision: Notwithstanding article 12, paragraphs 1 and 2, a State, on becoming a party to this Statute, may declare that, for a period of seven years after the entry into force of this Statute for the State concerned, it does not accept the jurisdiction of the Court with respect to the category of crimes referred to in article 8 when a crime is alleged to have been committed by its nationals or on its territory. A declaration under this article may be withdrawn at any time. The provisions of this article shall be reviewed at the Review Conference convened in accordance with article 123, paragraph 1.
- 24.
Michail Vagias, The Territorial Jurisdiction of the International Criminal Court: Certain Contested Issues (PhD Thesis) (Bynkershoek Publishing, Amsterdam 2011) 16, 74.
- 25.
This is the official name of the Code of Criminal Procedure of the International Criminal Court.
- 26.
A legal text in which the constitutive and the mens rea elements of a crime are analysed at length.
- 27.
P. Kirsch (2007) “The Role of International Criminal Court in Enforcing International Criminal Court” 22 Am. U. Int’l L. Rev. 541.
- 28.
E. Simeonidou-Kastanidou (2003) “The Legal Basis and the Limits of the International Criminal Court’s Jurisdiction” 51(3) Nomiko Vima 402 [in Greek].
- 29.
D. Gagas (1999) “Definitions of the International Criminal Court’s Crimes and the Extent of its Jurisdiction” 5 Poiniki Dikaiosini 482 [in Greek].
- 30.
This particular term was invented by Simpson, who attempts thus to describe the “… existence within an international society of a powerful elite of states whose superior status is recognised by minor powers as a political fact giving rise to the existence of certain constitutional privileges, rights and duties and whose relations with each other are defined by adherence to a rough principle of sovereign equality.” G. Simpson, Great Powers and Outlaw States (Cambridge: CUP 2004) 68.
- 31.
United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, 9th Plenary Meeting, UN Doc. A/CONF.183/SR.9, 122, par. 15 < http://legal.un.org/icc/rome/proceedings/E/Rome%20Proceedings_v2_e.pdf > (last accessed 7 January 2019).
- 32.
ibid 123 par. 37.
- 33.
ibid 124 par. 40.
- 34.
Ph. Kirsch and D. Robinson, “Reaching Agreement at the Rome Conference” in Antonio Cassese, Paolo Gaeta and John R W D Jones (eds) The Rome Statute of the International Criminal Court: A Commentary (Tome A, Oxford: OUP 2002) 83.
- 35.
S. Williams, “Article 12” in O. Triffterer (ed) Commentary on the Rome Statute of the International Criminal Court (Baden-Baden, Nomos, 1999) 39, fns. 6, 7.
- 36.
For a more thorough review of the matter see R. S. Lee “The Rome Conference and its Contribution to International Law” in R. S. Lee (ed) The International Criminal Court: The Making of the Rome Statute (The Hague: Kluwer Law International 1999) 29; A. Cassese (1999) “The Statute of the International Criminal Court: Some Preliminary Reflection” 10 EJIL 144-171, 159 and 171.
- 37.
A. Cassese, International Criminal Law (2nd edn, OUP, Oxford 2008) VIKTOR, 21, 160.
- 38.
The only rare exception being the referral of a situation from the UN Security Council under Chapter VII of the Charter and Article 13(b) ICCRSt.
- 39.
Hans-Peter Kaul, “Preconditions to the Exercise of Jurisdiction” in Α. Cassese, P. Gaeta and J. R. W. D. Jones, The Rome Statute of the International Criminal Court: A Commentary (OUP 2002, vol I) 612-614.
- 40.
United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, 9th Plenary Meeting, UN Doc. A/CONF.183/SR.9, 42, fn 24.
- 41.
Of course, it cannot be omitted in this chapter that the exercise of the ICC’s jurisdiction could thus dangerously escalate tensions in the international relations of neighbouring or non-states, as well as to having unforeseen consequences on international security and peace to such a degree that its omission in the final version of Article 12 ICCRSt is more of an advantage than a disadvantage. See for example the case of Adolph Eichmann, Term Adolf Eichmann, Encyclopedia BRITRANNICA <https://www.britannica.com/biography/Adolf-Eichmann> (last accessed 12 April 2019).
- 42.
Article 15 bis - Exercise of jurisdiction over the crime of aggression (State referral, proprio motu): 1. The Court may exercise jurisdiction over the crime of aggression in accordance with article 13, paragraphs (a) and (c), subject to the provisions of this article. 2. The Court may exercise jurisdiction only with respect to crimes of aggression committed one year after the ratification or acceptance of the amendments by thirty States Parties. 3. The Court shall exercise jurisdiction over the crime of aggression in accordance with this article, subject to a decision to be taken after 1 January 2017 by the same majority of States Parties as is required for the adoption of an amendment to the Statute. 4. The Court may, in accordance with article 12, exercise jurisdiction over a crime of aggression, arising from an act of aggression committed by a State Party, unless that State Party has previously declared that it does not accept such jurisdiction by lodging a declaration with the Registrar. The withdrawal of such a declaration may be affected at any time and shall be considered by the State Party within three years. 5. In 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. 6. Where the Prosecutor concludes that there is a reasonable basis to proceed with an investigation in respect of a crime of aggression, he or she shall first ascertain whether the Security Council has made a determination of an act of aggression committed by the State concerned. The Prosecutor shall notify the Secretary-General of the United Nations of the situation before the Court, including any relevant information and documents. 7. Where the Security Council has made such a determination, the Prosecutor may proceed with the investigation in respect of a crime of aggression. 8. Where no such determination is made within six months after the date of notification, the Prosecutor may proceed with the investigation in respect of a crime of aggression, provided that the Pre-Trial Division has authorized the commencement of the investigation in respect of a crime of aggression in accordance with the procedure contained in article 15, and the Security Council has not decided otherwise in accordance with article 16. 9. A determination of an act of aggression by an organ outside the Court shall be without prejudice to the Court’s own findings under this Statute. 10. This article is without prejudice to the provisions relating to the exercise of jurisdiction with respect to other crimes referred to in article 5.
- 43.
Article 15 ter - Exercise of jurisdiction over the crime of aggression (Security Council referral): 1. The Court may exercise jurisdiction over the crime of aggression in accordance with article 13, paragraph (b), subject to the provisions of this article. 2. The Court may exercise jurisdiction only with respect to crimes of aggression committed one year after the ratification or acceptance of the amendments by thirty States Parties. 3. The Court shall exercise jurisdiction over the crime of aggression in accordance with this article, subject to a decision to be taken after 1 January 2017 by the same majority of States Parties as is required for the adoption of an amendment to the Statute. 4. A determination of an act of aggression by an organ outside the Court shall be without prejudice to the Court’s own findings under this Statute. 5. This article is without prejudice to the provisions relating to the exercise of jurisdiction with respect to other crimes referred to in article 5.
- 44.
UN Security Council Resolution 780/1992, S/RES/780, 6 October 1992 < https://www.nato.int/ifor/un/u921006b.htm > (last accessed 7 January 2019); UN Security Council Resolution 955/1994, S/RES/955, 8 November 1994 < http://unscr.com/en/resolutions/doc/955 > last accessed 7 January 2019).
- 45.
According to Article 23 UN Charter, the Security Council consist of 15 members in total, of which five (China, France, Russia, United Kingdom and the United States of America) are permanent. According to Article 27(2) and (3) UN Charter, decisions shall be made by an affirmative vote of nine members, while permanent members have veto rights on all matters which are not procedural in nature. Finally, it is concluded from the combination of Articles 27(3) and 52(3) UN Charter, as well as of Chapter VI on the Pacific Settlement of Disputes, that a member state to the Security Council, if party to a dispute, must abstain from any vote related to said dispute.
- 46.
L Condorelli (1999) “La Cour Penale Internationale: Un Pas de Geant (Pourvu Qu’il Soit Accompli...)” 103 Revue Générale de Droit International Public 7, 16.
- 47.
The term ‘situation’ is usually used to refer to an area or a State where it appears that a number of crimes have been committed by an unknown number of perpetrators, i.e. to a number of different events dispersed through time and geographical area that require further investigation. According to the definition of Article 14(1) ICCRSt, Referral of a situation by a State Party: 1. A State Party may refer to the Prosecutor a situation in which one or more crimes within the jurisdiction of the Court appear to have been committed requesting the Prosecutor to investigate the situation for the purpose of determining whether one or more specific persons should be charged with the commission of such crimes.
- 48.
Article 13 ICCRSt - Exercise of jurisdiction: The Court may exercise its jurisdiction with respect to a crime referred to in article 5 in accordance with the provisions of this Statute if: (a) A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by a State Party in accordance with article 14; […] (c) The Prosecutor has initiated an investigation in respect of such a crime in accordance with article 15.
It goes without saying that the ICC’s Prosecutor can begin an investigation ex proprio motu, without a referral of any kind by a state party, if an event receives a lot of publicity or if he is otherwise informed of the commission of criminal actions that fall within the ICC’s jurisdiction, as for example can happen after receiving a letter from a citizen.
- 49.
A thorough analysis of the crime of aggression and the new articles of the Rome Statute can be found in 6th chapter of this book, p. 156.
- 50.
Article 15 bis (4) ICCRSt: The Court may, in accordance with article 12, exercise jurisdiction over a crime of aggression, arising from an act of aggression committed by a State Party, unless that State Party has previously declared that it does not accept such jurisdiction by lodging a declaration with the Registrar. The withdrawal of such a declaration may be affected at any time and shall be considered by the State Party within three years.
- 51.
Article 16 ICCRSt - Deferral of investigation or prosecution: No investigation or prosecution may be commenced or proceeded with under this Statute for a period of 12 months after the Security Council, in a resolution adopted under Chapter VII of the Charter of the United Nations, has requested the Court to that effect; that request may be renewed by the Council under the same conditions.
- 52.
Hans-Peter Kaul, “Preconditions to the Exercise of Jurisdiction” in Α. Cassese, P. Gaeta and J. R. W. D. Jones, The Rome Statute of the International Criminal Court: A Commentary vol. 1 (OUP 2002), 607.
- 53.
W. A. Schabas, The International Criminal Court: A Commentary on the Rome Statute (Oxford University Press, New York 2010), 283.
- 54.
M. Glasius, The International Criminal Court: A Global Civil Society Achievement (London, New York: Routledge, 2006) 61; Williams, “Article 12” in O. Triffterer (ed) Commentary on the Rome Statute of the International Criminal Court, (Baden-Baden, 1999) 341.
- 55.
List of the States Parties to the Rome Statute < https://asp.icc-cpi.int/en_menus/asp/states%20parties/Pages/the%20states%20parties%20to%20the%20rome%20statute.aspx > (last accessed 7 January 2019).
- 56.
W. A. Schabas, The International Criminal Court: A Commentary on the Rome Statute (Oxford University Press, New York 2010) 40, 283.
- 57.
Article 120 ICCRSt—Reservations: No reservations may be made to this Statute.
- 58.
Marko Milanovics, “The Territorial Scope of the Rome Statute” (EJIL: Talk, 11 August 2010) < http://www.ejiltalk.org/the-territorial-scope-of-the-rome-statute > last accessed 7 January 2019; William Schabas, “Territorial Declarations and the Rome Statute” (PhD Studies in Human Rights, 10 August 2010) < http://humanrightsdoctorate.blogspot.com/2010/08/territorial-declarations-and-rome.html > (last accessed 7 January 2019).
- 59.
Michail Vagias, The Territorial Jurisdiction of the International Criminal Court: Certain Contested Issues (PhD Thesis) (Bynkershoek Publishing, Amsterdam 2011) 198-209.
- 60.
For an analysis of the concept of effective control see Susan Power, “Re-engaging the Gaza Debate: The impact of Operation Cast Lead” (Intellectum Journal, 1 December 2009) < http://www.intellectum.org/articles/issues/intellectum6/en/ITL06p033045_Re-engaging%20the%20Gaza%20Debate%20-%20the%20Impact%20of%20Operation%20Cast%20Lead_Susan%20Rose%20Power.pdf > (last accessed 7 January 2019).
- 61.
W. A. Schabas, The International Criminal Court: A Commentary on the Rome Statute (Oxford University Press, New York 2010) 285.
- 62.
Term Six-Day War, Encyclopedia BRITRANNICA < https://www.britannica.com/event/Six-Day-War > (last accessed 7 January 2019).
- 63.
The United States, Cuba, and the Platt Amendment, 1901, US Department of State, Office of the Historian < https://2001-2009.state.gov/r/pa/ho/time/ip/86557.htm >; Lily Rothman, “Why US Controls Guantanamo Bay” The Times (London, 22 January 2015) < http://time.com/3672066/guantanamo-bay-history/ > (last accessed 7 January 2019).
- 64.
Elements of Crimes, footnote 34: The term “international armed conflict” includes military occupation. This footnote also applies to the corresponding element in each crime under article 8 (2) (a).
- 65.
K. Dormann et al, Elements of War Crimes under the Rome Statute of the International Criminal Court (Cambridge: CUP 2010) 203.
- 66.
W. A. Schabas, The International Criminal Court: A Commentary of the Rome Statute (New York: OUP 2010) 203.
- 67.
M. Cherif Bassiouni (ed.) Introduction to International Criminal Law (2nd edn, Martinus Nijhoff Publishers, Leiden 2013) 169.
- 68.
Despite Vagias’ view, footnote 34 of the Elements of Crimes applies not only to the case of art. 8(2)(a) ICCRSt, as explicitly mentioned, but also to the case of art. 8(2)(b) ICCRSt which refers to “other serious violations of the laws and customs applicable in international armed conflicts”. Michail Vagias, The Territorial Jurisdiction of the International Criminal Court: Certain Contested Issues (PhD Thesis) (Bynkershoek Publishing, Amsterdam 2011), p. 198. This view is in agreement with the ICC’s jurisprudence as analysed below.
- 69.
The Prosecutor v. Thomas Lubanga Dyilo, Public Redacted Version with Annex I, Decision on the Confirmation of Charges, ICC-01/04-01/06, 29 January 2007 < https://www.icc-cpi.int/pages/record.aspx?uri=247813 > (last accessed 7 January 2019) 72.
- 70.
Article 2. In addition to the provisions which shall be implemented in peacetime, the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them. The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance. Although one of the Powers in conflict may not be a party to the present Convention, the Powers who are parties thereto shall remain bound by it in their mutual relations. They shall furthermore be bound by the Convention in relation to the said Power, if the latter accepts and applies the provisions thereof.
- 71.
The Prosecutor v. Thomas Lubanga Dyilo, paras. 72-73.
- 72.
The Prosecutor v. Duško Tadić, Judgement, IT-94-1-Α, 15 July 1999 < http://www.icty.org/x/cases/tadic/acjug/en/tad-aj990715e.pdf > (last accessed 7 January 2019).
- 73.
The Prosecutor v. Thomas Lubanga Dyilo, paras. 73-74.
- 74.
ibid, para 73. Essentially, this part constitutes a replication of the ICTY Appeal Chamber’s decision on Tadić. See The Prosecutor v. Duško Tadić, para 34.
- 75.
Michail Vagias, The Territorial Jurisdiction of the International Criminal Court: Certain Contested Issues (PhD Thesis) (Bynkershoek Publishing, Amsterdam 2011) 199.
- 76.
O. Bekou (2008) “Prosecutor v. Thomas Lubanga Dyilo, Decision on the Confirmation of Charges” Human Rights Law Review 8:343, 347-8; Κ. Ambos, “The first confirmation decision of the International Criminal Court: Prosecutor v. Thomas Lubanga Dyilo” < https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1972149 > (last accessed 7 January 2019).
- 77.
V. Tsilonis “Thomas Lubanga Dyilo: The Unstable Step of the International Criminal Court” in Aggeliki Pitsela (ed) Criminological Quests: Honorary Volume for Professor Stergios Alexiadis (Thessaloniki, Sakkoulas 2010) [in Greek].
- 78.
See a thorough analysis of their actions in C. Kyle, S. McEwan, J. DeFelice, American Sniper: Memorial Edition (2nd edn, New York, Harper Collins 2014).
- 79.
Article 12(2)(b) ICCRSt: … (b) The State of which the person accused of the crime is a national.
- 80.
Official UNESCO World Heritage List < http://whc.unesco.org/en/list/?delisted=1 > (last accessed 7 January 2019).
- 81.
In the international literature, it is referred to either as ISIS or ISIL. The last letter signifies Syria in the first case and Levant in the second. To simply and unify the aforementioned acronyms the abbreviation IS (Islamic State) is also used.
- 82.
Nonetheless, Vagias boldly puts forward an opposing view in his published PhD thesis, invoking predominantly reasons of political convenience and human rights protection which unfortunately have no legal foundations in the ICCRSt and thus do not convince the author. See Michail Vagias, The Territorial Jurisdiction of the International Criminal Court: Certain Contested Issues (PhD Thesis) (Bynkershoek Publishing, Amsterdam 2011) 16, 206-210.
- 83.
Hamas announces ceasefire in Gaza (BBC News, 18 September 2009) < http://news.bbc.co.uk/2/hi/7836205.stm > (last accessed 7 January 2019); Steven Erlanger, “Israel Declares Cease-Fire; Hamas Says It Will Fight On” (The New York Times, 17 January 2009) < http://www.nytimes.com/2009/01/18/world/middleeast/18mideast.html?hp > (last accessed 2019).
- 84.
Q&A: Gaza conflict (BBC News, 18 January 2009) < http://news.bbc.co.uk/2/hi/middle_east/7818022.stm > (last accessed 7 January 2019).
- 85.
Operation ‘Cast Lead’ was the first ground invasion of “long duration” in the Gaza Strip after the ‘Disengagement Plan’ which was implemented in September 2005 and according to which Israel vacated all Israeli settlements in Gaza, withdrew its military forces and unilaterally declared an end of the forty-year occupation of the Gaza Strip. See the online archives of the Israeli Ministry of Foreign Affairs regarding the notorious “Disengagement Plan”: < https://mfa.gov.il/mfa/foreignpolicy/peace/guide/pages/israeli%20disengagement%20plan%2020-jan-2005.aspx > (last accessed 7 January 2019).
- 86.
See also Susan Power, “Re-engaging the Gaza Debate – the impact of Operation Cast Lead” (Intellectum Journal, 1 December 2009) < http://www.intellectum.org/articles/issues/intellectum6/en/ITL06p033045_Re-engaging%20the%20Gaza%20Debate%20-%20the%20Impact%20of%20Operation%20Cast%20Lead_Susan%20Rose%20Power.pdf > (last accessed 7 January 2019)
- 87.
The Nigerian Ambassador and President of the Council, Martin Ihoeghian Uhomoibhi, appointed former ICTFY chief prosecutor Richard J. Goldstone, to head the independent fact-finding mission. Christine Chinkin, Professor of International Law at the London School of Economics and Political Science, Hina Jilani, former Special Representative of the Secretary-General on Human Rights Defenders and Desmond Travers, a former colonel in the Irish Defence Forces and member of the Board of Directors of the Institute for International Criminal Investigations were also members of this mission.
- 88.
UNHR Resolution A/HRC/RES/S-9/1 of 12 January 2009 < https://unispal.un.org/DPA/DPR/unispal.nsf/0/404E93E166533F828525754E00559E30 > (last accessed 7 January 2019).
- 89.
Human Rights in Palestine and Other Occupied Arab Territories: Report of the United Nations Fact Finding Mission on the Gaza Conflict (15 September 2009) < https://www.un.org/ruleoflaw/blog/document/human-rights-in-palestine-and-other-occupied-arab-territories-report-of-the-united-nations-fact-finding-mission-on-the-gaza-conflict/ > (last accessed 7 January 2019). Among the selected “targets” were the Palestinian Legislative Council and the Gaza main prison as well as six policy facilities, a fact that led, along with other events, to the murder of 240 Palestinian police officers in total. See para 32-33 of the Report.
- 90.
ibid 523 para 1680-1681.
- 91.
Article 13(b) ICCRSt: “A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by the Security Council acting under Chapter VII of the Charter of the United Nations.”
- 92.
Report of the United Nations Fact Finding Mission on the Gaza Conflict (15 September 2009) paras. 1611-1632, 1763, 1765, 1766. Israel is unfortunately not renowned for the protection of the human rights of Palestinians. See Irit Ballas (2010) “The lack of investigation and punishment of torture in Israel”, Intellectum 36 < http://www.intellectum.org/articles/issues/intellectum7/en/Irit%20Ballas_The%20lack%20of%20investigation%20of%20torture%20in%20Israel_Intellectum7.pdf > (last accessed 7 January 2019), where it is stated that none of the 600 complaints concerning the use of torture and ill treatment of Palestinians by Israel’s General Security Service (Shin Bet), submitted in the past years by PCATI and a number of other human rights organisations, have resulted in the initiation of criminal investigations against the alleged torturers.
- 93.
Report of the United Nations Fact Finding Mission on the Gaza Conflict (15 September 2009) paras. 1611-1612.
- 94.
ibid para 1620.
- 95.
ibid paras. 1622-1626.
- 96.
ibid para 1629.
- 97.
Report of the United Nations Fact Finding Mission on the Gaza Conflict (15 September 2009) para 1632: “The Prosecutor may determine that for the purposes of Article 12, paragraph 3, under customary international law, Palestine qualifies as ‘a state’.”; para 1767: “1767. To the Prosecutor of the International Criminal Court: With reference to the declaration under article 12 (3) received by the Office of the Prosecutor of the ICC from the Government of Palestine, the Mission considers that accountability for victims and the interests of peace and justice in the region require that the legal determination should be made by the Prosecutor as expeditiously as possible”.
- 98.
Possibly the most important legal discussion is between Yuval Shany, Yaël Ronen and Alain Pellet in 2010, which can be found in the Oxford Journal of International Criminal Justice (issues 1, 2 and 4). It continues with Malcom’s Shaw study of 2011 in the same journal (issue 1). See also the discussion in the UCLA forum at < http://uclalawforum.com/gaza > (last accessed 7 January 2019).
- 99.
Palestinian National Authority, Ministry of Justice, “Declaration recognising the Jurisdiction of the International Criminal Court” 21 January 2009 < https://www.icc-cpi.int/NR/rdonlyres/74EEE201-0FED-4481-95D4-C8071087102C/279777/20090122PalestinianDeclaration2.pdf > (last accessed 7 January 2019).
- 100.
A brief letter sent by the ICC Registrar to the Palestinian National Authority dated 23 January 2009 stated that the registration of the declaration did not signify acceptance of the ICC’s jurisdiction. ICC Registrar, Letter to the Palestinian National Authority, 23 January 2009, 2009/404/SA/LASS, <https://www.icc-cpi.int/NR/rdonlyres/74EEE201-0FED-4481-95D4-C8071087102C/279778/20090123404SALASS2.pdf> (last accessed 8 March 2019).
- 101.
Article 12(3) ICCRSt - Preconditions to the exercise of jurisdiction: … 3. If the acceptance of a State which is not a Party to this Statute is required under paragraph 2, that State may, by declaration lodged with the Registrar, accept the exercise of jurisdiction by the Court with respect to the crime in question. The accepting State shall cooperate with the Court without any delay or exception in accordance with Part 9.
- 102.
The possibility of Palestinian victims with a double nationality was thoroughly excluded from the discussion as a dangerous parameter which could further complicate the case legally. Nonetheless, as of February 2006, the ICC’s Prosecutor has indirectly yet clearly expressed his objection to conducting an investigation into alleged crimes in Iraq and Venezuela among others with reference to the criterion of the victims’ double nationality. See OTP Response to Communications Received Concerning Iraq < https://www.icc-cpi.int/NR/rdonlyres/04D143C8-19FB-466C-AB77-4CDB2FDEBEF7/143682/OTP_letter_to_senders_re_Iraq_9_February_2006.pdf > (last accessed 7 January 2019); OTP Response to Communications Received Concerning Venezuela < https://www.icc-cpi.int/NR/rdonlyres/4E2BC725-6A63-40B8-8CDC-ADBA7BCAA91F/143684/OTP_letter_to_senders_re_Venezuela_9_February_2006.pdf > (last accessed 7 January 2019).
- 103.
Y. Ronen (2010) “ICC Jurisdiction over Acts Committed in the Gaza Strip: Article 12(3) of the ICC Statute and Non-state Entities” 8 JICJ 3, 26; Y. Shany (2010) “In Defence of Functional Interpretation of Article 12(3) of the Rome Statute: A Response to Yael Ronen” 8 JICJ 329, 337. However, with his 2014 article, Ronen appears to accept that Palestine is an independent State: Y. Ronen (2014) “Israel, Palestine and the ICC: Territory Uncharted but Not Unknown” 12 JICJ 7.
- 104.
Israeli-Palestinian Interim Agreement (“Oslo II”) < https://www.jewishvirtuallibrary.org/jsource/Peace/interimtoc.html > (last accessed 7 January 2019).
- 105.
The Israeli-Palestinian Interim Agreement on the West Bank and the Gaza Strip, Annex IV: Protocol Concerning Legal Affairs < https://www.jewishvirtuallibrary.org/jsource/Peace/iaannex4.html > (last accessed 7 January 2019).
- 106.
Y. Shany (2010) “In Defence of Functional Interpretation of Article 12(3) of the Rome Statute: A Response to Yael Ronen” 8 JICJ 329, 341.
- 107.
K. Ambos (2014) “Palestine, UN Non-Member Observer Status and ICC Jurisdiction, Expert Statement Given at the ‘Roundtable on Legal Aspects of the Question of Palestine Convened by the Committee on the Exercise of the Inalienable Rights of the Palestinian People’” UNOG 24-25 April 2014 < https://www.ejiltalk.org/palestine-un-non-member-observer-status-and-icc-jurisdiction > (last accessed 7 January 2019).
- 108.
Valentina Azarov, Chantal Meloni (2014) “Disentangling the Knots: A Comment on Ambos’ ‘Palestine, ‘Non-Member Observer’ Status and ICC Jurisdiction’” < https://www.ejiltalk.org/disentangling-the-knots-a-comment-on-ambos-palestine-non-member-observer-status-and-icc-jurisdiction/ > (last accessed 7 January 2019). It must be noted, however, that their article criticises Kai Ambos’s views in general.
- 109.
Y. Ronen (2010) “ICC Jurisdiction over Acts Committed in the Gaza Strip: Article 12(3) of the ICC Statute and Non-state Entities” 8 JICJ 3, 23.
- 110.
K. Ambos (2014) “Palestine, UN Non-Member Observer Status and ICC Jurisdiction, Expert Statement Given at the ‘Roundtable on Legal Aspects of the Question of Palestine Convened by the Committee on the Exercise of the Inalienable Rights of the Palestinian People’” UNOG 24-25 April 2014.
- 111.
Alain Pellet (2010) “The Effects of Palestine’s Recognition of the International Criminal Court’s Jurisdiction” < https://www.icc-cpi.int/NR/rdonlyres/D3C77FA6-9DEE-45B1-ACC0-B41706BB41E5/281927/PelletENGCLEAN1.pdf > (last accessed 7 January 2019).
- 112.
Co-signed by: Georges Abi-Saab, M. Cherif Bassiouni, Rafaâ Ben Achour, Phon Van den Biesen, Michael Bohlander, Laurence Boisson de Chazournes, Jorge Cardona Llorens, Monique Chemillier-Gendreau, Luigi Condorelli, Benedetto Conforti, Vojin Dimitrijevic, John Dugard, Paula Escarameia, Marina Eudes, Ahmed S. El Kosheri, Salifou Fomba, Mathias Forteau, Francesco Francioni, Zdzislaw W. Galicki, Habib Ghérari, Vera Gowlland-Debbas, Emmanuel Jos, Franck Latty, Ahmed Mahiou, Djamchid Momtaz, Daniel Müller, Jordan Paust, Paolo Picone, Antonio Remiro Brotons, François Rigaux, Hélène Ruiz-Fabri, Jean Salmon, William A. Schabas, Nico Schrijver, Linos-Alexander Sicilianos, Habib Slim, Jean-Marc Sorel, Sandra Szurek, Paul Tavernier, Bérangère Taxil.
- 113.
Alain Pellet (2010) “The Palestinian Declaration and the Jurisdiction of the International Criminal Court” Journal of International Criminal Justice 8 (2010), 981.
- 114.
ibid 983, fn 4.
- 115.
Official website of the Permanent Observer Mission of the State of Palestine to the UN < http://palestineun.org/about-palestine/diplomatic-relations/ > (last accessed 7 January 2019).
- 116.
The sovereign State of Palestine has also been recognised by the Sahrawi Arab Democratic Republic and the Holy See, neither of which is a member state to the UN. Thus, the aforementioned percentage refers to the 137 UN states which have recognised the sovereign state of Palestine. UNGA A/RES/67/19 “Status of Palestine in the United Nations” 4 December 2012 <https://unispal.un.org/DPA/DPR/unispal.nsf/0/19862D03C564FA2C85257ACB004EE69B> (last accessed 7 January 2019); ‘Vatican upgrades recognition of ‘Palestinian state’ in new treaty’, i24news (13 May 2015) <https://archive.is/20150801162137/http://www.i24news.tv/en/news/israel/politics/71034-150513-netanyahu-government-says-wants-peace-with-palestinians> (last accessed 19 April 2019).
- 117.
The purpose of the campaign was to recognise Palestine as the 194th UN member state < https://www.un.org/press/en/2012/ga11317.doc.htm > (last accessed 7 January 2019).
- 118.
Y. M. Ibrahim, “P.L.O. Proclaims Palestine to Be an Independent State; Hints at Recognizing Israel” (The New York Times, 15 November 1988) < https://www.nytimes.com/1988/11/15/world/plo-proclaims-palestine-to-be-an-independent-state-hints-at-recognizing-israel.html > (last accessed 7 January 2019).
- 119.
A. Zimmermann (2013) “Palestine and the International Criminal Court Quo Vadis” 11 JICL 303.
- 120.
UNGA Resolution 377A (V) “Uniting for Peace”, 3 November 1950 < http://www.un.org/en/sc/repertoire/otherdocs/GAres377A(v).pdf > (last accessed 7 January 2019); Christian Tomuschat (2008) “Uniting for Peace” UN Audiovisual Library of International Law < http://legal.un.org/avl/pdf/ha/ufp/ufp_e.pdf > (last accessed 7 January 2019).
- 121.
UNGA A/RES/67/19 “Status of Palestine in the United Nations” 4 December 2012 < https://unispal.un.org/DPA/DPR/unispal.nsf/0/19862D03C564FA2C85257ACB004EE69B > (last accessed 7 January 2019).
- 122.
ICJ, Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion, 22 July 2010, para 51.
- 123.
This approach is quite common in international law. That is why the texts of many international conventions include phrases such as “for the purposes of this convention”. It was also followed by the ICC in order to determine whether the UN has a legal standing in international law. ICJ, Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion, 11 Απριλίου 1949, ICJ Reports (1949), σελ. 174-220.
- 124.
P.M. Dupuy, “L’ unité de l’ ordre juridique international: cours general de droit international publique” in Collected Courses of the Hague Academy of International Law vol. 297 (Martinus Nijhoff Publishers, 2002) 108-112.
- 125.
Errol Mendes, “Statehood and Palestine for the Purposes of Article 12(3) of the ICC Statute: a Contrary Perspective” UCLA Forum 44 <http://uclalawforum.com/media/background/gaza/2010-03-30_Mendes-Memo.pdf> (last accessed 24 October 2019).
- 126.
Convention on the Rights of Persons with Disabilities <https://www.un.org/development/desa/disabilities/convention-on-the-rights-of-persons-with-disabilities/convention-on-the-rights-of-persons-with-disabilities-2.html> (last accessed 24 October 2019).
- 127.
Agreement establishing the World Trade Organisation <https://www.wto.org/english/docs_e/legal_e/04-wto.pdf> (last accessed 24 October 2019).
- 128.
Convention on International Liability for Damage Caused by Space Objects < https://www.faa.gov/about/office_org/headquarters_offices/ast/media/Conv_International_Liab_Damage.pdf> (last accessed 24 October 2019).
- 129.
ECJ, Advocate General Opinion, 13 December 2001, C-482/99 France v. European Commmission [2002] ECR I-04397 para 56.
- 130.
Drozd and Janousek v. France and Spain, ECHR, 26 June 1992 paras. 86-89 <https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-57774%22]}> (last accessed 24 October 2019).
- 131.
Emilio Agustín Maffezini and The Kingdom of Spain, International Centre for Settlement of Investment Disputes (Washington, D.C.), Case No. Arb/97/7, Decision of the Tribunal on Objections to Jurisdiction, 25 January 2000, para 75 <http://www.italaw.com/cases/641> (last accessed 24 October 2019).
- 132.
Mathias Forteau, “L’État selon le droit International: une figure à géométrie variable?” 2007 (4) RGDIP 737, 762-763.
- 133.
Decision on the Defence Motion For Interlocutory Appeal On Jurisdiction, para 18, 2 October 1995 <https://www.icty.org/x/cases/tadic/acdec/en/51002.htm> (last accessed 24 October 2019).
- 134.
Article 18 - Preliminary rulings regarding admissibility
1. When a situation has been referred to the Court pursuant to article 13 (a) and the Prosecutor has determined that there would be a reasonable basis to commence an investigation, or the Prosecutor initiates an investigation pursuant to articles 13 (c) and 15, the Prosecutor shall notify all States Parties and those States which, taking into account the information available, would normally exercise jurisdiction over the crimes concerned. The Prosecutor may notify such States on a confidential basis and, where the Prosecutor believes it necessary to protect persons, prevent destruction of evidence or prevent the absconding of persons, may limit the scope of the information provided to States.
Article 19 - Challenges to the jurisdiction of the Court or the admissibility of a case
1. The Court shall satisfy itself that it has jurisdiction in any case brought before it. The Court may, on its own motion, determine the admissibility of a case in accordance with article 17.
- 135.
Including the ICJ, according to Article 36 of its Statute <https://www.icj-cij.org/en/statute> (last accessed 24 October 2019).
- 136.
See the Court’s official website at <http://en.african-court.org/> (last accessed 7 July 2019).
- 137.
See the Court’s official website at <http://www.corteidh.or.cr/index.cfm> (last accessed 24 October 2019).
- 138.
Article 13 (b) ICCRSt: A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by the Security Council acting under Chapter VII of the Charter of the United Nations.
- 139.
Hans-Peter Kaul, “Preconditions to the Exercise of Jurisdiction” in Α. Cassese, P. Gaeta, J. R. W. D. Jones, The Rome Statute of the International Criminal Court: A Commentary vol. 1 (OUP 2002) 583-584.
- 140.
Article 12(1) ICCRSt: A State which becomes a Party to this Statute thereby accepts the jurisdiction of the Court with respect to the crimes referred to in article 5.
- 141.
Article 13 ICCRSt - Exercise of jurisdiction: The Court may exercise its jurisdiction with respect to a crime referred to in article 5 in accordance with the provisions of this Statute if: (a) A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by a State Party in accordance with article 14; (b) A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by the Security Council acting under Chapter VII of the Charter of the United Nations; or (c) The Prosecutor has initiated an investigation in respect of such a crime in accordance with article 15.
- 142.
Article 124 ICCRSt - Transitional Provision: Notwithstanding article 12, paragraphs 1 and 2, a State, on becoming a party to this Statute, may declare that, for a period of seven years after the entry into force of this Statute for the State concerned, it does not accept the jurisdiction of the Court with respect to the category of crimes referred to in article 8 when a crime is alleged to have been committed by its nationals or on its territory. A declaration under this article may be withdrawn at any time. The provisions of this article shall be reviewed at the Review Conference convened in accordance with article 123, paragraph 1.
- 143.
United Nations 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, Volume Β para 52-54 <http://legal.un.org/icc/rome/proceedings/E/Rome%20Proceedings_v2_e.pdf> (last accessed [date]).
- 144.
Hans-Peter Kaul, “Preconditions to the Exercise of Jurisdiction” in Α. Cassese, P. Gaeta, J. R. W. D. Jones, The Rome Statute of the International Criminal Court: A Commentary (OUP 2002, vol I) 606.
- 145.
Article 121(5) ICCRSt: Any amendment to articles 5, 6, 7 and 8 of this Statute shall enter into force for those States Parties which have accepted the amendment one year after the deposit of their instruments of ratification or acceptance. In respect of a State Party which has not accepted the amendment, the Court shall not exercise its jurisdiction regarding a crime covered by the amendment when committed by that State Party’s nationals or on its territory.
- 146.
Article 5 (2) ICCRSt: The Court shall exercise jurisdiction over the crime of aggression once a provision is adopted in accordance with articles 121 and 123 defining the crime and setting out the conditions under which the Court shall exercise jurisdiction with respect to this crime. Such a provision shall be consistent with the relevant provisions of the Charter of the United Nations.
- 147.
Article 121(4) ICCRSt: Except as provided in paragraph 5, an amendment shall enter into force for all States Parties one year after instruments of ratification or acceptance have been deposited with the Secretary-General of the United Nations by seven-eighths of them.
- 148.
A more thorough analysis of this issue can be found in the relevant chapter on the crime of aggression. Obviously, a State that does not accept the ICC’s jurisdiction over the crime of aggression is primarily interested in the case of its nationals who may be considered perpetrators of the crime of aggression in foreign territories and not in the case of a crime of aggression committed on its territory, since then that State would obviously be the victim of the aggressive behaviour of the forces of an enemy State or States.
- 149.
Obviously, the legal consequences of such a statement and whether such a statement is valid or not is another legal issue. The opposing argument could be the fact that when the new state party validated the ICCRSt, it was certainly well-aware that in the immediate future there would be new, already legally initiated amendments to the ICCRSt.
- 150.
Press Release: Palestine declares acceptance of ICC jurisdiction since 13 June 2014, 05/01/2015, ICC-CPI-20150105-PR1080 < https://www.icc-cpi.int//Pages/item.aspx?name=pr1080 > (last accessed 7 January 2019).
- 151.
Declaration Accepting the Jurisdiction of the International Criminal Court, 31 December 2014 <https://www.icc-cpi.int/iccdocs/PIDS/press/Palestine_A_12-3.pdf > (last accessed 7 January 2019).
- 152.
Press Release: The State of Palestine accedes to the Rome Statute, 7 January 2015 < https://www.icc-cpi.int//Pages/item.aspx?name=pr1082_2 > (last accessed 7 January 2019).
- 153.
Press Release: The Prosecutor of the International Criminal Court, Fatou Bensouda, opens a preliminary examination of the situation in Palestine, 16 January 2015 < https://www.icc-cpi.int//Pages/item.aspx?name=pr1083 > (last accessed 7 January 2019).
- 154.
“Israel Threatens to Liquidate International Criminal Court (ICC)” (Veterans Today, 3 September 2018) < https://www.veteranstoday.com/2015/01/16/israel-threatens-liquidate-international-criminal-court-icc/ > (last accessed 7 January 2019); Thomas Escritt, Dan Williams, “Israel Lobbies Foreign Powers to Cut ICC Funding” (Reuters, 18 January 2015) < https://www.reuters.com/article/us-icc-palestinians-israel/israel-lobbies-foreign-powers-to-cut-icc-funding-idUSKBN0KR06720150118 > (last accessed 7 January 2019).
- 155.
Daphné Richemond-Barak (2015) “Doubly Duty at the ICC” EJIL Analysis < https://www.ejiltalk.org/double-duty-at-the-icc/ > (last accessed 7 January 2019).
- 156.
Situation on Registered Vessels of Comoros, Greece and Cambodia Article 53(1) Report, 06-11-2014 < http://www.icc-cpi.int/iccdocs/otp/OTP-COM-Article_53%281%29-Report-06Nov2014Eng.pdf > (last accessed 7 January 2019); Report on Preliminary Examination Activities 2014 < https://www.icc-cpi.int/iccdocs/otp/OTP-Pre-Exam-2014.pdf > (last accessed 7 January 2019).
- 157.
Decision Pursuant to Article 15 of the Rome Statute on the Authorisation of an Investigation into the Situation in the Republic of Côte d’Ivoire, ICC-02/11-14 (3 October 2011) 73 para 180 <https://www.legal-tools.org/doc/7a6c19/pdf/ > (last accessed 7 January 2019).
- 158.
ibid 72 para 179.
- 159.
Declaration Accepting the Jurisdiction of the International Criminal Court, 31 December 2014 <https://www.icc-cpi.int/iccdocs/PIDS/press/Palestine_A_12-3.pdf > (last accessed 7 January 2019).
- 160.
M. Patel, O. Watson, Br. Parker (2015) “Operation Protective Edge: A War Waged on Gaza’s Children” Defence for Children International Palestine < https://issuu.com/dcips/docs/ope.awarwagedonchildren.160415 > (last accessed 7 January 2019). This operation, which was the sixth military operation at the Gaza Strip during an eight-year period and lasted a total of 50 days (from 8 July to 26 August 2014), resulted in the deaths of 2220 Palesthinians, 1492 of whom were civilians and 547 children.
- 161.
Decision Pursuant to Article 15 of the Rome Statute on the Authorisation of an Investigation into the Situation in the Republic of Côte d’Ivoire, ICC-02/11-14 (3 October 2011) 72 para 179. The definition of the term “contextual elements” is provided in page 13 para 27: “27. Under Article 7(1) of the Statute, a crime against humanity involves any of the specified acts that are listed (“underlying acts”) when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack (‘contextual elements’).”
- 162.
T. Kramer, “‘Brother’s Keeper’ Operation Divides Palestinians”, Deutsche Welle < https://www.dw.com/en/brothers-keeper-operation-divides-palestinians/a-17728780 > (last accessed 7 January 2019).
- 163.
It is worth mentioning that this fundamental criminal law principle is also stipulated in Article 24 ICCRSt. Article 24 - Non-retroactivity ratione personae: 1. No person shall be criminally responsible under this Statute for conduct prior to the entry into force of the Statute. 2. In the event of a change in the law applicable to a given case prior to a final judgement, the law more favourable to the person being investigated, prosecuted or convicted shall apply. Therefore, the aforementioned analysis of the conflict between the legal principles of Articles 12(3) and 24 ICCRSt is of great theoretical and practical interest.
- 164.
S. Dana (2009) “Beyond Retroactivity to Realizing Justice: A Theory on the Principle of Legality in International Criminal Law Sentencing” 99: 4 The Journal of Criminal Law and Criminology 857. In this extremely interesting study, Dana divides the nullum crimen nulla poena sine lege principle into two distinct principles (nullum crime since lege and nulla poena sine lege), focusing on the second one and adding that this principle definitely has to be interpreted as nulla poena sine praevia lege poenali. Moreover, she thoroughly analyses Article 23 ICCRSt, which may constitute some progress in the implementation of international criminal law thus far, but still presents some important problems. Compare also Cassese who in the Tadić Case before the ICTFY in 1999 had admitted that even though the nulla poena sine praevia lege poenali principle is fundamental for most national criminal legal orders, it is “still inapplicable in international criminal law”. The Prosecutor v. Duško Tadić (Appeal Judgement) IT-94-1-A, International Criminal Tribunal for the former Yugoslavia (ICTY), 15 July 1999.
- 165.
On whether this fundamental principle was violated in the Nuremberg and Tokyo Trials see V. Tsilonis, ‘H Διεθνής Ποινική Δικαιοσύνη κατά το Πρώτο Μισό του Εικοστού Αιώνα’ [International Criminal Justice during the first half of the 20thCentury] in Τιμητικός Τόμος Χριστόφορου Δ. Αργυρόπουλου [Essays in Honour of Christophoros D. Argiropoulos] (Criminal Law Practitioners’ Association - Nomiki Bibliothiki, Athens 2016) 385.
- 166.
The Case of the S.S. Lotus, ICJ, Series-A.- No. 10, 7 September 1927, 19 < https://www.icj-cij.org/files/permanent-court-of-international-justice/serie_A/A_10/30_Lotus_Arret.pdf > (last accessed 7 January 2019).
- 167.
L. Reydams, Universal Jurisdiction: International and Municipal Legal Perspectives (Oxford: OUP 2004) 21-22.
- 168.
In legal theory, the principle of territorial sovereignty has two aspects: a ‘subjective aspect’ and an ‘objective aspect’. Its ‘subjective aspect’ includes crimes that are physically committed within a state’s territorial borders, while its ‘objective aspect’ includes crimes that take effect within its borders even if the perpetrator performs the act outside of its borders. A. J. Colangelo (2009) “Double Jeopardy and Multiple Sovereigns: A Jurisdictional Theory” 86 Wash. U. L. Rev. 769, 792. For instance, the “sabotage” of power lines which took place in November 2015 in the territory of Ukraine, causing a long blackout in the now independent territory of Crimea, is a notable example of the application of the ‘objective territorial’ principle. A. Luhn, “Crimea Declares State of Emergency After Power Lines Attacked” (London, The Guardian, 22 November 2015) < https://www.theguardian.com/world/2015/nov/22/crimea-state-of-emergency-power-lines-attacked > (last accessed 7 January 2019).
- 169.
Redress-FIDH, Extraterritorial Jurisdiction in the European Union: A Study of the Laws and Practice in the 27 Member States of the European Union (Redress-FIDH, 2010) 17-18.
- 170.
D. Ireland-Piper, “Extraterritorial Criminal Jurisdiction: Does the Long Arm of the Law Undermine the Rule of Law?” Melbourne Law School Publications < https://law.unimelb.edu.au/__data/assets/pdf_file/0007/1687246/Ireland-Piper.pdf > (last accessed 7 January 2019).
- 171.
C. L. Blakesley and D. E. Stigall (2007) “The Myopia οf U.S. v. Martinelli: Extraterritorial Jurisdiction in the 21st Century” 39 Geo. Wash. Int’l L. Rev. 1, 8-13, 20-21. A tragic exception is the 2005 Martinelli case, regarding the crime of child pornography: United States v. Christopher P. Martinelli, U.S. Court of Appeals for the Armed Forces, 62 M.J. 52, (2005).
- 172.
J. A. Zerk (2010) “Extraterritorial Jurisdiction: Lessons for the Business and Human Rights Sphere from Six Regulatory Areas” Working Paper No 59, Harvard Corporate Social Responsibility Initiative, 8 < https://sites.hks.harvard.edu/m-rcbg/CSRI/publications/workingpaper_59_zerk.pdf > (last accessed 7 January 2019).
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Hans-Peter Kaul, “Preconditions to the Exercise of Jurisdiction” in Α. Cassese, P. Gaeta, J. R. W. D. Jones, The Rome Statute of the International Criminal Court: A Commentary vol. 1 (OUP 2002) 610.
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As already analysed above with regards to Article 12 ICCRSt.
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‘Nationality’ is essentially an attribute and constitutes a non-legal connection of a person with a nation. For that reason, those persons who live outside their native country may be called expatriates and/or foreigners. It is possible for foreigners to be a Greek citizens as long as they have Greek citizenship, while the opposite may also be true (a Greek national may be a foreigner if he does not have Greek citizenship. Βλ. Εγκύκλιος του Υπουργείου Εσωτερικών, Φ.82215/18303, Παροχή διευκρινίσεων σχετικά με τον εννοιολογικό προσδιορισμό των όρων «ιθαγένεια», «υπηκοότητα» και «εθνικότητα» 09-07-2013, http://www.ypes.gr/UserFiles/f0ff9297-f516-40ff-a70eeca84e2ec9b9/eggr_f_82215_090713.pdf, last accessed 3 December 2015.
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1954 Convention relating to the Status of Stateless Persons < http://www.unhcr.org/ibelong/wp-content/uploads/1954-Convention-relating-to-the-Status-of-Stateless-Persons_ENG.pdf > (last accessed 7 January 2019).
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1961 Convention on the Reduction of Statelessness < http://www.unhcr.org/ibelong/wp-content/uploads/1961-Convention-on-the-reduction-of-Statelessness_ENG.pdf > (last accessed 7 January 2019).
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This creates a number of issues for domestic law, since the Australian Penal Code of 1995, for instance, considers sexual intercourse with a minor under 16 years old or a “young person” with whom a relationship of trust or authority exists a criminal offence. At the same time, the UN Convention on the Rights of the Child considers a child a person under 18 years of age, but on this matter, there is a great lack of cohesion among the penal codes of States, since globally in 2009 the age of legal consent in sexual acts ranged from 12 to 18 years of age. Thus, for example, if a permanent resident of Australia, who is at the same time a citizen of the Philippines, has sexual intercourse with a 12 year-old during his visit to the Philippines, they could be criminally prosecuted in Australia, despite the fact that the act would be legal under Philippine law where the age for legal consent is 12 years old. See World Population Review, Age of Consent by Country 2019 <http://worldpopulationreview.com/countries/countries-by-age-of-consent/> (last accessed 12 April 2019).
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An indication of this is that this matter was not mentioned during the preparatory talks that preceded the establishment of the ICC during the Conference of Rome in 1998 either.
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1951 Convention and Protocol Relating to the Status of Refugees < http://www.unhcr.org/3b66c2aa10 > (last accessed 7 January 2019).
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J. Lichfield “Paris Attacks: Ahmed Almuhamed’s Passport May Have Been Planted by Terrorists” (The Independent, 16 November 2015) < http://www.independent.co.uk/news/world/europe/paris-terror-attacks-ahmed-almuhameds-passport-may-have-been-planted-byterrorists-a6735476.html > (last accessed 7 January 2019).
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Greece does not automatically provide those who have been granted refugee status with a passport; the fee for this process is 85 euros. See the official website of the Greek Asylum Service < http://asylo.gov.gr/en/ > (last accessed 7 January 2019).
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Circular of the Ministry of State, Φ.82215/18303 [in Greek].
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Such an interpretation would however infringe upon the rights of the accused and the legal principle of in dubio pro reo.
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In the Tadić case, while discussing Article 4(1) of the Fourth 1949 Geneva Convention for relative to the Protection of Civilian Persons in Time of War, the ICTFY Appeal Court noted that as of 1949 the legal bond of nationality is not considered crucial and that judicial decisions must be mostly based on the substantive links between an individual and a State rather than on formal links. (“the legal bond of nationality was not regarded as crucial and allowance was made for special cases. In the [...] case of refugees, the lack of both allegiance to a State and diplomatic protection by this State was regarded as more important than the formal link of nationality” Prosecutor v. Duško Tadić (Appeal Judgement), IT-94-1-A, International Criminal Tribunal for the former Yugoslavia (ICTY), 15 July 1999, 5 < http://www.refworld.org/docid/40277f504.html > (last accessed 7 January 2019).
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Early on, legal theory had accepted that in such case an objection to the ICC’s jurisdiction could be filed. Μ. El Zeidy (2002) “The Principle of Complementarity: A New Machinery to Implement International Criminal Law” 23 MJIL 869, 919.
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Harvard Draft Convention on Jurisdiction with Respect to Crime, with Comment, Art. 5, reprinted in 29 AJIL Supp. 439 (1935) 533: “Whether, in case of double or multiple nationality, an accused is a national of the State which is attempting to prosecute and punish is a question to be determined by reference to such principles of international law as govern nationality. If international law permits the State to regard the accused as its national, its competence is not impaired or limited by the fact that he is also a national of another State.” See also Z. Deen-Racsmány (2001) “Τhe Nationality of the Offender and the Jurisdiction of the International Criminal Court” 95 Am. J. Int’l L. 606, 611.
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Article 12(3) ICCRSt: If the acceptance of a State which is not a Party to this Statute is required under paragraph 2, that State may, by declaration lodged with the Registrar, accept the exercise of jurisdiction by the Court with respect to the crime in question. The accepting State shall cooperate with the Court without any delay or exception in accordance with Part 9.
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Three state parties appear to have submitted declarations for the ad hoc jurisdiction of the ICC hitherto: Palestine, the Ivory Coast and Ukraine.
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The term ‘situation’ would be more correct here.
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Situation in the Democratic Republic of Congo, Decision on the Applications for Participation in the Proceedings of VPRS1, VPRS2, VPRS3, VPRS4, VPRS5 and VPR-6, para 65 < https://www.icc-cpi.int/pages/record.aspx?uri=183441 > (last accessed 7 January 2019).
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R. Rastan (2008) “What is a ‘Case’ for the Purpose of the Rome Statute?” 19 Criminal Law Forum 435, 438.
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Article 14 - Referral of a situation by a State Party: 1. A State Party may refer to the Prosecutor a situation in which one or more crimes within the jurisdiction of the Court appear to have been committed requesting the Prosecutor to investigate the situation for the purpose of determining whether one or more specific persons should be charged with the commission of such crimes.
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Report of the Preparatory Commission for the International Criminal Court, Finalized Draft Text of the Rules of Procedure and Evidence, PCNICC/2000/1/Add.1, 2 November 2000 < https://www.legal-tools.org/doc/1a75a9/pdf/ > (last accessed 7 January 2019).
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Hans-Peter Kaul, “Preconditions to the Exercise of Jurisdiction” in Α. Cassese, P. Gaeta, J. R. W. D. Jones, The Rome Statute of the International Criminal Court: A Commentary (OUP 2002, vol I) 611.
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R. Wedgwood (1999) “The International Criminal Court: An American View” 10 EJIL 93, 102-103.
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ICC, Rules of Procedure and Evidence, ICC-PIDS-LT-02-002/13_Eng (The Hague: International Criminal Court, 2nd edition, 2013).
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Tsilonis, V. (2019). The Preconditions for the International Criminal Court to Exercise its Jurisdiction. In: The Jurisdiction of the International Criminal Court. Springer, Cham. https://doi.org/10.1007/978-3-030-21526-2_2
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