1 The Concept of International Criminal Law

Before addressing the universalisation-process of major crimes in the field of ICL, we have to define what ICL actually is. While the notion of ICL is nowadays typically associated with the exercise of jurisdiction by international criminal tribunals over major war criminals,Footnote 1 one should bear in mind that the term ICL extends beyond this understanding.Footnote 2 Broadly speaking, the notion of ICL describes ‘the convergence of international aspects of municipal criminal law and criminal aspects of international law’.Footnote 3 In a first step, the international aspects of municipal criminal law will be addressed in brief. On the one hand, this understanding of ICL provides for a limitation of national legislations by setting the framework upon which the extra-territorial application of municipal law is based.Footnote 4 The Permanent Court of International Justice (PCIJ), which is the precursor of the International Court of Justice (ICJ), decided in the famous Lotus Case that a state, in absence of any rule of international law ‘restricting the discretion of States as regards criminal legislation’, can also apply its laws to situations of extra-territorial character.Footnote 5 The Lotus Case, thus, leaves a wide measure of freedom to states in dealing with criminal issues. Principles of national criminal jurisdiction which have emerged within the framework of international lawFootnote 6 are territoriality , nationality , passive personality , the protective principle and universal jurisdiction.Footnote 7 On the other hand, the international dimension of municipal criminal law is reflected in the international co-operation between states in criminal matters.Footnote 8 This co-operation is commonly ‘governed by some basic principles of customary international law and a wide net of regional and bilateral international treaties’.Footnote 9 This implies myriad forms of mutual assistance ranging, among other things, from extradition issues to the extraterritorial execution of sentences and the gathering of evidence abroad. Another dimension of ‘international aspects of municipal law’, which recently gained traction, specifically deals with treaty-based crimes of a transnational character, such as drug or human trafficking.Footnote 10 This branch, known as transnational criminal law , ‘consists of (a) horizontal treaty obligations between states and (b) the vertical application of criminal law by those states to individuals in order to meet their treaty obligations’.Footnote 11

The criminal aspect of international law, by contrast, ‘consists of the establishment by custom or convention of an international prescription which criminalizes a certain type of conduct, irrespective of whether it is enforced internally or externally’.Footnote 12 This approach to ICL, also known as international criminal law stricto sensu , understands it as ‘a body of international rules designed both to proscribe certain categories of conduct […] and to make those persons who engage in such conduct criminally liable’.Footnote 13 In other words, it refers to a body of crimes that is ‘rooted in general international law because of its inextricable connection with fundamental values of the international legal community as whole’.Footnote 14 In contrast to international treaties dealing with transnational crimes whose ‘prohibition on individuals is entirely national’,Footnote 15 these crimes are directly criminalised in international law and thus establish ‘individual criminal responsibility directly under international law’.Footnote 16 Although the underlying values of international criminal law stricto sensu may also be articulated in international treaties, they ‘involve a direct customary international law based obligation on individuals’.Footnote 17 In the context of international treaties, as will be shown in detail below, such an international prescription is often linked to an obligation of states to either prosecute or extradite a person accused of having committed an international crime.Footnote 18 At the same time, ICL stricto sensu facilitates enforcement mechanisms through the establishment of international criminal tribunals.Footnote 19 As far as international proceedings before international criminal tribunals are concerned, there likewise exists a procedural criminal law which ‘governs the action by prosecuting authorities and the various stages of international criminal tribunals’.Footnote 20

Within the domain of ICL, the term jurisdiction takes a central role in the description of competences in criminal matters both at a domestic and an international level. In general terms, ‘[j]urisdiction is the power of the State to regulate affairs pursuant to its laws’.Footnote 21 The notion of jurisdiction is typically considered in three different forms: jurisdiction to prescribe , jurisdiction to enforce and jurisdiction to adjudicate .Footnote 22 Jurisdiction to prescribe (or legislative jurisdiction) refers to the state’s authority to pass laws and criminalise a certain conduct.Footnote 23 Delineating the states’ jurisdictional competences, the PCIJ noted in The Lotus Case that ‘all that can be required of a State is that it should not overstep the limits which international law places upon its jurisdiction; within these limits, its title to exercise jurisdiction rests in its sovereignty’.Footnote 24 As was indicated above, this may also include extraterritorial situations as long as no prohibitive rule of international law exists which negates the state’s claim to this type of jurisdiction.Footnote 25 Jurisdiction to enforce (or executive jurisdiction), by contrast, describes the authority of a state to enforce the prescribed criminal law including prosecution, sentencing and detention.Footnote 26 While prescribed criminal law in part also covers extra-territorial conduct, the enforcement of the law by states is exclusively territorial unless another state explicitly grants permission to take direct initiatives on its territory.Footnote 27 Prescriptive jurisdiction and jurisdiction to enforce are thus not congruent in cases where the alleged perpetrator of the prohibited conduct is not present on the prescribing territory.Footnote 28 Universal jurisdiction, the type of jurisdiction that is subsequently addressed, belongs to the category of prescriptive jurisdiction.Footnote 29 The concept of jurisdiction to adjudicate , to conclude this discussion, specifically refers to ‘a municipal court’s competence under international law to adjudge certain matters’.Footnote 30 Adjudicative jurisdiction, at least in a criminal context, is typically congruent with prescriptive jurisdiction because the ‘application of a state’s criminal law by its criminal courts is simply the exercise or actualization of prescription’.Footnote 31

Mindful of the diversity and complexity of the discipline of ICL, the present analysis does not deal with all of the above described aspects of ICL. Rather, the focus of this book is on ICL stricto sensu and the international core crimes regime which constitutes the centrepiece of international crimes prosecution at both a national and international level. In other words, the following assessment will deal with matters that pertain to the body of substantive international criminal law and that are attributable to the realm ‘criminal aspects of international law’.

2 The Universalisation of Major Crimes in the Field of International Criminal Law

Although ICL has evolved as scientific discipline in its own right today, criminal matters, until recently, were exclusively allocated to the sphere of national sovereignty. It was not until the Second World War that the primacy of national sovereignty in criminal matters and the states’ exclusive prerogative to prosecute and punish criminal conduct were seriously challenged.Footnote 32 Thus, the internationalisation of a number of criminal matters (which were of concern to the international community as a whole) and the introduction of the principle of individual accountability at a level transcending the sovereignty of single states are closely linked to the international community’s ambition to overcome the trauma of the Second World War.Footnote 33 Despite the fact that different opinions existed among the Allied Nations about how Axis war criminals should be dealt with,Footnote 34 the Allied Powers , under the lead of the U.S., eventually agreed to establish two joint criminal tribunals, in NurembergFootnote 35 and TokyoFootnote 36 respectively, as a response to the atrocities committed during the war.

The Military Tribunals established in the wake of the Second World War inspired the international alliance to break new ground and greatly contributed to the formation and consolidation of the discipline of ICL.Footnote 37 However, one should keep in mind that these tribunals were not established through an act of universal legislation but instead were based on an agreement between the victorious powers of the war.Footnote 38 This approach was justified prior to the adoption of the IMT -Statute by Robert H. Jackson , Chief of Counsel for the U.S. at the IMT , in the following terms: ‘I think it is entirely proper that these four powers [the United States, Great Britain , the Soviet Union and France ], in view of the disputed state of the law of nations, should settle by agreement what the law is as the basis of this proceeding’.Footnote 39 The Allied states, so to say, ‘monopolised’ the making of international criminal law, as they saw themselves in a position of political and moral superiority. When discussing the legal foundation of these post-war tribunals, one should also bear in mind that international cooperation in the field of ICL was a fairly new phenomenon at that time. In this sense, the Allied Powers ’ decision to try major war criminals before joint tribunals was rather progressive for its day.Footnote 40 As Guénaël Mettraux has observed: ‘Although the Nuremberg Trial did not mark the birth of international criminal justice as an idea, it truly was its first modern realization and after the war it symbolized the re-emergence of the rule of law as a factor of relevance to international relations’.Footnote 41 Besides, notwithstanding the fact that the law of the tribunals was not universal in character at the time of its creation, one may claim upon reasonable grounds that their universal legitimacy was achieved in retrospect through ex post adoption of the Nuremberg Principles Footnote 42 by the international community.Footnote 43 These principles, among other things, establish individual accountability under international law (Principle I) and define war crimes, crimes against humanity and crimes against peace as ‘crimes under international law’ (Principle VI). Today, most of the Nuremberg Principles form part of customary international law.Footnote 44

Apart from the codification of the Nuremberg Principles , these tribunals also inspired the international community to adopt a range of international conventions in the domains of International Humanitarian Law and ICL in the years following the war.Footnote 45 In addition, the successful accomplishment of the IMT and the IMTFE revitalised the idea of establishing a permanent international criminal court.Footnote 46 The 1948 Genocide Convention Footnote 47 included in Article 6 that an international criminal tribunal may acquire jurisdiction over the crime of genocide if such a court was consented by the contracting parties. In addition to that, between 1950 and 1954 the UN launched several initiatives to establish a permanent international criminal court.Footnote 48 This process, however, was never finalised as considerations on this issue were repeatedly deferred. The Apartheid Convention of 1973,Footnote 49 similarly to the Genocide Convention, envisages in Article V that states may set up an international tribunal to deal with the crimes of the convention. This option, however, was never exercised by the contracting states.

A main reason for the states’ unwillingness to transfer inherent criminal competences to a permanent criminal tribunal can be identified in the precarious geopolitical situation between the West and the East in the decades following the Second World War , which was caused by fundamentally different ideologies between the United States and the Soviet Union .Footnote 50 As a consequence of this political deadlock, states showed no interest in permanently curtailing their sovereign rights in criminal matters and subordinating themselves to a sovereignty-transcending enforcement mechanism, thus giving effect to codifications that were launched under the auspices of the UN at that time.Footnote 51 During this period, by implication, ‘domestic tribunals and individual countries remain[ed] the primary vehicles for the enforcement of the Nuremberg principles’.Footnote 52 It was only in the face of the conflicts in the Former Yugoslavia and Rwanda in the nineteen-nineties that the international community reintroduced the approach of international criminal tribunals. In 1993 and 1994 respectively, the Security Council set up the two ad hoc International Criminal Tribunals for the Former Yugoslavia (ICTY )Footnote 53 and Rwanda (ICTR )Footnote 54.Footnote 55 The statutes of these tribunals firmly relied on their famous post-World War II predecessors and contain, although ‘in a slightly different and generally more elaborated manner’, most of the Nuremberg Principles .Footnote 56

In 1998 the international community eventually agreed to establish the ICC, the first ever international criminal instrument competent to deal with perpetrators of major international crimes on a permanent basis.Footnote 57 As will be outlined in more detail below, the jurisdiction of the ICC is limited to the crimes of genocide , war crimes, crimes against humanity and aggression.Footnote 58 In contrast to its famous predecessors, it is founded on the basis of a multilateral treaty and not set up either by victorious powers as was the case after the Second World War , or the SC, which established the ICTY and the ICTR .Footnote 59

Other international criminal tribunals have come into existence since the founding of the ICC, all of which are limited to a specific historical, geographical and temporal context and characterised ‘by a mix of national and international components’.Footnote 60 Examples include the District Court of Dili in East Timor, the Regulation 64 Panels in the courts of Kosovo, the Special Tribunal for Lebanon, the Special Court for Sierra Leone (SCSL ) and the Extraordinary Chambers in the courts of Cambodia.Footnote 61 For reasons of methodology, we will not discuss the latter mentioned ‘hybrid’ tribunals, as their legal foundation would require an assessment of national elements (and crimes), an endeavour that stretches beyond the scope of this survey. With that said, it remains to note that these hybrid courts, of course, may be susceptible to problems similar to those discussed in this book.

3 Universal Jurisdiction: A Value-Based Approach to International Justice

3.1 The Legal Concept of Universal Jurisdiction

Universal jurisdiction is a separate type of jurisdiction which allows states to institute criminal proceedings against perpetrators of international crimesFootnote 62 ‘without reference to the place of perpetration, the nationality of the suspect or the victim or any other recognized linking point between the crime and the prosecuting State’.Footnote 63 In contrast to the protective principle and the principles of active and passive personality which may also affect extraterritorial situations,Footnote 64 the doctrine of universal jurisdiction thus derives its legitimacy exclusively from the nature of the crime. On the basis of this understanding, M. Cherif Bassiouni has observed that ‘[t]he theory of universal jurisdiction is extraneous to the concept of national sovereignty, which is the historical basis for national criminal jurisdiction. Universal jurisdiction transcends national sovereignty’.Footnote 65 This statement epitomises why the concept of universal jurisdiction is a good example to show how the field of ICL differs from the traditional concepts of colonialism and neo-colonialism. Firstly, as opposed to the imposition of Western values during colonial rule, the concept of universal jurisdiction is not predicated on cultural dissimilarities between the actors involved. Rather universal jurisdiction is a purely value-based approach that defines itself on the basis of the nature of the crimes, irrespective of the perpetrator’s nationality. Secondly, this value-oriented approach is generally designed to function independently from sovereignty-concerns of single states. While the latter aspect of universal jurisdiction will be dealt with in the following chapter, the present section will concentrate on the substantive scope of universal jurisdiction. However, prior to doing so, a few words remain to be said on the contested nature of this concept.

Although the doctrine of universal jurisdiction undoubtedly harbours noble objectives, it has attracted considerable criticism from legal scholars.Footnote 66 In spite of these critical voices, the legality of the principle has been confirmed by a majority of statesFootnote 67 and international organisations, such as the EUFootnote 68 and the AU.Footnote 69 In addition, the principle is acknowledged as a valid instrument of international law by the ICC,Footnote 70 the ICTY ,Footnote 71 the ICTR Footnote 72 and the SCSL Footnote 73. Although most international criminal institutions and states, from Africa and elsewhere, have accepted the legality of universal jurisdiction, the precise scope of the concept has remained a matter of controversy as there is ‘no generally accepted definition of universal jurisdiction in conventional or customary international law’.Footnote 74 In order to fill this gap, a number of efforts were undertaken in the past to define the normative scope of the concept.Footnote 75 However, none of the produced proposals has received sufficient support among the international community to be translated into a state-binding normative framework regulating the use of universal jurisdiction by states on a supranational basis.Footnote 76

Despite the fact that a coherent normative framework delineating the boundaries of the concept of universal jurisdiction is lacking, there is a broad consensus on the substantive scope of the concept of universal jurisdiction. A joint EU/AU Expert Group Footnote 77 has determined that the following crimes, which form part of international customary law , fall within the category of crimes subject to universal jurisdiction: genocide , crimes against humanity , war crimes, torture , and piracy .Footnote 78 Although this selection is rather conservative,Footnote 79 it conforms well to the legislative practice of most states that have implemented the concept of universal jurisdiction in their legal systems.Footnote 80 At the same time, this enumeration of core crimes also reflects the most prominent positions taken in legal literature.Footnote 81

The existence of a limited number of international core crimes reflecting common values of the international community is also evident from the fact that a number of widely accepted treaties deal with some of these crimes.Footnote 82 However, it is important to understand that universal jurisdiction is explicitly established in international conventional law only with regard to piracy .Footnote 83 Other relevant conventions such as the 1949 Geneva Conventions ,Footnote 84 the Additional Protocol I of 1977,Footnote 85 the Genocide Convention Footnote 86 and the 1984 Convention against Torture,Footnote 87 only implicitly allow for the exercise of universal jurisdiction. In these treaties, the exercise of jurisdiction relates to the obligation of states parties to either prosecute or extradite alleged criminals, an obligation that will be discussed in more detail in the following chapter.Footnote 88 The gist of this duty is that a state, as an alternative to initiate criminal proceedings at a national level, can also extradite the suspect to another state party which is willing to do so. The obligation to prosecute or extradite resembles the exercise of universal jurisdiction because it requires a state party to these conventions, in case of non-extradition , to prosecute perpetrators of international crimes even in the absence of any link to them. With respect to the Geneva Conventions, it remains to mention that such a duty only applies in the context of grave breaches Footnote 89.Footnote 90

In analysing the treaty-based duty of states to prosecute or extradite, it must, however, be stressed, firstly, that treaties are only binding on the consenting statesFootnote 91 and secondly, that universal jurisdiction based on treaty law, except when the treaty in question has been ratified by all states, is not truly universal due to its inherent limitation to states parties.Footnote 92 As a consequence, states which are not party to a specific treaty are not obliged to comply with the aut dedere aut judicare obligation. Rather, they can act at their own discretion and make use of the principle of universal jurisdiction whenever they consider it reasonable (permissive universal jurisdiction ).Footnote 93 The situation would be different if there existed a general duty to prosecute international crimes under customary international law. This, however, is not the case at present, as will be shown in more detail in Chap. 7.Footnote 94

In any case, prior to exercising universal jurisdiction, treaty-based or not, a state is required to implement corresponding prescriptive national legislation within the boundaries of international law to ‘vest its courts with competence to try given criminal conduct’.Footnote 95

3.2 African Position Towards the Concept of Universal Jurisdiction

The subject of universal jurisdiction, as indicated previously, has attracted criticism from various directions over a long period of time. From an African perspective, in particular European states’ exercise of universal jurisdiction against high-profile African defendants, including senior state officials and military personnel,Footnote 96 has provoked harsh reactions from the African Union against the ‘abuse’ of this branch of jurisdiction.Footnote 97 However, while analyses of the (selective) application of the principle of universal jurisdiction can be found elsewhere,Footnote 98 the present section specifically deals with the African states’ reception of the concept of universal jurisdiction and its underlying values, in order to evaluate the states’ acceptance of the previously identified international core crimes .

In this sense, it is important to emphasise that the AU in 2008, in the same decision in which it denounced the (abusive) exercise of universal jurisdiction for the first time, unambiguously recognised

that universal jurisdiction is a principle of International Law whose purpose is to ensure that individuals who commit grave offences such as war crimes and crimes against humanity do not do so with impunity and are brought to justice, which is in line with Article 4(h) of the Constitutive Act of the African Union .Footnote 99

Article 4(h) of the Constitutive act of the AUFootnote 100 enshrines ‘the right of the Union to intervene in a Member State pursuant to a decision of the Assembly in respect of grave circumstances, namely: war crimes, genocide and crimes against humanity ’. Both the AU decision and Article 4(h) of the Constitutive Act are clear indications that the AU does not call into doubt that the above enumerated crimes are applicable at a level that transcends the sovereignty of single states. More recently, the AU, still in the context of the European states’ exercise of universal jurisdiction, urged its ‘Member States to use the principle of reciprocity to defend themselves against the abuse of the principle of Universal Jurisdiction’.Footnote 101 The rationale behind this request—to use the principle of reciprocity to compensate for the allegedly misguided exercise of universal jurisdiction by European states—is doubtful, to say the least. However, this request at the same time reflects a commitment to bring perpetrators of international core crimes to justice in African states. In addition, simultaneously to the ‘reciprocity request’ to the AU member states, the Executive Council of the AU presented an ‘African Union Model National Law on Universal Jurisdiction over International Crimes’,Footnote 102 for that AU member states ‘fully take advantage of this Model National Law in order to expeditiously enact or strengthen their national laws in this area’.Footnote 103 The AU Model National Law not only refers to the traditional crimes subject to the principle of universal jurisdiction, such as genocide , crimes against humanity , war crimes and piracy , but also covers the crimes of drug trafficking and terrorism.Footnote 104 The inclusion of the core crimes of genocide , crimes against humanity and war crimes into the list of crimes provides further evidence that these crimes are now accepted by African states on a universal basis. In this sense, the AU Model National Law is an expression of the opinio juris of African States regarding the application of the principle of universal jurisdiction, as well as of the acceptance of the core crimes in general.Footnote 105 In addition, as regards the exercise of universal jurisdiction, it is noteworthy that the former President of Chad, Hissène Habré , has been convicted by the Extraordinary African Chambers in a seminal trial in Senegal on 30 May 2016, among others, for crimes against humanity , war crimes and torture .Footnote 106 Besides, there are currently universal jurisdiction proceedings underway in South Africa .Footnote 107

A recent development that is unrelated to the concept of universal jurisdiction, but that similarly corroborates the universality presumption of the core crimes, is the AU’s adoption of the ‘Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights ’ on 27 June 2014.Footnote 108 With this initiative, the AU aims to create a mechanism to deal with crimes that are, inter alia, also covered by the ICC. More specifically, the amendment furnishes the (not yet operational) African Court of Justice and Human Rights (the merger of the African Court on Human and Peoples Rights and the Court of Justice of the AU) with competence over the international core crimes of aggression, genocide , war crimes and crimes against humanity , as well as a number of other crimes.Footnote 109 An important development which is similarly evident in some African states, but which is not addressed here because an examination in this direction would extend beyond this book’s scope, relates to the adoption of domestic legislation and the initiation of proceedings based thereon.Footnote 110

4 The Value System of the ICC

4.1 Introducing the Negotiation Process

The Rome Conference on the Establishment of an International Criminal Court opened its doors on 15 June 1998 and lasted until 17 July 1998.Footnote 111 Delegates from more than 160 states, 16 international organisations and a great many of non-governmental organisations from all regions of the world participated in this epochal event and contributed to the accomplishment of founding the ICC.Footnote 112

The most influential alliance that crystallised during the negotiations was the group of like-minded states (LMG ) which advocated a strong and independent court.Footnote 113 The LMG was composed of middle powers and developing states which were particularly concerned about the opposition of the P-5 of the SC against an independent court.Footnote 114 Over the course of the conference, the LMG assembled more than 60 states from different parts of the world.Footnote 115 The position of these states towards the future court was by and large congruent with that of the NGO coalition which, due to its legal expertise and experience in the field, had a great deal of influence on the negotiation dynamic and on drafting the Statute.Footnote 116 A key to the successful finalisation of the RS was the fact that traditional alliances, such as the Non-Aligned Movement (NAM) and the P-5 of the SC, both of which had played an active role during the preparatory stage of the negotiations, did not succeed in upholding a unified position during the conference.Footnote 117 As such, certain states of the NAM had initially opposed any influence of the SC on the future court and also had advocated including nuclear weapons in the list of crimes. However, these states found themselves under pressure to compromise on these issues during the conference.Footnote 118 In particular the Southern African Development Community (SADC ) had played an important role in dividing the NAM and in integrating some of these states into the group of like-minded states.Footnote 119 The SC, on the other hand, was particularly interested in retaining control over all proceedings affecting international peace and security , a domain that is left to the Council on the basis of Chapter VII UNC.Footnote 120 However, as will be outlined in more depth in Chap. 11, the U.K. (already prior to the conference) and France broke ranks, signalling their willingness to accept a solution in which the SC does not function as a supervisory authority over proceedings affecting Chapter VII situations.Footnote 121

Analysing the dynamics of the negotiation process of the RS, it can be summarised that ‘[t]he main division was between a majority of states in favour of a strong, independent Court and a minority trying to curtail its powers’.Footnote 122 By contrast, the otherwise much-emphasised division between states from the Global North and the Global South ‘was virtually absent at the ICC negotiations’.Footnote 123 In this sense, the negotiations of the Statute were marked by transregional alliances between states, or group of states, thus reflecting the transcultural underpinning of the values underlying the system of the ICC. This interpretation is supported by the fact that the RS was adopted during the final plenary session by 120 votes in favour of the Statue, 7 against and 21 abstentions.Footnote 124 The only countries voting against the adoption of the Statute were: the U.S., Israel, China , Iraq , Yemen, Libya and Qatar.Footnote 125

4.2 The Regime of Core Crimes Under the Rome Statute

In contrast to the ICTY and the ICTR , whose statutes were unilaterally established by the SC, we saw that the legal basis of the ICC—the Rome Statute—merges a multitude of national interests into one coherent legal instrument. This is because unlike its famous ad hoc predecessors, the Court was created by states whose nationals were potential subjects to the jurisdiction of the Court at the time of the negotiations.Footnote 126 Accordingly, not only states parties to the ICC contributed to the establishment of the RS but all states which took part in negotiating it. This, of course, stimulated the debate and prompted national delegations to gather support for their positions among other states. In substantive terms, the negotiating states have agreed that the ICC shall have jurisdiction ‘over the most serious crimes of concern to the international community as a whole’.Footnote 127 More specifically, the subject-matter jurisdiction of the ICC, which is defined in Article 5 RS, extends to the crimes of genocide , war crimes, crimes against humanity and aggression. With regard to the crime of aggression, however, it must be noted that, although it is also part of the Article 5 catalogue of crimes within the jurisdiction of the Court, it will only become an operational crime as soon as certain additional requirements are met.Footnote 128

Taking the above summary of the Rome negotiations as a starting point, the author would like to approach these negotiations from a different perspective by making use of the technique of ex post adoption of values on the basis of negotiations. This approach, which was briefly introduced in the introductory chapter to this part, is borrowed from a contribution by Emmanuelle Jouannet on the dichotomy between hegemonic and universal international law.Footnote 129 Jouannet confirms that negotiations, which she describes as ‘more subtle practices that are sensitive to the context of contemporary globalized society’, can contribute to an international law that is a ‘cultural product that has been expanded to cover the whole planet’.Footnote 130 In other words, she concludes that international law is not only instrumental to conceal hegemonic goals of powerful actors, but at the same time

can also be considered as the paradigmatic space within which inter-subjective practices of negotiation and deliberation over the elaboration and application of values, principles and rules may flourish, whether this takes place at the level of specialized or general institutions, in the context of judicial decisions or diplomatic discussions.Footnote 131

Following this line of reasoning, the classical objection that ‘consensus cannot exist between profoundly different socio-cultural systems […] does not always translate systematically into the hegemonic victory of the legal values of one of the two, or pure decisionism’.Footnote 132 Although Jouannet discusses the foundations and the making of international law in general, the same reasoning can be applied to the negotiations of the Rome Statute in 1998. The convertibility of this approach to the system of the ICC is supported by the fact that the Preamble explicitly emphasises the inter-cultural dimension of the Rome Statute. As such, it is described as a ‘delicate mosaic’ in which ‘all peoples are united by common bonds, their cultures pieced together in a shared heritage’.Footnote 133

While the RS as a whole can certainly be described as a treaty with a transcultural underpinning, there were, of course, certain issues that were more contested than others during the negotiations, a fact that was already touched upon in the previous paragraph. In particular the role of the SC in matters relating to international peace and security proved to be a highly controversial matter, as will be shown in more detail in subsequent Chaps. 10 and 11. The negotiations with respect to the subject-matter jurisdiction, by contrast, were less contested. Already in the early phases of the discussions on a permanent international criminal tribunal, it was emphasised that the future court should deal with core crimes only and not include other (treaty-based) crimes such as terrorism or illicit drug trafficking.Footnote 134 Support for the inclusion of these so-called transnational crimes waned during the preparatory works for the establishment of an international criminal court.Footnote 135 The argument advanced related to the fact that the Court should be limited to deal with crimes which were already universally recognised by the time of the establishment of the ICC.Footnote 136 A statement issued by the U.S. prior to the negotiations in Rome reflects this position:

This court should not concern itself with incidental or common crimes, nor should it be in the business of deciding what even is a crime. This is not the place for progressive development of the law into uncertain areas, or for the elaboration of new and unprecedented criminal law. The court must concern itself with those atrocities which are universally recognized as wrongful and condemned.Footnote 137

The selection of crimes subject to the RS, as we saw in the section on universal jurisdiction,Footnote 138 conforms well to the most important historical developments in conventional and customary international criminal law.Footnote 139 Robert Cryer even argues that ‘[t]he problem with the Rome Statute is that definitions of crimes are sometimes narrower than customary international law permits (or, in some cases, requires)’.Footnote 140 It can therefore be concluded that the negotiations of the RS have consolidated the system of core crimes under international law. The broad acceptance of the values underlying the system of the ICC among international actors which were present in Rome was similarly emphasised by Fanny Benedetti and John Washburn : ‘Any conclusions about the Rome diplomatic conference, as about its preparations, must take into account the almost total and frequently fervent moral agreement on the crimes it addressed’.Footnote 141

However, the negotiation history on the subject matter jurisdiction of the ICC also illustrates that negotiations between a multitude of actors from different cultures do not always translate into a universal vocabulary. Rather, it may well be the case that such a technique impedes the finding of a common understanding. This was the case in the context of crime of aggression, which was labelled the ‘supreme international crime’ at Nuremberg.Footnote 142 However, despite a lack of consensus over the definition of aggression, the crime was formally included into Article 5 RS and the negotiating states decided that it would not become operational until the states have reached a broader consensus on the matter.Footnote 143 Accordingly, the Statute, as of its entry into function, allowed the Court to exercise jurisdiction only over the crimes of genocide , war crimes and crimes against humanity . The exclusion of treaty-based transnational crimes from the jurisdiction of the Court, the non-inclusion of nuclear weapons into the list of prohibited crimes, as well as the process with regard to the crime of aggression therefore also demonstrate how important are negotiations in finding a common understanding of specific values.

It can be summarised that the RS, although it is still shaped by the national interests of single states, has created a value system which does not solely reflect the national interests of Western states, let alone of one imperial or neo-colonial centre. Rather, the broad participation of states and of a multiplicity of other actors in the negotiations of the Rome Conference reinforces the idea that the crimes subject to the RS have acquired a universal status by now. In this sense, the RS is a consensus between different socio-cultural systems transcending regional boundaries. Moreover, due to the fact that the ICC is acting on the ground of delegated jurisdiction by states party to it,Footnote 144 its inherent value system advocating the condemnation of international crimes at the same time is a reflection of the different national interests of states which have acceded to the Rome Treaty.

4.3 African States and the Establishment of the ICC

As was indicated above and as will be further substantiated in the subsequent chapters, the AU has not only been sceptical towards the principle of universal jurisdictionFootnote 145 but also expressed strong misgivings about the way the ICC is dealing with some African situations.Footnote 146 Hitherto, it has been demonstrated that African states and the AU have at different levels committed themselves to the underlying value system of ICL consisting of a number of core crimes which are applicable on a universal basis. The same can be said for their acceptance of the value system of the ICC. By now, 34 African states out of a total of 55 AU member statesFootnote 147 have ratified the RS.Footnote 148 The African continent thus contributes the largest continental share among the 124 member states to the ICC. The mere ratification of a treaty by a number of states, however, is not sufficient to ‘cure the imperialism objection to universalism’, as is rightly noted by Dire Tladi .Footnote 149 Nevertheless, this number indicates a broad acceptance of the values guiding the jurisdiction of the ICC among African states.Footnote 150 At the same time, African states have participated to a great extent in the negotiations and Libya was the only African state which voted against adopting the Statute.Footnote 151 In this sense, Max du Plessis has observed:

The history of the ICC’s creation and the serious and engaged involvement of African states in that history demonstrates the ICC to be a court created in part by Africans and ultimately for the benefit of African victims of serious crimes. The high ideals and hard work that marked African states’ participation in bringing the ICC to life in Rome should not too easily be forgotten.Footnote 152

As this statement indicates, African stakeholders also actively engaged in the preparations of the ICC in the run-up to the Rome Conference and many African governmental and non-governmental organisations lobbied for the establishment of the ICC throughout Africa.Footnote 153 An important role in the unification of a common African position before and during the negotiations belonged to the SADC .Footnote 154 In this regard, it is particularly noteworthy that one of the suggestions of the SADC , not making any reference to other treaty-based crimes , was ‘that the ICC should have universal jurisdiction over crimes of genocide , crimes against humanity , war crimes and crimes of aggression’.Footnote 155 This enumeration of core crimes, after all, corroborates the previous conclusion that there exists a broad agreement among states, and groups of states, that the international core crimes of genocide , crimes against humanity , war crimes and, with limitations, the crime of aggression, should form the substantive body of law under which the ICC operates.

5 Conclusion

Considering that the foundations of the discipline of ICL are multilateral rather than universal and that former colonial societies were excluded from the making of ICL after the Second World War , we saw that the proclaimed universal understanding of values underlying the system of ICL is in need of justification. This holds true in particular since the claim to universality has masked expansion and manipulation by those political entities that have promoted the notion of universality in the past.Footnote 156 In this sense, Chap. 4 has addressed how law, as an instrument of power, contributed to the establishment of colonial rule and to the expansion of Western values to non-Western societies. In raising the issue of whether the field of ICL in general and the ICC in particular are subject to a new form of legal colonialism, it is therefore essential to examine whether an imposition of alien laws and values, comparable to the expansion of colonial law and legal principles, is similarly apparent in ICL today. The claim of the existence of a number of universal core crimes in the field of ICL thus required in a first step assessing the extent to which these crimes were accepted in retrospect by the states which did not take part in their creation. This question is of importance since the imposition of values upon societies without their consent would undermine the universal aspirations of the international criminal justice project as a whole. Mindful of the conceptual differences between European colonial law and a purportedly universal international criminal law, Chap. 6 thus approached the issue whether international criminal law stricto sensu —the so-called core crimes—have been accepted by non-Western states as universally applicable by now.

Retracing the substantive core values that form the spearhead of international criminal law enforcement unsurprisingly revealed a Western background with the Allied Powers ’ Military Tribunals at Nuremberg and Tokyo taken as a starting point.Footnote 157 To this day, however, the discipline of ICL has undergone an impressive development and there is evidence to suggest that a number of international core crimes have now indeed acquired a universal status. One of the significant general developments with respect to the international core crimes concerned the elaboration of the Nuremberg Principles by the International Law Commission (ILC).Footnote 158 These principles contain a number of guiding rules which are relevant for the prosecution of international crimes, including the concept of individual accountability (Principle I) and a number of core crimes (Principle VI).Footnote 159 Reliance of various national and international courts, in one form or another, on these guiding principles in the decades following the Second World War epitomises the significance of these principles within the domain of international criminal justice.Footnote 160 In addition, under the umbrella of the UN, a number of conventions dealing with core crimes were elaborated in the decades following the war.Footnote 161

Another indication that states have accepted the universal status of these norms is the rise of the doctrine of universal jurisdiction, which finds legitimacy in the nature of crimes which ‘are of concern to the international community as a whole’.Footnote 162 The concept of universal jurisdiction testifies that a limited number of core crimes exist which can be prosecuted all over the world. Despite the fact that the AU has repeatedly criticised the ‘abuse’ of the principle of universal jurisdiction, it has clearly accepted that the concept of universal jurisdiction constitutes a valid instrument of international law.Footnote 163 In 2012, the AU even issued an ‘African Union Model National Law on Universal Jurisdiction over International Crimes’,Footnote 164 as a template for states wishing to adopt universal jurisdiction legislation. Moreover, in its (often critical) decisions on the principle of universal jurisdiction and the ICC, the AU repeatedly reiterated its commitment to fight impunity for international crimes in accordance with Article 4(h) of the Constitutive Act of the AU.Footnote 165 This provision, we recall, enshrines ‘the right of the Union to intervene in member states in cases of war crimes, genocide and crimes against humanity ’.Footnote 166 An important signal that international core crimes are also accepted by African states, in addition, is the recent conviction of the former president of Chad, Hissène Habré , on the basis of universal jurisdiction within the Extraordinary African Chambers in Senegal .Footnote 167

Turning to the ICC, it is important to recall that 34 African states have accepted the jurisdiction of the Court on a permanent basis.Footnote 168 Although the accession of a number of states to a treaty is not sufficient to prove the universal acceptance of the instrument, it nevertheless reflects the broad acceptance of the values guiding the jurisdiction of the ICC. Furthermore, the broad participation of a large number of state- and non-state actors in the negotiations of the ICC and the virtually unanimous adoption of the final package in Rome suggest that the RS can indeed be described as an agreement between different socio-cultural systems. This holds true, in particular, for the list of crimes that was included into the final compromise and which, since the early days of the discussions, attracted broad consensus among the negotiating states.Footnote 169 On a more general note, the Rome negotiations have not only revealed that negotiations may result in a transcultural compromise; rather, in particular the successful disintegration of the SC collective with regard to the hierarchy between the Council and the Court has shown how the international community may act as a counterforce to hegemonic aspirations of single states.

On the basis of these developments, it can be summarised that African states have in various ways strongly committed themselves to the core values which form the basis of international crimes prosecution at both a national and international level. Accordingly, it can be deduced that contemporary ICL is based on values which may not be labelled Western values anymore, despite the fact that many (colonised) states were side-lined from the creation process of these values after the Second World War . Rather, the values underlying the discipline of ICL and the ICC in particular can fairly be considered to have acquired a universal status by now.Footnote 170 In further consequence, this implies that any claim which purports that Western states ‘import their solutions’Footnote 171 to African states in the context of the concept of universal jurisdiction or the ICC is not sustained by closer scrutiny. This conclusion, at the same time, forecloses that the Western origins of international core crimes serve as an argument of a new form of legal colonialism in the field of ICL. However, these findings merely indicate that the very foundation of international crimes prosecution, the system of core crimes, is detached from any cultural heritage. They do not, by contrast, exclude the possibility that those values are applied in a one-sided or discriminatory manner. An assessment of this claim will be provided in Part III. Moreover, the mere acceptance of these values does not identify the situations in which these values may legitimately overrule the sovereignty of states. This topic will be addressed in the following Chap. 7.