Abstract
This chapter assesses whether the field of ICL, similarly to colonial legal systems, is also based on Western laws and values. The chapter specifically focuses on the system of international core crimes which is intimately related to the post-World War II Military Tribunals in Nuremberg and Tokyo and which constitutes a linchpin of present-day international criminal law enforcement. Since these crimes have been enacted by the Allied Powers on a multilateral rather than a universal basis, it is examined whether they have coalesced into universal—as opposed to Western—values over the course of time. After briefly delineating what ICL essentially is (Sect. 6.1) a general picture on the universalisation-process of major crimes in ICL is provided (Sect. 6.2). Recourse to the concept of universal jurisdiction, which is a purely value-based approach to international criminal justice (Sect. 6.3) and an assessment of the ICC’s system of core crimes (Sect. 6.4) complement the universal value debate, ultimately confirming that international core crimes have now acquired a universal dimension. In terms of methodology, the question concerning the universal character of core crimes will be answered—considering the overall focus on the African cause—by assessing the African states’ commitments in this respect.
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.
Notes
- 1.
Before 1945, the term war criminals was typically used to describe individuals that were acting in breach of the law of war as covered, inter alia, by the Hague conventions of 1899 and 1907. As of the Second World War , the term is interpreted more broadly covering also criminals guilty of other major crimes subject to contemporary international criminal law, such as crimes against humanity or genocide (see Minear 1971, pp. 6f.).
- 2.
- 3.
Bassiouni 1980, p. 2.
- 4.
- 5.
The Lotus Case , supra note 4, p. 21.
- 6.
Here, the author refers to international customary law (see Colangelo 2006, pp. 158f.).
- 7.
Under the principle of territoriality, ‘States have the right to exercise jurisdiction over all events on their territory, this includes their airspace and territorial waters, and also includes ships and aeroplanes which are registered in those countries’. The nationality principle (sometimes referred to as ‘active personality’) devises that ‘States are entitled under international law to legislate with respect to the conduct of their nationals abroad’. The passive personality principle comprises the following situations: ‘Passive personality jurisdiction is jurisdiction exercised by a State over crimes committed against its nationals whilst they are abroad’. Under the protective principle , ‘[a] State is entitled to assert protective jurisdiction over extraterritorial activities that threaten the State security, such as the selling of a State’s secrets, spying or the counterfeiting of its currency or official seal’. On these principles, see Cryer et al. 2014, pp. 52–56. In addition, another, although controversial, type of extraterritorial jurisdiction is the so-called effects doctrine which applies to cases ‘where the [extraterritorial] offence is deemed to exert some deleterious effect within the territory of the prescribing state’ (O’Keefe 2004, p. 739). For an assessment of the principle of universal jurisdiction, see infra Sect. 6.3.
- 8.
- 9.
Kress 2012, p. 718, para 5.
- 10.
- 11.
Ibid., p. 13.
- 12.
Bassiouni 1980, p. 3.
- 13.
Cassese et al. 2013, p. 3.
- 14.
See Kress 2012, p. 719, para 11.
- 15.
Boister 2012, p. 18.
- 16.
Kress 2012, p. 719, para 10.
- 17.
Boister 2012, p. 18.
- 18.
- 19.
- 20.
Cassese et al. 2013, p. 3.
- 21.
Cryer et al. 2014, p. 49.
- 22.
- 23.
- 24.
The Lotus Case , supra note 4, p. 19.
- 25.
See ibid. pp. 19ff.
- 26.
- 27.
It was noted in The Lotus Case : ‘Now the first and foremost restriction imposed by international law upon a State is that—failing the existence of a permissive rule to the contrary—it may not exercise its power in any form in the territory of another State. In this sense jurisdiction is certainly territorial; it cannot be exercised by a State outside its territory except by virtue of a permissive rule derived from international custom or from a convention’ (The Lotus Case, supra note 4, p. 18). See also, O’Keefe 2004, p. 740.
- 28.
See ibid., p. 740.
- 29.
See ibid., p. 737.
- 30.
Ibid., p. 737.
- 31.
Ibid., p. 737.
- 32.
The most prominent precedent dealing with war criminals on the basis of an international agreement prior to the Second World War and the International Military Tribunals at Nuremberg and Tokyo was the Leipzig Trial in the wake of the First World War . In attempting to establish individual accountability for war crimes committed during the First World War, the 1919 treaty of Versailles devised that German war criminals, including Kaiser Wilhelm, should not go unpunished for the crimes committed during the war and be prosecuted by military tribunals. However, the intention to punish those responsible for war crimes during WWI was not carried out with utter vehemence by the Allied Powers and corresponding provisions in the Versailles Treaty by and large remained dead letters. An overview over the early initiatives in the field of ICL can be found in: United Nations Secretary-General . ‘Historical Survey of the Question of International Criminal Jurisdiction’ (1949) UN Doc A/CN.4/7/Rev.1; McCormack 1996, pp. 684–714; Bassiouni 1997, pp. 13–21; Bassiouni 1991, pp. 1ff.; and Segesser and Gessler 2005, pp. 453–68.
- 33.
- 34.
- 35.
The International Military Tribunal at Nuremberg (IMT ) commenced in November 1945 and lasted until October 1946. These proceedings resulted in nineteen convictions, ranging from 10 years imprisonment up to life imprisonment and death by hanging. Three of the accused defendants were acquitted (Jackson 1947, pp. viii, xii–xiii). A detailed overview over the indictment and the judgment is provided in Ferencz 1980, pp. 470–86. On the IMT in general, see Wright 1965, pp. 239–78; and Cryer 2005, pp. 36–42. On allegations of selectivity in the context of these tribunals see infra Chap. 9, Sect. 9.2.3.1
- 36.
The International Military Tribunal for the Far East (IMTFE ) took place in Tokyo and lasted from 29 April 1946 until 12 November 1948. It found 25 defendants guilty on one or more counts (for more information on the judgment at the IMTFE , Ferencz 1980, pp. 502–538; Horwitz 1950, pp. 542ff. and 578ff.; and Minear 1971, pp. 20–33; on the IMTFE in general, see Cryer 2005, pp. 42–48.).
- 37.
On the most significant contributions of the IMT on modern-day international criminal justice, see Mettraux 2008, pp. 599–614.
- 38.
For the IMT , see Bassiouni 1997, pp. 23ff. A description of the negotiations that took place at London, in the run-up to the IMT , is provided in Taylor 1993, pp. 56ff.; and Murphy 1990. For the IMTFE , Bassiouni 1997, pp. 31ff. For more information on the political environment these tribunals were embedded into, see infra Chap. 9, Sect. 9.2.3.1.
- 39.
R. H. Jackson . ‘International Conference on Military Trials: London, 1945 (Minutes of the Conference Session of July 23, 1945)’ The Avalon Project: Documents in Law, History and Diplomacy (1945). http://avalon.law.yale.edu/imt/jack44.asp. Accessed 12 November 2016.
- 40.
On the early initiatives in the field of ICL, see supra note 32.
- 41.
See Mettraux 2008, p. 601.
- 42.
The ‘Principles of International Law Recognized in the Charter of the Nürnberg Tribunal and in the Judgment of the Tribunal’ were adopted by the International Law Commission in 1950 (see ILC. ‘Text of the Nürnberg Principles Adopted by the International Law Commission’ (1950) UN Doc A/CN.4/L.2).
-
Principle I: Any person who commits an act which constitutes a crime under international law is responsible therefor and liable to punishment.
-
Principle II: The fact that internal law does not impose a penalty for an act which constitutes a crime under international law does not relieve the person who committed the act from responsibility under international law.
-
Principle III: The fact that a person who committed an act which constitutes a crime under international law acted as Head of State or responsible Government official does not relieve him from responsibility under international law.
-
Principle IV: The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him.
-
Principle V: Any person charged with a crime under international law has the right to a fair trial on the facts and law.
-
Principle VI: The crimes hereinafter set out are punishable as crimes under international law:
-
(a)
Crimes against peace:
-
(i)
Planning, preparation, initiation or waging of a war of aggression or a war in violation of international treaties, agreements or assurances;
-
(ii)
Participation in a common plan or conspiracy for the accomplishment of any of the acts mentioned under (i).
-
(i)
-
(b)
War crimes:
Violations of the laws or customs of war which include, but are not limited to, murder, illtreatment or deportation to slave-labour or for any other purpose of civilian population of or in occupied territory, murder or ill-treatment of prisoners of war, of persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns, or villages, or devastation not justified by military necessity.
-
(c)
Crimes against humanity:
Murder, extermination, enslavement, deportation and other inhuman acts done against any civilian population, or persecutions on political, racial or religious grounds, when such acts are done or such persecutions are carried on in execution of or in connection with any crime against peace or any war crime.
-
(a)
-
Principle VII: Complicity in the commission of a crime against peace, a war crime, or a crime against humanity as set forth in Principle VI is a crime under international law.
-
- 43.
On 11 December 1946, the GA of the United Nations ‘[affirmed] the principles of international law recognized by the Charter of the Nuremberg Tribunal and the judgment of the Tribunal’ (GA Res 95 (I) (11 December 1946) UN Doc A/RES/1/95). On 21 November 1947, the GA assigned the newly created International Law Commission (ILC) the task to formulate the Principles and prepare a draft code of offences against the peace and security of mankind (GA Res 177 (II) (21 November 1947)). In 1950, the ILC adopted an elaborated version of the Nuremberg Principles (ILC. ‘Text of the Nürnberg Principles Adopted by the International Law Commission’ (1950) UN Doc A/CN.4/L.2). The universality of the Nuremberg principles has subsequently been confirmed by the European Court of Human Rights in Kolk and Kislyiy v. Estonia (ECHR No. 23052/04 and 24018/04), Decision as to the Admissibility, 17 January 2006. On the recognition of the Nuremberg Principles by states and international criminal tribunals, see A. Cassese. ‘Affirmation of the Principles of International Law Recognized by the Charter of the Nürnberg Tribunal’ United Nations Audiovisual Library of International Law (2009). http://legal.un.org/avl/ha/ga_95-I/ga_95-I.html. Accessed 12 November 2016; Komarow 1980, pp. 21–37; and Sadat Wexler 1994, pp. 289–380.
- 44.
See Cassese, supra note 43, para 4B; and Mettraux 2008, p. 600.
- 45.
Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (12 August 1949, 75 UNTS 31, Entry into Force 21 October 1950) [hereinafter Geneva Convention I]; Geneva Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of the Armed Forces at Sea (12 August 1949, 75 UNTS 85, Entry into Force 21 October 1950) [hereinafter Geneva Convention II]; Geneva Convention Relative to the Treatment of Prisoners of War (12 August 1949, 75 UNTS 135, Entry into Force 21 October 1950) [hereinafter Geneva Convention III]; Geneva Convention Relative to the Protection of Civilian Persons in Time of War (12 August 1949, 75 UNTS 287, Entry into Force 21 October 1950) [hereinafter Geneva Convention IV]; Convention on the Prevention and Punishment of the Crime of Genocide (09 December 1948, 78 UNTS 277, Entry into Force 12 January 1951 [hereinafter Genocide Convention ]; Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity (26 November 1968, 754 UNTS 73, Entry into Force 11 November 1970); International Convention on the Suppression and Punishment of the Crime of Apartheid (30 November 1973, 1015 UNTS 243, Entry into Force 18 July 1976) [hereinafter Apartheid Convention ]; Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (8 June 1977, 1125 UNTS 3, Entry into Force 7 December 1978) [hereinafter Protocol I]; Protocol Additional to the Geneva Conventions of 12 August 1949 and Relating to the Protection of Victims of Non-International Armed Conflicts (8 June 1977, 1125 UNTS 609, Entry into Force 7 December 1978) [hereinafter Protocol II]. In addition, the General Assembly adopted a resolution on Principles of International Cooperation in the Detection, Arrest, Extradition and Punishment of Persons guilty of War Crimes and Crimes Against Humanity in 1973 (GA Res 3074 (XXVIII) (3 December 1973)).
- 46.
One of the early promoters of the vision to establish a permanent enforcement mechanism in the field of ICL was the International Association of Penal Law. This body proposed in 1926 that the Permanent Court of International Justice (PCIJ) should be given the power to deal with criminal matters. In 1937, a draft convention for the Prevention and Punishment of Terrorism and for the establishment of an International Criminal Court was elaborated, but not put into practice. On early initiatives to establish a permanent international criminal tribunal, see, among others, Friedlander 1983, pp. 18f.; Hudson 1938, pp. 549–54; Mc Goldrick 2004, pp. 40f.; Gianaris 1992, pp. 88–119; and Bassiouni and Blakesley 1992, pp. 151–82.
- 47.
See supra note 45.
- 48.
- 49.
See supra note 45.
- 50.
- 51.
On possible problems of ICL enforcement, Bassiouni 2000, pp. 221ff.
- 52.
- 53.
SC Res 827 (25 May 1993) UN Doc S/RES/827.
- 54.
SC Res 955 (8 November 1994) UN Doc S/RES/955.
- 55.
- 56.
Cassese, supra note 43, para 4A. See also Mettraux 2008, p. 600.
- 57.
On the negotiations of the Rome Statute, see infra Sect. 6.4.1.
- 58.
Article 5 RS. See also infra Sect. 6.4.2.
- 59.
- 60.
Nouwen 2006, p. 190.
- 61.
Some also refer to the Crimes Chamber in the Court of Bosnia and Herzegovina. For an introduction on these ‘hybrid’ courts, see ibid.
- 62.
The crimes subject to universal jurisdiction are discussed below in this section.
- 63.
Cryer et al. 2014, pp. 56f.
- 64.
On these types of jurisdiction, see supra note 7.
- 65.
Bassiouni 2001, p. 96.
- 66.
M. Cherif Bassiouni has therefore concluded that ‘it [universal jurisdiction] is not as well established in conventional and customary international law as its ardent proponents, including major human rights organizations, profess it to be’ (Bassiouni 2004, p. 40). For a critique of the principle of universal jurisdiction, Fletcher 2003, pp. 580–84; and Kissinger 2001, pp. 86–96.
- 67.
See Cordero 2008, pp. 59–100; and Expert Report, infra note 77, paras 15ff.
- 68.
The Council of the European Union , in its decision 2003/335/JHA of 8 May 2003, has affirmed that ‘genocide , crimes against humanity and war crimes, must not go unpunished and that their effective prosecution must be ensured by taking measures at national level and by enhancing international cooperation’ (Council of the European Union. ‘Decision on the Investigation and Prosecution of Genocide, Crimes Against Humanity and War Crimes’ (8 May 2003) 2003/335/JHA Official Journal L 118, 14/05/2003 pp. 0012–0014, preambular para 2; this duty is reiterated in preambular paras 4, 7).
- 69.
See Decision on the Report I, infra note 97, para 3. A detailed assessment of the AU position on the principle of universal jurisdiction is provided in infra Sect. 6.3.2.
- 70.
The preamble of the Rome Statute ‘[recalls] that it is the duty of every state to exercise its criminal jurisdiction over those responsible for international crimes’. In addition, it is noted that states parties to the Statute are ‘[d]etermined to put an end to impunity for the perpetrators of these crimes’.
- 71.
The Prosecutor v. Dusko Tadic a/k/a ‘Dule’ (IT-94-1-AR72), Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995 para 62; and The Prosecutor v. Anto Furundžija (IT-95-17/1-T), Judgment, 10 December 1998 para 156.
- 72.
The Prosecutor v. Bernard Ntuyuhaga (ICTR -98-40-T), Decision on the Prosecutor’s Motion to Withdraw the Indictment, 18 March, 1999.
- 73.
The Prosecutor v. Morris Kallon and Brima Bazzy Kamara (SCSL-2004-15-AR72(E) and SCSL -2004-16-AR72(E)), Decision on Challenge to Jurisdiction: Lomé Accord Amnesty, 13 March 2004 paras 67–71.
- 74.
Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium ), Judgment, I.C.J. Rep. 2002, p.3 [hereinafter Arrest Warrant Case], Dissenting Opinion of Judge van den Wyngaert, para 44.
- 75.
The most prominent among them—the Princeton Project on Universal Jurisdiction—adopted the Princeton Principles of Universal Jurisdiction (Princeton Project on Universal Jurisdiction. ‘Princeton Principles on Universal Jurisdiction’ Program in Law and Public Affairs (2001). https://lapa.princeton.edu/hosteddocs/unive_jur.pdf. Accessed 12 November 2016). More recently, and as a direct consequence of the political frictions between European and African states which were caused by the alleged misuse of the principle of universal jurisdiction by European states, a joint ad hoc expert group between the EU and the AU (EU/AU Expert Group ) convened in 2008 ‘to clarify the respective understanding on the African and EU side on the principle of universal jurisdiction’ (see Expert Report, infra note 77, para 2 (emphasis in the original)).
- 76.
As a consequence of this lack of a normative framework dealing with the principle of universal jurisdiction, a legislative diversity has emerged between different national judicial systems resorting to this type of jurisdiction. A prominent example illustrating such legislative diversity at a domestic level concerns the issue of trials in absentia. In light of the fact that there is no rule of international law proscribing the issuance of an arrest warrant or a trial in case the defendant is not present on the territory concerned, it can be argued in accordance with the lotus paradigm that the decision about the admissibility of proceedings in absentia falls within the competence of domestic legislators (see Arrest Warrant Case, supra note 74, Dissenting Opinion of Judge van den Wyngaert, paras 44/54 and Joint Separate Opinion of Judges Higgins, Kooijmans and Buergenthal, para 56). On the differences in the implementation of the principle of universal jurisdiction in European countries, Cordero 2008.
- 77.
This expert group was constituted by the AU and EU, in order to discuss the principle of universal jurisdiction after political tensions materialised between those institutions following the exercise of universal jurisdiction by a number of European states against African personalities (Council of the European Union . ‘The AU-EU Expert Report on the Principle of Universal Jurisdiction’ (16 April 2009) 8627/1/09 REV 1 [hereinafter Expert Report]).
- 78.
Ibid., para 9. On the customary law status of these crimes, SC. ‘Report of the Secretary-General Pursuant to para 2 of Security Council Resolution 808 (1993)’ (3 May 1993) S/25704 paras 33–35.
- 79.
The Princeton Principles on Universal Jurisdiction, for example, also listed slavery and crimes against peace as crimes subject to the principle of universal jurisdiction (Principle 2 Princeton Principles, supra note 75).
- 80.
An overview over national legal systems is provided in Cordero 2008, pp. 59–100; and Amnesty International . ‘Universal Jurisdiction: A Preliminary Survey of Legislation around the World’ (2012). https://www.amnesty.org/en/documents/ior53/019/2012/en/. Accessed 12 November 2016, Annex I (pp. 16ff.).
- 81.
- 82.
Notably the Geneva Conventions of 1949 were ratified by virtually all states of the world (see supra note 45).
- 83.
Article 105 of the United Nations Convention on the Law of the Sea (10 December 1982, 1833 UNTS 3, Entry into Force 16 November 1994) reads as follows: ‘On the high seas, or in any other place outside the jurisdiction of any State, every State may seize a pirate ship or aircraft, or a ship or aircraft taken by piracy and under the control of pirates, and arrest the person and seize the property on board. The courts of the State which carried out the seizure may decide upon the penalties to be imposed, and may also determine the action to be taken with regard to the ships, aircraft or property, subject to the rights of third parties acting in good faith.’ See also, Bassiouni 2004, pp. 47ff.
- 84.
Geneva Conventions I–IV, supra note 45.
- 85.
Protocol I, supra note 45.
- 86.
Genocide Convention , supra note 45.
- 87.
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (10 December 1984, 1465 UNTS 85, Entry into Force 26 June 1987) [hereinafter Torture Convention ].
- 88.
- 89.
The ‘grave breaches ’ are specified in Article 50 Geneva Convention I; Article 51 Geneva Convention II; Article 130 Geneva Convention III; Article 147 Geneva Convention IV.
- 90.
See Article 49 Geneva Convention I; Article 50 Geneva Convention II; Article 129 Geneva Convention III; Article 146 Geneva Convention IV. The provision is worded identical in all four conventions: ‘Each High Contracting Party shall be under the obligation to search for persons alleged to have committed, or to have ordered to be committed, such grave breaches , and shall bring such persons, regardless of their nationality, before its own courts. It may also, if it prefers, and in accordance with the provisions of its own legislation, hand such persons over for trial to another High Contracting Party concerned, provided such High Contracting Party has made out a prima facie case.’
- 91.
Article 34 of the Vienna Convention on the Law of Treaties (23 May 1969, 1155 UNTS 331, Entry into Force 27 January 1980) [hereinafter 1969 Vienna Convention].
- 92.
On the relationship between the concept of universal jurisdiction and the treaty-based aut dedere aut judicare principle, Colangelo 2006, pp. 166ff.; and Expert Report, supra note 77, para 11.
- 93.
See Expert Report, supra note 77, paras 9, 13.
- 94.
- 95.
Expert Report, supra note 77, para 11.
- 96.
An overview over proceedings initiated on the basis on universal jurisdiction over the past two decades can be found in: Rikhof 2009, pp. 26–33; and Langer 2011, see tables pp. 42–44. Langer , in particular, links the selective application of the principle of universal jurisdiction to the potential (international-relations) costs a defendant would impose on the prosecuting state if a prosecution and trial takes place (see ibid, p. 2).
- 97.
See Assembly of the AU . ‘Decision on the Abuse of the Principe of Universal Jurisdiction’ (Addis Ababa, Ethiopia, 15–16 July 2012) Doc EX.CL/731(XXI) [hereinafter Decision on the Abuse V]; Assembly of the AU . ‘Decision on the Abuse of the Principle of Universal Jurisdiction’ (Addis Ababa, Ethiopia, 30–31 January 2011) Doc EX.CL/640(XVIII) [hereinafter Decision on the Abuse IV]; Assembly of the AU . ‘Decision on the Abuse of the Principle of Universal Jurisdiction’ (Kampala , Uganda , 25–27 July 2010) Doc EX.CL/606(XVII) [hereinafter Decision on the Abuse III]; Assembly of the AU . ‘Decision on the Abuse of the Principle of Universal Jurisdiction’ (Addis Ababa, Ethiopia, 31 January–February 2010) Doc EX.CL/540(XVI) [hereinafter Decision on the Abuse II]; Assembly of the AU . ‘Decision on the Abuse of the Principle of Universal Jurisdiction’ (Sirte, Libya , 1–3 July 2009) Doc Assembly/AU/11(XIII) [hereinafter Decision on the Abuse I]; Assembly of the AU . ‘Decision on the Implementation of the Assembly Decision on the Abuse of the Principle of Universal Jurisdiction’ (Addis Ababa, Ethiopia, 1–3 February 2009) Doc Assembly/AU/3(XII) [hereinafter Decision on the Implementation I]; Assembly of the AU . ‘Decision on the Report of the Commission on the Abuse of the Principle of Universal Jurisdiction’ (Sharm El-Sheikh, Egypt, 30 June–1 July 2008) Doc Assembly/AU/14(XI) [hereinafter Decision on the Report I].
- 98.
See, among others, Langer 2011, pp. 1–49.; T. Maluwa. ‘The Principle of Universal Jurisdiction and its Application in Africa: Reconciling Conceptual Logic with Political Reality’ (10th EAMJA Conference, Rwanda , 23–24 May, 2012) at 8f. http://www.eamja.org/10th%20EAMJA%20Conference.html. Accessed 12 November 2016; van der Wilt 2011, pp. 1043–66; and Zemach 2011, pp. 152f.
- 99.
See Decision on the Report I, supra note 97, para 3.
- 100.
Constitutive Act of the African Union (11 July 2000, Entry into Force 26 May 2001).
- 101.
Decision on the Abuse V, supra note 97, para 5.
- 102.
Executive Council of the AU. ‘Decision on the African Union Model National Law on Universal Jurisdiction over International Crimes’ (Addis Ababa, Ethiopia, 9–13 July 2012) Doc EX.CL/731(XXI)c [hereinafter AU Model National Law].
- 103.
Ibid., para 4. This request was reiterated by the AU Assembly in its July 2012 decision on the International Criminal Court (Assembly of the AU . ‘Decision on the Implementation of the Decisions on the International Criminal Court (ICC)’ (Addis Ababa, Ethiopia, 15–16 July 2012) Doc EX.CL/731(XXI) [hereinafter Decision on the Implementation IV], para 11). In regard to this decision, D. Akande rightly observes that it is at bit odd that the AU has located this request in the decision on the ICC instead of the decision on the abuse of the principle of universal jurisdiction (see D. Akande. ‘The African Union , the ICC and Universal Jurisdiction: Some Recent Developments’ (29 August 2012). http://www.ejiltalk.org/the-african-union-the-icc-and-universal-jurisdiction-some-recent-developments/. Accessed 12 November 2016).
- 104.
AU Model National Law, supra note 102, p. 6, n. 8. However, as Akande notes with regard to the inclusion of the treaty-based crimes of drug trafficking and terrorism: ‘Since African States have been complaining about the abuse of universal jurisdiction, it is a bit strange to see them pushing, through this Model Law, the boundaries of the crimes covered by that principle’ (Akande, supra note 103).
- 105.
In a similar vein, Akande, supra note 103.
- 106.
An unofficial summary by Human Rights Watch from notes taken in the court is available at: https://docs.google.com/document/d/1eAbEEaP_V_-R4u9ekEikONq_eEEPJ6VE_DrD1hB737Y/edit. Accessed 12 November 2016. For more information on this trial, see https://www.hrw.org/tag/hissene-habre, accessed 12 November 2016.
- 107.
In South Africa , the Constitutional Court, on 30 October 2014, paved the way for the prosecution of Zimbabwean state officials for torture on the basis of the principle of universal jurisdiction (see National Commissioner of the South African Police Service v Southern African Human Rights Litigation Centre and Another (CCT 02/14), ZACC 30, Judgment, 30 October 2014).
- 108.
Assembly of the AU . ‘Decision on the Draft Legal Instruments’ (Malabo, Equatorial Guinea, 26–27 June 2014) Doc Assembly/AU/8(XXIII) para 2(e).
- 109.
A short introduction to this topic is provided in Du Plessis et al. 2013, pp. 8ff.
- 110.
- 111.
GA Res 52/160 (15 December 1997) UN Doc A/RES/52/160 para 3.
- 112.
A list with the participating states and organisations can be found in Annexes II–IV, ‘United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court: Official Records’ (Rome, 15 June–17 July 1998) Vol. I, UN Doc A/CONF.183/13 (Vol. I) at 74–79.
- 113.
- 114.
- 115.
Andorra, Argentina, Australia, Austria, Belgium , Benin, Bosnia-Herzegovina, Brunei, Bulgaria, Burkina Faso, Burundi, Canada, Chile, Congo (Brazzaville), Costa Rica, Croatia, Czech Republic, Denmark, Egypt, Estonia, Finland, Gabon, Georgia , Germany , Ghana, Greece, Hungary, Ireland, Italy, Jordan, Republic of Korea, Latvia, Lesotho, Lichtenstein, Lithuania, Luxembourg, Malawi, Malta, Namibia, the Netherlands, New Zealand, Norway, the Philippines , Poland, Portugal, Romania, Samoa, Senegal , Sierra Leone, Singapore, Slovakia, Slovenia, Solomon Islands, South Africa , Spain, Swaziland, Sweden, Switzerland, Trinidad and Tobago, United Kingdom, Venezuela, Zambia (see Schabas 2011, p. 18, n. 63; and Glasius 2006, pp. 22–26).
- 116.
See Benedetti and Washburn 1999, p. 20; Glasius 2006, pp. 26–28. On the discursive role that NGOs played in the establishment of a permanent international criminal tribunal, Struett 2008. On the role of NGO’s in the preparation of Articles 13(b) and 16 RS, see also infra Chap. 10, Sect. 10.2.3.; and infra Chap. 11, Sect. 11.2.2.
- 117.
See Glasius 2006, pp. 24f.
- 118.
- 119.
- 120.
- 121.
- 122.
Glasius 2006, p. 24.
- 123.
Ibid., p. 24.
- 124.
‘Summary Record of the 9th Plenary Meeting’ (17 July 1998) UN Doc A/CONF.183/SR.9 para 10.
- 125.
See Benedetti and Washburn 1999, p. 27.
- 126.
In a similar vein, Cryer 2005, p. 236.
- 127.
See Preamble of the RS, paras 4/9 and Articles 1 and 5 RS.
- 128.
The crime of aggression, of which a definition was adopted at the 2010 Review Conference at Kampala (Article 8bis RS), only enters into force when: (a) at least thirty States Parties have ratified or accepted the amendments (Articles 15bis (2) and 15ter (2) RS) and (b) two-thirds of the States Parties have taken a decision to activate the crime of aggression at any time after 1 January 2017 (Articles 15bis (3) and 15ter (3) RS).
- 129.
Jouannet 2007, p. 397. On the methodology adopted in this section, see also introduction to Part II.
- 130.
Jouannet 2007, p. 397.
- 131.
Ibid., p. 397.
- 132.
Ibid., pp. 397f.
- 133.
Preamble of the RS, para 1.
- 134.
See GA. ‘Report of the Ad Hoc Committee on the Establishment of an International Criminal Court’ (1995) UN Doc A/50/22, paras 54–85.
- 135.
- 136.
For an assessment on the reasons whether treaty crimes should be excluded from the jurisdiction of the ICC, see GA. ‘Report of the Preparatory Committee on the Establishment of an International Criminal Court ’ (1996) Vol. I, UN Doc A/51/22, paras 103ff.; Boister 1998, pp. 27–43.
- 137.
GA. ‘Statement by U.S. Ambassador Bill Richardson Regarding the Establishment of an International Criminal Court’ (New York, 23 October 1997). http://www.state.gov/documents/organization/65828.pdf. Accessed 12 November 2016 (emphasis added).
- 138.
See supra Sect. 6.3.1.
- 139.
Nevertheless, a small number of categories of crimes within the Article 5 catalogue are considered to be in advance of customary international law. Antonio Cassese, for example, considers the inclusion of the categories ‘forced pregnancy’ (Article 7(1)(g) RS), ‘enforced disappearance of persons’ (Article 7(1)(i) RS) and ‘the crimes of apartheid’ (Article 7(1)(j) RS) to be in advance of customary international law. He also argues that the open-ended nature of the crime of ‘persecution against any identifiable group or collectivity’ (Article 7(1)(h) RS), by adding in particular ‘cultural, […] gender as defined in para 3, or other grounds that are universally recognized as impermissible under international law’, extends beyond established law (Cassese 2002, pp. 376–7) In a similar vein, Schabas 2010, p. 177). In addition, it is doubtful whether the prohibition of ‘conscripting or enlisting children under the age of fifteen years into armed forces or groups or using them to participate actively in hostilities’ (Article 8(2)(e)(vii) RS) is covered by customary international law (see Cryer 2005, p. 283).
- 140.
Cryer 2005, p. 287.
- 141.
Benedetti and Washburn 1999, p. 33.
- 142.
See The Nuremberg Judgment, Nuremberg Trial Proceedings 22, 30 September 1946. http://avalon.law.yale.edu/imt/09-30-46.asp. Accessed 12 November 2016.
- 143.
On the requirements for the crime of aggression to become operational, see supra note 128.
- 144.
- 145.
See AU-Decisions on universal jurisdiction, supra note 97.
- 146.
- 147.
Morocco rejoined the African Union on 30 January 2017 after more than 30 years, after having left the institution in 1984.
- 148.
At the time of writing, 124 states have ratified the RS (on the status of ratification, see Rome Statute of the International Criminal Court (17 July 1998, 2187 UNTS 3, Entry into Force 1 July 2002)).
- 149.
Tladi 2009, p. 65.
- 150.
See ibid., p. 65.
- 151.
Other states that have voted against the adoption of the RS were: the U.S.; Israel, China , Iraq , Yemen and Qatar (see Benedetti and Washburn 1999, p. 27).
- 152.
Du Plessis 2010, p. 6.
- 153.
Ibid., p. 6.
- 154.
See ibid., pp. 6ff.; and Maqungo 2000, pp. 42–53.
- 155.
Maqungo 2000, p. 47.
- 156.
On the role of a universal international law in the context of colonial expansion, see Jouannet 2007.
- 157.
- 158.
See ILC. ‘Text of the Nürnberg Principles Adopted by the International Law Commission ’ (1950) UN Doc A/CN.4/L.2.
- 159.
The principles can be found in supra Sect. 6.2, note 42.
- 160.
- 161.
Geneva Conventions I-IV and Protocol I and II; Genocide Convention ; Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity; International Convention on the Suppression and Punishment of the Crime of Apartheid, supra note 45.
- 162.
See supra Sect. 6.3.
- 163.
See, in particular, Decision on the Report I, supra note 97, para 3.
- 164.
Executive Council of the AU. ‘Decision on the African Union Model National Law on Universal Jurisdiction over International Crimes’ (Addis Ababa, Ethiopia, 9–13 July 2012) Doc EX.CL/731(XXI)c.
- 165.
See AU-Decisions, supra note 97.
- 166.
Constitutive Act of the African Union (11 July 2000, Entry into Force 26 May 2001).
- 167.
See supra note 106.
- 168.
See supra Sect. 6.4.3.
- 169.
See supra Sect. 6.4.2.
- 170.
Having evaluated the AU’s objections in the context of the Al-Bashir indictment, Tladi also confirms that the value-based imperialism claim does not apply the context of the ICC: ‘[W]hatever their origins, the values under consideration have been (re)appropriated by African culture so that the imperialist potential […], whatever its validity, is not applicable to ICC action consistent with its mandate, ie these values reflect genuine universality’ (Tladi 2009, p. 66).
- 171.
Anonymous. ‘African leaders denounce international court’ Gulf News (5 July 2009). http://gulfnews.com/news/mena/libya/african-leaders-denounce-international-court-1.500076. Accessed 12 November 2016.
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Schuerch, R. (2017). The Universalisation of Western Values Since the Second World War . In: The International Criminal Court at the Mercy of Powerful States. International Criminal Justice Series, vol 13. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-192-0_6
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