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The ICC’s Jurisdiction over the Nationals of Nonparty States: A Critique of the U.S. Position
Abstract
Scharf analyzes the validity of the US argument against the International Criminal Court's jurisdiction over the national of non-party states in the context of historic precedent and the principles underlying international criminal jurisdiction, and demonstrates that it is not the jurisdiction of the ICC over the nationals of nonparty states, but the US government's legal argument, which rests on shaky foundations. He also highlights the potential unintended repercussions of the current US legal position.
... The Permanent Court of International Justice (PCIJ) ruled that Turkey's actions did not violate international law principles because the conduct committed on board the Lotus had an effect on Turkish territory, thereby allowing Turkey to exercise its jurisdiction [7]. Some scholars interpret the Lotus principle as sovereign states can freely establish a collective international jurisdiction that applies to the citizens of non-party countries unless there exists a breach of international law [21]. This interpretation aligns with the establishment of the ICC's jurisdiction, which deals with the question of jurisdiction over residents of non-State Parties when the ICC applies the "effects" doctrine to territorial jurisdiction. ...
... Regarding this risk, America's long-standing objection to the RS [21] is a typical example. As one of the only seven countries voting against the RS for the ICC, the US is unwilling to be obligated to provide accused citizens in its territory for the ICC's investigation or prosecution in a situation where it has not accepted to be bound by the treaty [21]. ...
... Regarding this risk, America's long-standing objection to the RS [21] is a typical example. As one of the only seven countries voting against the RS for the ICC, the US is unwilling to be obligated to provide accused citizens in its territory for the ICC's investigation or prosecution in a situation where it has not accepted to be bound by the treaty [21]. This is considered a significant detriment to American foreign policy, a potential source of political risk, and a serious violation of the basic principle of treaty law [21]. ...
The doctrine of “effects”, as an objective application of territorial jurisdiction, has been controversial since its establishment. The dispute becomes more intense when it comes to cybercrime. In the area of International Criminal Law, while some practices in the international criminal court and tribunals indicate a trend towards expanding territorial jurisdiction, which implies the application of the “effects” doctrine, whether the Court can adopt the doctrine or not remains uncertain. In the background that the integration of cybercrime and crimes stipulated by the Court is becoming a trend, considering the necessity and feasibility of applying the “effects” doctrine to the International Criminal Court, it is argued that the doctrine should be applied to the Court’s territorial jurisdiction. However, some potential risks raised by the application require a more balanced solution for the problem, which means the “effects” doctrine can only be applied by the Court when there exists a substantial and reasonably foreseeable effect on the territory.
... The United States, one of the closest allies of Israel (CRS Report, 2022) and itself not a party to the Rome Statute, has strongly criticized the ICC for its involvement, on grounds that this politicizes and biases the court. It pinpoints a larger issue of non-cooperation by states that really cripples the investigating, prosecuting, and enforcing powers of the ICC (Scharf, 2001). The ICC does not have its own police force to enforce an arrest or otherwise; it depends on state parties for enforcement and international cooperation in executing arrest warrants and facilitating the proceedings, which it seldom receives in politically sensitive cases like that between Israel and Palestine (Fulford, 2018). ...
... He refers to the way large powers such as the United States and the European Union influence the enforcement mechanisms of international law, particularly in wars against their allies or adversaries. Scharf (2001) posits that international legal institutions, such as the International Criminal Court, are generally weak in enforcement since they have no universal jurisdiction and are reliant on cooperation from states. This is evident in the Israel-Gaza conflict, where attempts by the ICC to probe war crimes are thwarted by states that do not accept its jurisdiction. ...
The enforcement of law is politicized where legal compliance or non-enforcement is determined by political interests. The same is no exception where there is politicization of legal norms on war crimes, humanitarian law, and human rights within the context of the Israel-Gaza conflict. The politicization of enforcing law is explored within this context where there is focus on global actors' role in establishing compliance and responsibility. The research identifies selective compliance, where, great power influences legal norms' applicability, undermining institutions of law's credibility. The aim of this research is to establish how much political interests control enforcing law within the conflict, establish how effective legal actions have been within resolving abuses, and discuss possible reform measures that ensure neutral applicability of law. Adopting doctrinal research, this research is founded on legal sources of facts including treatises, UN resolutions, and literature on law where there is exploration of how law is enforced through critical literature on law where law is analyzed by scrutinizing sources of facts of law. The findings establish that there is unequal legal compliance where geopolitical blocs control investigations, prosecutions, and penalties. The recommendation is that there is need to strengthen legal institutions of law of the international by decoupling institutions of law from politicization by enhancing regional adjudicatory institutions. Contributing to knowledge, this research contributes to complex vision of how law is entwined within politics within global relations where there is need to reform institutions of law to ensure its impartiality.
... 27 The debate on the ICC's territorial jurisdiction was heated, unlike its substantive jurisdiction during the Rome Conference of 1998 (the Rome Conference). 28 Many representatives of States at the Rome Conference, it should be remembered, had proposed that the ICC be given universal jurisdiction over the four core crimes so that it can prosecute any international crime regardless of whether it was committed on the territory of or by a citizen of a State Party. 29 States like India, China, and the USA that opposed the idea of the conferment of universal jurisdiction on the ICC feared for their sovereignty, and they envisaged a possibility of them being unable to protect their citizens; they instead favored a "weak and more symbolic court" Generally, for the ICC to have jurisdiction over persons and territories, one of the following preconditions must be present, 1) the core crimes have been committed by a citizen of a State Party to the Rome Statute, regardless of where they committed the crime; 31 and for States not being parties to the Statute 2) if such a State accepts ICC jurisdiction on an ad-hoc basis; 32 and 3) where the United Nations Security Council (the Security Council) refers a matter to the ICC 33 under Chapter VII of the United Nations Charter. ...
Notwithstanding obstacles to the power and jurisdiction of the ICC, the judges’ posture is that the court is ever ready to protect ethnic minorities against any form of violations. Regarding the situation of the Rohingya people in Myanmar, the Pre-Trial Chamber 1 and III of the ICC held that the ICC could exercise jurisdiction over Myanmar, a non-party State to the Rome Statute, for the deportation of the Rohingya people to Bangladesh. With these decisions, international observers hope for accountability for those responsible for the crimes committed against the Rohingya people. It examines the applicable law and history of discrimination of the Rohingya people using the descriptive method and then examines the jurisprudence behind these rulings using the analytical method. Finally, this article suggests that the Rome Statute should be consistently interpreted by the ICC judges to advance the Rome Statute’s intention, especially when ethnic minority groups are involved.
... The jurisdictional relationship between the ICC and nonparty states became a subject of academic debate in 2001. Scharf (2001), the then US Ambassador-at-Large for War Crimes issues, stated that the Rome Treaty of the ICC "purports to establish an arrangement whereby United States armed forces operating overseas could be conceivably prosecuted by the international court even if the United States (US) has not agreed to be bound by the treaty…. contrary to the most fundamental principles of treaty law." ...
The principle of domestic jurisdiction in international law makes national governments responsible for protecting their citizens, investigating alleged abuses of human rights in their countries and bringing the perpetrators to justice. They governments may also extradite those accused of abuse of human rights to any other states prepared to give them a fair trial. Problem arises however, when governments are unable or unwilling to perform this duty or are themselves perpetrators of these crimes. Thus, millions of people have fallen victims of genocide, crimes against humanity and serious violations of humanitarian laws. But only very few of these perpetrators have been brought to justice in national courts as many governments claim sanctuary under the principle of domestic jurisdiction. The need therefore arises for the international community to act in order to protect helpless or defenseless citizens from being victims of crimes against humanity and human rights abuses, by bringing the perpetrators of these crimes to justice. The thrust of this article therefore, is that the creation of the International Criminal Court (ICC) fills this void by fulfilling a central and pivotal goal in international jurisprudence. This article, therefore, provides insights and lessons into the history and prospects of the International Criminal Court. These are insights and lessons that are too important and too costly to ignore in the 21st century understanding of international criminal justice system.
... Some commentators support the idea of treaty-based universal jurisdiction partly in order to bolster the jurisdiction of the International Criminal Court (ICC) over non-party nationals. 24 However, the legality of the jurisdiction of the ICC is in no way premised on the possibility of creating universal jurisdiction by treaty. The possibility of delegating criminal jurisdiction by treaty seems to be one fairly convincing way of explaining the competence of the Court: by becoming parties to the Rome Statute, states have given to the Court a part of their own territorial and active personality jurisdiction with respect to certain offences. ...
How may the Office of the Prosecutor of the International Criminal Court select cases within a situation and how can it terminate the investigations in a situation as a whole? The author argues that the Rome Statute follows the principle of mandatory prosecution, which cannot be implemented in practice. However, proceedings may be suspended within the check-and-balance system of Art. 53 Rome Statute that contains opportunity clauses and rules on judicial review. On this basis, it is possible to legitimize the suspension of proceedings both in individual cases (case selection) and in the situation as a whole (situation completion). The result is an alternative to the current practice of non-transparent, almost purely discretionary decisions.
In a book on domestic implementationRestricted jurisdictional regime of the International Criminal Court, exploring the jurisdictional regime of the International Criminal Court matters due to the principle of complementarityPrinciple of complementarity. If cases do not fall within the complementary jurisdiction of the International Criminal Court, States lack a sovereignty-driven interest to enact legislation to avoid future judicial interventions. Restrictions on the jurisdiction of the International Criminal Court can thus affect domestic implementation. This chapter explores the restrictions imposed on the regime of the International Criminal Court regarding the crime of aggression. It chronologically assesses the decisions which were adopted at the Rome ConferenceRome Conference in 1998, the Kampala Review Conference in 2010 and the Assembly of States PartiesAssembly of States Parties in New York City in 2017. The jurisdictional regime following a State referral or proprio motu investigations can be described as being more consensual regarding the crime of aggression. It excludes the territory and nationals of non-States PartiesNon-States Parties, acts of aggression by States Parties that have opted out, and (arguably) the territory and nationals of States Parties which have not ratified the Kampala AmendmentsKampala Amendments. This leaves little of the strengths of territorial jurisdiction, the most basic principle of criminal jurisdiction. It installs a regime for the crime of aggression, which appeared unacceptable to the overwhelming majority at the Rome ConferenceRome Conference. The restrictions increase the dependency from the often-paralyzed UN Security CouncilUN Security Council which is why domestic implementations can reduce the risk of impunity.
O Direito Internacional está sempre confrontado a regular novas temáticas e perspectivas e na maioria das vezes o faz a partir de instrumentos tradicionais. Este é exatamente o retrato desta obra que apresenta pontos inovadores como a emergência climática, a serem trabalhados a partir da tradicional integração e solidariedade entre os membros da comunidade internacional.
O Direito Internacional está sempre confrontado a regular novas temáticas e perspectivas e na maioria das vezes o faz a partir de instrumentos tradicionais. Este é exatamente o retrato desta obra que apresenta pontos inovadores como a emergência climática, a serem trabalhados a partir da tradicional integração e solidariedade entre os membros da comunidade internacional.
The global changes in climate and extreme weather have already begun to affect
people and nature around the world. The changing climate impacts wildlife
species, the habitat destruction, over exploitation of wildlife as well as disease.
Currently 54% of Iraqi cultivated land faced challenges due to desertification.
While the percentage of dried marshlands in Iraq turns into 90%. Since the
country is wealthy with biodiversity, this precious heritage needs the urgent call
and attention to scale up efforts for establishment of sustainable Protected Areas
and of eco system of wildlife under climate change scenarios. The focus of the
paper is to examine existing legal framework on the process of conservation of
wildlife in Iraq and identify the legal barriers for the purpose of saving and
protecting the survive wildlife. The paper adopts the qualitative doctrinal methods
by analysing the environmental legislation such as “Law No. 27(2009) for
Environment Protection and Improvement and Law of Wild Animals Protection
No. 17 of 2010” in Iraq. Based on the discussion, the paper concludes that the
current legal frameworks in Iraq on conservation of wildlife are insufficient to
response the climate change. Further, the enforcement is weak and the
commitment and poor coordination between relevant institutions also become
challenges to protect wildlife in Iraq.
Keywords: legal framework, Wildlife protection, climate change, Iraq
The territorial conflict between Israel and Palestine has been the longest dispute in history. Although various efforts have been made to reconcile the dispute, no successful outcome could be achieved. The tension between the two states have been ever-increasing and upon the completion of preliminary examination, the ICC has now declared to conduct an investigation into the Palestinian situation. However, there has been speculations regarding the ICC’s ability to conduct an investigation on the basis of various clauses in the Rome Statute. Moreover, upon the declaration of an investigation by the OTP, the Israeli government has condemned the decision on various grounds. The primary objective of this paper is to iterate that Palestine is a recognized state and the crimes being committed in its territories fall under the purview of the Rome Statute, entailing accountability of the perpetrators. Hence, the author has attempted to refute Israel’s grounds and basis for non-cooperation and analyses the alleged “escape-clauses” in the Rome Statute. Finally, the author has reinforced that the ICC plays a non-partisan role in conducting investigations and holding war criminals accountable. Furthermore, the so-called “escape-clauses” in the Rome Statute are not loopholes rather a means by which the ICC aims to encourage national courts to undertake genuine proceedings to prosecute war criminals, in order to ensure global peace and order. Therefore, international law cannot be used as a tool to escape liability. The author has applied qualitative method, relying on primary and secondary sources of international law.
Starting from the hypothesis of Nuremberg that labels the crime of aggression as the ‘supreme international crime’, this article assesses its validity and describes developments in international criminal law that seem to suggest the current marginalization of aggression among the crimes under international law. The fall of the crime of aggression will be illustrated by the retarding moments before it became a defined and internationally enforceable crime, by the comparatively restricted jurisdiction of the International Criminal Court and by the legal controversies surrounding its domestic implementation and prosecution.KeywordsCrime of aggressionSupreme international crimeInternational military tribunalInternational Criminal CourtDomestic jurisdictionImmunitiesCooperation
Rape is one of the most heinous forms of violence against women around the world. People are getting more civilized and educated but this gruesome crime is increasing in an alarming rate. Moreover, it is the least reported crime in the world and sadly Bangladesh is no exception. This social misdeed is creating a society that disregards women and children’s rights and safety. As an effect, victims are blamed in most cases and rapist get away through the loophole of the law. Thus there is an unending sufferings of victim and their families are humiliated or disgraced in the society. The purpose of this research is to show how the rights of rape victims are protected in Bangladesh. This paper is also going to manifest in what extent those provisions are applicable in a practical way. This study also evaluated various Bangladeshi laws and tried to find out the barriers to execute them. The paper has identified many loopholes in the existing legal system and provided recommendations to stop this despicable social illness.
Climate change nowadays a global threat which is driven by the human induced greenhouse gases emissions and changeable pattern of the global weather. Though there have been previous periods of climatic change, since the mid-20th century humans have had an unprecedented impact on Earth's climate system and caused change on a global scale. Consequently, this is affecting the whole food system of the throughout the world. The utilization of the international legal framework and protocols will have an impact on the human’s food system and the livestock production. This paper intends to focus on the utilization of the legal frameworks and protocols to erase the impact of climate change of food system. By using the quantitative and qualitative research method, this study will explain the broaden uses of the Kyoto protocol, Polluter Pays Principle and shall discuss various method that will help these principles to erase the negative impact of climate change globally. Based on the findings this paper provides recommendations which could be considered by the developed country to use the legal and social protocols for improving the impact of the climate change of food chain system of humans.
For any foreign investors, protection of their investment is a primary concern in host states. National legislation and any BITs usually provide legal security to them so that they can exercise their desired economic freedom in host countries. Without legal safeguards of their investments, they will not be motivated to invest their capital further. Like other host states, generally, national laws and BITs of Bangladesh significantly provide guaranteeing to investment protection against expropriation. This paper will discuss the existing legal framework in relation to expropriation of FDI in Bangladesh. In this relation, the Constitution of Bangladesh, FDI legislation, various ICSID cases, BITs and conflicts between Bangladesh and foreign investors are discussed. It also covers issues and challenges of expropriation in Bangladesh. Findings show that expropriation arrangements in Bangladesh are not up to the international standard and require significant development. Recommendations are provided for consideration.
The global shutdown resulting from the COVID-19 pandemic led the manpower industry to go through the toughest
time in its history. As a result, Bangladeshi workers, on whom the wheel of the economy of Bangladesh is heavily
dependent, are facing racism and systematic abuse of human rights across the Gulf Corporation Council (GCC)
countries. Even prior to the pandemic they are either exploited or not provided the working conditions and
remunerations that they were promised. In this context, this study focuses to address the violation of human rights of
migrant workers including their families due to the after-effect of COVID-19 epidemic and to identify the barriers
they are facing in GCC countries. Using the quantitative and qualitative research method, this study will explore
whether there is any legal solution for those migrant workers and their families, and what sorts of rights need to be
protected under National and International laws. In addition, this study will also focus on the responsibilities of their
home and host states to fulfill them. Based on the findings, this study will provide various recommendation that could
be considered by the Government of Bangladesh either by building skilled workers or by improving the enforcement
of existing legislation or by bilateral investment treaties (BITs) with the Gulf State.
This article focuses on the MH17 Trial that is currently underway in the Netherlands, dealing with the shooting down of a civilian aircraft over Eastern Ukraine and the resulting deaths of all 298 persons on board. Two legal questions arising from the prosecutorial strategy to charge the four accused with ‘ordinary’ crimes under the Dutch Criminal Code—instead of with war crimes—are studied here. First, the jurisdictional basis on which the District Court of The Hague is trying MH17 , and its effect on the applicable laws, is examined. It is argued that, contrary to what the Prosecution has submitted, jurisdiction over the killing of the 93 non-Dutch nationals on board of flight MH17 can only be established on the basis of the less known title of delegated (representative) jurisdiction: a conclusion that also brings certain legal requirements. Second, this paper analyzes the way the MH17 Prosecutor defined the notion of ‘combatant’s privilege’ under international humanitarian law and his arguments for rejecting a combatant status for the separatist armed forces that shot down flight MH17 over Eastern Ukraine. All this analysis is then used to explain why it was indeed more sensible for the Prosecution to charge the four accused with murder and intentionally causing an aircraft to crash under Dutch criminal law, than with war crimes under international law.
The Jurisdiction of the International Criminal Court over Nationals of Non-States Parties - by Monique Cormier August 2020
An Introduction to the International Criminal Court - by William A. Schabas July 2020
Cambridge Core - International Relations and International Organisations - An Introduction to the International Criminal Court - by William A. Schabas
The dissertation deals with the questions surrounding the legal, ethical and strategic aspects of armed drones in warfare. This is a vast and complex field, however, one where there remains more conflict and debate than actual consensus.One of the many themes addressed during the course of this research was an examination of the evolution of modern asymmetric transnational armed conflict. It is the opinion of the author that this phenomenon represents a “grey-zone”; an entirely new paradigm of warfare. International terrorism has not been dealt with in a cohesive fashion. Any international prosecution of terrorism which has been conducted has been either “sectoral” adopting a piecemeal typological approach or has been carried out at the domestic level.A novel approach to the problem, of subnational actors with transnational reach, was proposed, by attributing certain groups with a new legal personality, that of “Stateless International Entities”, or “SIEs”. Those groups who possess, for all intents and purposes, the same attributes as those of States, could then be judged for their behavior before an international tribunal. Other important topics addressed in this research include an examination of important case law, targeted killing, autonomy, preemption versus prevention, imminence versus intent, the find, fix and finish paradigm, the impact of the media, and the role of the CIA, and finally, the flawed reasoning which adopts technology as a form of strategy.
Core crimes constitute violations of customary international law which allows for universal jurisdiction thereupon. Yet, we cannot extrapolate the applicability of the aut dedere aut judicare rule therefrom, nor can we extract it from their jus cogens status. This can be done by virtue of some determining factors. One of these relates to the qualitative gravity of core crimes, another emanates from an insufficient reach of international human rights law and a third can be triggered by acknowledging that non-prosecution could be tantamount to a threat to the peace. If a core crime is protected by a jus cogens norm and is subject to universal jurisdiction it is ipso facto, exercisable erga omnes. The execution of the aut dedere aut judicare rule in domestic courts may be equated to the assertion of universal jurisdiction by such domestic courts. The Hague formula favours a choice of the forum deprehensionis to either extradite or prosecute. It admits of two important variables, with the first variant being ‘the terrorism formula’ and the second off-shoot being ‘the drugs formula’. The fourth Geneva formula postulates the prioritization of prosecution over extradition. Limitations to the aut dedere aut judicare rule deriving from the principle of non-refoulement are also considered. The obligation to surrender which arises once the admissibility issue has been decided by the ICC, the Lockerbie incident (aut dedere aut transferre), gacaca tribunals, and the proposed EU corpus juris criminalis, may fall within the special category of alternatives to the aut dedere aut judicare formulae.
Cambridge Core - UN and International Organisations - An Introduction to International Criminal Law and Procedure - by Robert Cryer
This chapter examines three legal issues that may arise with respect to prosecution before the ICC of nationals of non-parties. One concerns the prohibition on retroactive criminalisation; another is the simultaneous applicability of different criminal codes; and a third is a potential violation of the rights of the non-party States. The chapter examines these questions by reference to situations presently under preliminary examination or investigation by the Office of the Prosecutor.
On July 17, 1998, the world community voted on the Rome Statute for the International Criminal Court (ICC,) which, if ratified by 60 countries, would establish for the first time in history, a permanent international criminal tribunal. The outcome was an overwhelmingly favorable vote, with 120 countries voting in favor, 21 abstentions, and 7 countries, including the United States, against. The idea of an international criminal court appeared to be in the making.
Cambridge Core - Public International Law - A Critical Introduction to International Criminal Law - by Carsten Stahn
El Sistema africano de Protección de los Derechos Humanos y de
los Pueblos tiene origen en la Carta de Banjul de 1981 y sus dos principales
órganos son La Comisión Africana de los Derechos Humanos
y de los Pueblos (ACoHR) y la Corte Africana de los Derechos Humanos
y de los Pueblos (ACHR). El presente capítulo se divide en dos
grandes secciones; en la primera, se aborda la actividad de la ACoHR;
y en la segunda, se aborda la actividad de la ACHR. En ambos se estudia
la actividad judicial y cuasi-judicial del sistema desde la puesta
en funcionamiento de estos dos órganos. Para ello, se aborda su establecimiento,
naturaleza, alcance, ámbito de jurisdicción, presupuesto,
el volumen y tipo de actividades (cuasi) judiciales adelantadas, el promedio
de tiempo que tarda una aplicación/solicitud en ser resuelta y
el seguimiento y ejecución de sus decisiones.
With the ad hoc tribunals completing their mandates and the International Criminal Court under significant pressure, today's international criminal jurisdictions are at a critical juncture. Their legitimacy cannot be taken for granted. This multidisciplinary volume investigates key issues pertaining to legitimacy: criminal accountability, normative development, truth-discovery, complementarity, regionalism, and judicial cooperation. The volume sheds new light on previously unexplored areas, including the significance of redacted judgements, prosecutors' opening statements, rehabilitative processes of international convicts, victim expectations, court financing, and NGO activism. The book's original contributions will appeal to researchers, practitioners, advocates, and students of international criminal justice, accountability for war crimes and the rule of law.
In this chapter and in accordance to the foregoing examination it will be determined how the subject-matter of the twin-pillar system lead to the response of the book, whether the ICC could be regarded as an International Criminal World Court which already at that stage has potentially worldwide jurisdiction upon every national of any State; may it be a Member or a Non-Member State to the Statute. The judicial pillar entails the analysis of significant provisions which deal with the “heart of the Statute”, the jurisdiction system of the Court, article 12 (2) (a) and 13 (b) Rome Statute. The huge controversies of these two articles are essential in response to the question and will therefore be portrayed extensively. Furthermore, attention will be paid on articles like 15 bis, 15 ter, 16, 17 and 124 to examine if these provisions may bar the Court to exercise its jurisdiction. Moreover, emphasis will be put on the enormously important article 27, which contains the irrelevance of the official capacity. Notwithstanding the analysis of the article itself, it will be also incidentally addressed and examined in relation to the jurisdiction mechanism regarding article 12 (2) (a), article 13 (b) as well as with respect to the cooperation and especially the matter of conflicting obligations, pursuant to article 98 (1). After verifying to what extent the judicial pillar underlines the question of the book affirmatively, an examination of the enforcement pillar will be evaluated. Whereas firstly the theoretical strength of the Court through the applicability of its provisions with regard to international cooperation and judicial assistance will be presented, extensive attention will be focused on the practical implementation of the Rome Statute’s provisions regarding cooperation and judicial assistance, thus States practice, to determine whether the cooperation system and therefore the whole enforcement mechanism of the Court operates effectively. In order to strengthen the cooperation regime of the ICC, possible new solutions will be examined. The conclusion will entail an extensive analysis of the statutory regime and its practical implementation in order to determine whether the ICC can be designated as an independent International Criminal World Court.
This chapter investigates the second aspect of the universal value debate, namely whether the universal system of core crimes, in case of non-prosecution of an alleged perpetrator of international crimes at a national level, is unjustifiably imposed on sovereign states in the context of international criminal law enforcement, as were Western values during colonial times. With respect to the neo-colonialism claim, this is important because the violation of the sovereignty of states is an important feature of neo-colonial dependencies. In the first part of this chapter, the doctrine of universal jurisdiction and the concept of amnesties are juxtaposed to assess the hierarchical relation between those concepts in terms of international law (Sect. 7.1). The section concludes that universal jurisdiction provides third states with the power to disobey a state’s decision to grant domestic amnesty, even in case the amnesty does not contravene international law. Second, the imposition claim is analysed with respect to the ICC’s exercise of jurisdiction against nationals of non-party states in the context of Articles 12(2)(a) and 13(b) of the Rome Statute. With respect to both provisions, the Court may, in accordance with international law, legitimately overrule the sovereignty of non-party states if national authorities remain inactive regarding a specific situation or case (Sect. 7.2). Section 7.3, finally, combines the findings of Part II, evaluating the consequences for our definition of legal neo-colonialism.
Terrorism, drug trafficking, and internecine conflict spurred revival in 1989 of a decades-old proposal for an international court to judge persons accused of the world’s worst crimes. Within years the Security Council of the United Nations established ad hoc tribunals for Rwanda and the former Yugoslavia, amid negotiations for a permanent tribunal with broader jurisdiction. Diplomats produced a statute for the International Criminal Court at a conference in Rome in 1998.2 A majority of the world’s states welcomed the institution the statute envisioned, so much so that the treaty bearing the statute took effect a scant four years later. A few states nonetheless voiced opposition. Unremitting resistance has come from the United States. US critics variously have said that the ICC Statute: contains a provision “contrary to the most fundamental principles of treaty law”;3 suffers from a “deep democratic defect”;4 and is “a fundamental threat to American sovereignty”.5 Examination of such complaints, cloaked as they are in certain notions of sovereignty and the role of the nation-state, may contribute to a larger understanding of the contemporary challenges of global governance.
This paper argues that cosmopolitan law has been more successfully achieved not by appeal to a supra-state authority or community, but by the development of features of existing treaty law. Specifically, it shows how the International Criminal Court's jurisdiction over serious human rights violations has been extended to the citizens and territories of non-member states-and even to otherwise immune state officials-not by challenging the sovereignty of non-member states directly, but on the basis of member states' own territorial sovereignty and the universal jurisdiction which they delegate to the Court and to the United Nations Security Council. In light of this, the authors argue that cosmopolitanism is better conceived not as invoking an independent sense of global community that supersedes and constrains state sovereignty, but as an immanent, contingent and creative development of statist criminal law itself, rooted in its principles of state sovereignty.
The crime of aggression has been a mainstay of international criminal law since Nuremberg, and arguably years before. Despite its pedigree, the definition of aggression remains elusive. Although international criminal law has evolved dramatically over the past sixty years, legal thinking about the crime of aggression has not kept pace. This gap is most evident in the Rome Statute establishing the International Criminal Court, which includes aggression within its list of punishable offenses, but has yet to adopt a definition for it. This Note addresses whether the crime of aggression should remain such a key fixture in international criminal law, and concludes that the recent trend in international criminal law towards victim-centered, rather than perpetrator-centered, justice counsels against punishing individuals for the crime of aggression, and instead supports withdrawing the crime of aggression from the jurisdiction of the ICC. In addition, this Note concludes that if punishment is at all warranted, it should be borne by the state, since it is the state, not the individual, who is the perpetrator of aggression.
The International Criminal Court has institutionalized the concept of individual responsibility for human rights violations. The jurisprudence of international criminal law has developed along with the institution. Affirmative defenses in the mitigation of punishment or avoidance of responsibility are becoming increasingly important in international criminal procedure. We contend that diminished culpability based on advances in neuroscience provides the most challenging set of choices for the international legal community. Of the variety of affirmative defenses, emerging neuroscience-based defense provides the most challenging set of choices for the international legal community. The Esad Landzo case at the ICTY brings these challenges into focus. We discuss the difficult choices the ICC will have to make to balance the rights and needs of the victims, and the due process rights of the accused.
This article addresses contentious questions about the International Criminal Court’s temporal jurisdiction pursuant to a
declaration by a state under Article 12(3) of the Rome Statute. In particular, it argues that such declarations can be effective
retroactively; that — notwithstanding the express terms of Article 12(3) — states parties can make 12(3) declarations; and
that newly-created states can give the Court jurisdiction over crimes committed even before their birth.
This article considers the types of immunity available to state officials and their applicability in national and international prosecutions for international crimes. The author analyzes the tensions between the provisions of the ICC Statute dealing with immunity and argues that while the immunities of officials of nonparties remain unaffected by the Statute, ICC parties have accepted obligations going beyond customary law in relation to their own officials.
The United States was one of only seven states to vote against the creation of the International Criminal Court (ICC) in 1998. Since the inception of the Court in 2002, US hostility toward the court has intensified. The jurisdictional constraint of complementarity and a multiplicity of bilateral immunity agreements (BIAs) and status of forces agreements (SOFAs) mean United States military and civilian personnel practically speaking could never be prosecuted before the ICC. Despite these virtually insurmountable institutional barriers to the prosecution of US citizens, the US Senate has maintained a strident opposition to the ratification of the treaty in the most belligerent terms possible. While the US could have engaged in high profile "cheap talk" –seizing the moral high ground of supporting the ICC while facing no risk of prosecution – the Senate instead has taken every opportunity to undermine the ICC. The traditional explanation for this hostility towards the ICC is couched in terms of a general reluctance to delegate any national sovereignty to an international organization. This traditional explanation fails in the shadow of the WTO, NAFTA, CAFTA, and a host of economically oriented organizations as well as the International Court of Justice. Why then is the ICC an especially unacceptable institution for the US Senate? We argue that the institutional structure of the Senate and the concomitant electoral logic for every senator explain this hostility. In short, Senators are loathe to supply a potentially incendiary issue – allowing an international tribunal to have nominal jurisdiction over US troops – to potential rivals for their otherwise generally safe seats. Given the spread of Department of Defense spending and personnel across the entire state of every senator, the issue is ubiquitous across the electoral horizon of every incumbent. Thus, the hostility is grounded in the electoral logic of the institution.
Convention and Protocol on the Suppression of Unlawful Acts Against the Safety of Maritime Navigation, adopted by the International Maritime Organization
- I M O Doc
Convention and Protocol on the Suppression of Unlawful Acts Against the Safety of Maritime
Navigation, adopted by the International Maritime Organization, at Rome, Mar. 10, 1988, I.M.O. Doc.
4: duty to punish; art. 6: duty to establish jurisdiction; art. 8: duty to prosecute or extradite; art. 12: duty to prosecute in prosecution); see also Samuel M. Witten, Current Developments: The International Convention for the Suppression of Terrorist Bombings, 92 AM
): recognition as crime; art. 4: duty to punish; art. 6: duty to establish jurisdiction; art. 8: duty to prosecute
or extradite; art. 12: duty to prosecute in prosecution); see also Samuel M. Witten, Current Developments:
The International Convention for the Suppression of Terrorist Bombings, 92 AM. J. INT'L L. 774 (1998).
(destruction of aircraft); id. § 37 (violence at international airports); id (threats and violence against foreign officials); id. § 1203 (hostage taking); id. § 1653 (piracy); id
- See Randall
See Randall, supra note 22, at 820; see, e.g., 18 U.S.C. § 32 (1994) (destruction of aircraft); id. § 37
(violence at international airports); id. § § 112, 878, 1116 (threats and violence against foreign officials); id. §
1203 (hostage taking); id. § 1653 (piracy); id. § § 2280-81 (violence on or against ships and fixed platforms);
at 14 (suggesting that application of Torture Convention to nationals of non-party states is appropriate "because universal jurisdiction over torture is permitted as a matter of customary international law
- See Bodansky
See Bodansky, supra note 23, at 14 (suggesting that application of Torture Convention to nationals
of non-party states is appropriate "because universal jurisdiction over torture is permitted as a matter of
customary international law.");
Extradition and United States Prosecution of the Achille Lauro Hostage-Takers: Navigating the Hazards, 20 VAND
- Jordan Paust
Jordan Paust, Extradition and United States Prosecution of the Achille Lauro Hostage-Takers:
Navigating the Hazards, 20 VAND. J. TRANSNAT'L L. 235, 254 (1987).
); see also Geoffrey R. Watson, The Humanitarian Law of the Yugoslavia War Crimes Tribunal: Jurisdiction in Prosecutor v. Tadic, 36 VA
AR72, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction ¶ 58 (Appeals
Chamber, Oct. 2, 1995); see also Geoffrey R. Watson, The Humanitarian Law of the Yugoslavia War Crimes
Tribunal: Jurisdiction in Prosecutor v. Tadic, 36 VA. J. INT'L L. 687, 707 (1996).
The Universality Principle and War Crimes
- See Yoram Dinstein
- Michael Schmitt
- Leslie
- The Green
- Law
- Of
- Conflict
See Yoram Dinstein, The Universality Principle and War Crimes, IN MICHAEL SCHMITT &
LESLIE GREEN, THE LAW OF ARMED CONFLICT: INTO THE NEXT MILLENNIUM 17-37 (1998);
from the Charge d'affaires, a.i., of the Permanent Mission of Yugoslavia to the United Nations Addressed to the Secretary-General
See Letter Dated 19 May 1993 from the Charge d'affaires, a.i., of the Permanent Mission of
Yugoslavia to the United Nations Addressed to the Secretary-General, U.N. Doc. A/48/170-S/25801
[hereinafter Charge d'affaires Letter], reprinted in 2 MORRIS & SCHARF, AN INSIDER'S GUIDE, supra note
66, at 479-80.
AT 39. 257. See Morris, High Crimes and Misconceptions, supra note 13, at 46 (presenting the hypothetical). 258. See id. at 65. 262. The committee, which was chaired by Julian Schutte, was composed of experts from 13 member States of the Council of
- See Rome Treaty In
- The Bassiouni
- Statute
- Of
- International
- Court
See Rome Treaty, supra note 4, arts. 86-102, reprinted in BASSIOUNI, THE STATUTE OF THE
INTERNATIONAL CRIMINAL COURT, supra note 4, AT 39.
257. See Morris, High Crimes and Misconceptions, supra note 13, at 46 (presenting the hypothetical).
258. See id. at 65.
262. The committee, which was chaired by Julian Schutte, was composed of experts from 13 member
States of the Council of Europe (Austria, Belgium, Denmark, France, Federal Republic of Germany, Italy,
Luxembourg, Netherlands, Norway, Portugal, Spain, Switzerland, and the United Kingdom).
Extraterritorial Criminal Jurisdiction, reprinted in 3
- Europe Council
Council of Europe, Extraterritorial Criminal Jurisdiction, reprinted in 3 CRIM. L. F. 441, 452 (1992).
264. Id. at 452.
273. Schwelb, supra note 213
- Roger Clark
- Tokyo In
- Contemporary Perspective
- The In
- Law
- National War Crimes
- And
- Approaches
Roger Clark, Nuremberg and Tokyo in Contemporary Perspective, in THE LAW OF WAR CRIMES,
NATIONAL AND INTERNATIONAL APPROACHES 172 (Timothy L. H. McCormack & Gerry J. Simpson,
eds. 1997).
273. Schwelb, supra note 213, at 210.
274. Kelsen, supra note 222, at 518-19, 520.
A Response to the American View as
- Gerhard Hafner
Gerhard Hafner et al., A Response to the American View as Presented by Ruth Wedgwood, 10 EUR.
J. INT'L L. 108, 121 (1999).
The Rome Conference on the International Criminal Court: A Comment
- Philippe Kirsch
Philippe Kirsch, The Rome Conference on the International Criminal Court: A Comment, ASIL
NEWSLETTER 1 (Nov./Dec. 1998).
Convention and Protocol on the Suppression of Unlawful Acts Against the Safety of Maritime Navigation, adopted by the International Maritime Organization
- David J Scheffer
David J. Scheffer, Speech at the Twelfth Annual U.S. Pacific Command International Military
Operations and Law Conference, Honolulu, Hawaii, Feb. 23, 1999, available at <http://www.state.gov/
191. Convention and Protocol on the Suppression of Unlawful Acts Against the Safety of Maritime
Navigation, adopted by the International Maritime Organization, at Rome, Mar. 10, 1988, I.M.O. Doc.
This Convention implements international law by making it a universal jurisdiction crime to attack neutral persons deployed on behalf of the UN
- Tjagsa Practice Note
TJAGSA Practice Note, 1999 ARMY LAW. 21, 22 (1999) ("This
Convention implements international law by making it a universal jurisdiction crime to attack neutral
persons deployed on behalf of the UN.").
destruction of aircraft); id. § 37 (violence at international airports); id. § § 112, 878, 1116 (threats and violence against foreign officials)
- See Randall
See Randall, supra note 22, at 820; see, e.g., 18 U.S.C. § 32 (1994) (destruction of aircraft); id. § 37
(violence at international airports); id. § § 112, 878, 1116 (threats and violence against foreign officials); id. §
1203 (hostage taking);
198. Id. 199. 924 F.2d 1086 (D.C. Cir. 1991); see also Mason H. Drake, United States v. Yunis: The D.C. Circuit's Dubious Approval of U.S. Long-Arm Jurisdiction Over Extraterritorial Crimes
- Malvina Halberstam
Malvina Halberstam, Terrorism on the High Seas: The Achille Lauro, Piracy and the IMO
Convention on Maritime Safety, 82 AMER. J. INT'L L. 269, 272 (1988).
198. Id.
199. 924 F.2d 1086 (D.C. Cir. 1991); see also Mason H. Drake, United States v. Yunis: The D.C. Circuit's
Dubious Approval of U.S. Long-Arm Jurisdiction Over Extraterritorial Crimes, 87 NW. U. L. REV. 697
(1993);
Aircraft Piracy-Federal Jurisdiction-Nonresident Alien on Foreign Soil, 83 AM
- D Peter
- Trooboff
Peter D. Trooboff, Aircraft Piracy-Federal Jurisdiction-Nonresident Alien on Foreign Soil, 83
AM. J. INT'L L. 94 (1989).
A/34/146, reprinted in 18 I.L.M. 1456. 202. See UNITED STATES DEPARTMENT OF STATE
Dec. 18, 1979, U.N. G.A. Res. 34/145 (XXXIV), 34 U.N. GAOR Supp. (No. 46), at 245, U.N. Doc.
A/34/146, reprinted in 18 I.L.M. 1456.
202. See UNITED STATES DEPARTMENT OF STATE, TREATIES IN FORCE 386 (Pub. No. 9453) (1990)
(listing parties to the treaty).
High Crimes and Misconceptions, supra note 13
- Morris
Morris, High Crimes and Misconceptions, supra note 13, at 35-36 (footnote omitted).
Exercise of ICC Jurisdiction, supra note 13
- Morris
Morris, Exercise of ICC Jurisdiction, supra note 13, at 11.
Inter-State Cooperation in Penal Matters Within the Council of Europe Framework, 2 BASSIOUNI, supra note 250
- See Ekkehart Muller-Rappard
See Ekkehart Muller-Rappard, Inter-State Cooperation in Penal Matters Within the Council of
Europe Framework, 2 BASSIOUNI, supra note 250, at 331;
See Ellis & Pisani, supra note 253, in 2 BASSIOUNI, supra note 250, at 406-07. 256. See Rome Treaty, supra note 4, arts
- Bahamas
- Belgium
- Canada
- The Cayman Islands
- Colombia
- Hungary
- Italy
- Jamaica
- Mexico
- Morocco
- Netherlands
- Nigeria
- Panama
- Philippines
- Poland
- South Spain
- Korea
- Thailand
- United Turkey
- Uruguay Kingdom
Bahamas, Belgium, Canada, the Cayman Islands, Colombia, Hungary, Italy, Jamaica, Mexico, Morocco, the
Netherlands, Nigeria, Panama, the Philippines, Poland, Spain, South Korea, Thailand, Turkey, the United
Kingdom, and Uruguay. See Ellis & Pisani, supra note 253, in 2 BASSIOUNI, supra note 250, at 406-07.
256. See Rome Treaty, supra note 4, arts. 86-102, reprinted in BASSIOUNI, THE STATUTE OF THE
INTERNATIONAL CRIMINAL COURT, supra note 4, AT 39.
It is not only the Rwandese people that are affected by such grave violations of human rights and the fundamental values of mankind, but the entire international community
- Sess
Sess., 3453rd mtg. at 6, U.N. Doc. S/PV 3453 (1994) ("It is not only the Rwandese people that are affected
by such grave violations of human rights and the fundamental values of mankind, but the entire
international community."); Statement of Pakistan, U.N. SCOR, 49th Sess., 3453rd mtg. at 10, U.N. Doc.
Extraterritorial Criminal Jurisdiction
Council of Europe, Extraterritorial Criminal Jurisdiction, reprinted in 3 CRIM. L. F. 441, 452 (1992).
264. Id. at 452.
The European System, in 2 BASSIOUNI, supra note 250
- See Julian Schutte
See Julian Schutte, The European System, in 2 BASSIOUNI, supra note 250, at 661.
Under the Convention, the requesting state's jurisdiction is "transferred" to the requested state in that the Convention prohibits the requesting state from subsequently prosecuting the suspect for the offense in question
- Id
Id. at 648. Under the Convention, the requesting state's jurisdiction is "transferred" to the
requested state in that the Convention prohibits the requesting state from subsequently prosecuting the
suspect for the offense in question. Id. at 650.
267. Council of Europe, Explanatory Report on the European Convention on the Transfer of
Proceedings in Criminal Matters 20 (Strasbourg, 1985).