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International Justice and the International Criminal CourtBetween Sovereignty and the Rule of Law$

Bruce Broomhall

Print publication date: 2004

Print ISBN-13: 9780199274246

Published to Oxford Scholarship Online: January 2010

DOI: 10.1093/acprof:oso/9780199274246.001.0001

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From National to International Responsibility

From National to International Responsibility

Chapter:
(p.25) II From National to International Responsibility
Source:
International Justice and the International Criminal Court
Author(s):

Bruce Broomhall

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780199274246.003.0003

Abstract and Keywords

This chapter examines how the principles of clarity and non-retroactivity have been brought to bear upon international criminal law, in particular in the negotiation of the Rome Statute of the ICC. It then treats the rationale that legitimates the intrusion of international criminal law into the otherwise sacrosanct domain of sovereignty. This rationale rests on two basic principles underlying the core of international criminal law: ‘international peace and security’ and ‘the collective conscience of humankind’.

Keywords:   clarity, non-retroactivity, international criminal law, Rome Statute, ICC, sovereignty

Once it is acknowledged that there is a core of international criminal law that imposes responsibility upon individuals directly under international law, the question arises how individuals become responsible under international and not merely under national law. In other words, how do crimes rise to the level of being core crimes, particularly from being crimes under suppression conventions?

That a crime be of concern to the international community is, of course, a prerequisite to its being subject to international regulation at all. Normally, some cross-boundary element in the crime itself (or occurrence outside the jurisdiction of any State, as with piracy on the high seas) or the prevalence of cross-boundary factors in the occurrence of the crime (as with international drug trafficking and terrorism) is what engenders the concern. Such international concern underlies both cooperation regimes, including suppression conventions, and core crimes. To distinguish a core crime, attracting responsibility without the intermediation of national law (pp. 19–23 above), something more is required. That a State is responsible under international law for failing to suppress torture or drug trafficking clearly does not by itself decide whether individuals are or are not also internationally responsible.

Any suppression convention prohibition could in principle give rise over time to direct individual responsibility under international law. States would be reluctant to recognize new developments in international responsibility as legitimate, however, unless the effect of the conduct in question on fundamental interests of the international community was so great and so immediate as to warrant it. This was the case following the Second World War, when prior legal developments, the official position of the accused, the monumental disruption of international peace, and the enormity of the acts charged all converged to justify what amounted to a quantum leap in the progressive development of the law.

While the type of leap represented by Nuremberg is not impossible in the present day, it is more likely that gradual efforts towards codification through multilateral negotiations, in particular through amendment of the Rome Statute of the ICC, will characterize the expansion of international criminal law in future. This is not least because of expectations that will have been established by the decision, taken early in the course of ICC negotiations, to include express definitions of crimes within the Rome Statute. Before examining again the question of how prohibitions rise to join the ‘core’ of crimes under international law (at pp. 34–9 below) the principle of legality (p.26) (or nullum crimen sine lege) and its role in promoting the codification of international criminal law is reviewed.

1. CLARITY AND PROSPECTIVITY

(a) The Principle nullum crimen sine lege in international law

Clarity and non-retroactivity are key components of the principle of legality, nullum crimen sine lege (‘no crime without law’), a basic maxim of any criminal justice system claiming to be guided by the rule of law.1 It is now codified in Article 22 of the Rome Statute.

The principle of legality promotes a legal system's legitimacy by limiting the interventions of its criminal process to those clearly prescribed in advance by law. It assumes a rational, autonomous legal subject and a known or knowable law. It posits that the deterrent potential of the law, its power to influence the decision-making of individuals in a socially constructive way, arises from its rational and knowable character. Where legal subjects make choices relying on the apparent sense of the law, and nonetheless find themselves tried and convicted, the law has effectively been applied ex post facto to them, and the administration of justice is accordingly brought into disrepute.2 A system supporting retroactive application and vagueness in definition lends increasing discretion to the judiciary and (in national systems) to the police. In its extreme form, neglect of this principle coincides with an abandonment of the rule of law and is a characteristic of unfettered authoritarianism.3

The principle plays a ‘constitutional’ role in maintaining the separation of powers as well. As a principle of legislation, nullum crimen sine lege constrains law-makers to set out their intentions clearly and in advance of the conduct over which they wish the courts to exercise jurisdiction.4 It thereby seeks to protect the subjects of the law from indeterminate executive interference. As a principle of interpretation, nullum crimen aims to limit the power of the (unelected) judiciary to extend the interference with liberty beyond that which a reasonable individual could infer from the words of the relevant prohibition. Just as subjects are presumed capable of knowing and have a duty to (p.27) obey the law, so too is the law-maker responsible for making the law clear and ascertainable, while the judiciary is obliged in principle to refrain from penalizing conduct not intended by the legislator to be criminal.5

As is the case with criminal law doctrine generally, the principle of legality and its corollaries originated in municipal law. Its lineage can be traced to Roman law, although in its modern manifestation it is a product of the Enlightenment. Its entrenchment as a cornerstone of national law took place over the course of the late eighteenth and in the nineteenth centuries.6 By the start of the First World War, it was recognized in the legal systems of all developed countries and their dependent territories, although not always in the same way. In particular, there was a major difference between common law jurisdictions—in particular the United Kingdom—and Continental (Romano-Germanic) systems. For the former, the rule against retroactivity was a presumption that could be refuted by clear statutory wording. In the latter, the principle was more firmly adhered to. In the former, crimes could be developed by analogy as part of the gradual development of the law, while in the latter, such development was strictly limited to minor infractions. Its Constitution made the United States an exception among the common law systems, since retroactivity was constitutionally prohibited.7

The movement from being a principle primarily of national law to being one clearly and firmly entrenched in international law was a product of the Second World War and its aftermath. Between the wars, some jurisdictions retreated from the principle as totalitarian governments sought to extend the powers of a politicized judiciary by recognizing broad powers to criminalize by analogy. Such efforts led, at the end of the Second World War, to the recognition of the principle of legality in the judgment of the Nuremberg Tribunal, in the Universal Declaration of Human Rights (‘UDHR’), and later in the International Covenant of Civil and Political Rights (‘ICCPR’).8

(p.28) Article 15(1) of the ICCPR recognizes nullum crimen in its usual form as protecting against retroactivity, and echoes Article 11(2) of the UDHR.9 Article 15(2) emphasizes that absence of criminal prohibition under national law is no bar to prosecution for conduct criminal under international law at the time of its commission.10 That the state of national law is not determinative for purposes of international criminality is a necessary corollary of the prohibition of any defense of prior legality in the Nuremberg Charter. The latter ‘defense’, and the objection that national law did not prohibit the international crime at the time it was committed, may sometimes be raised on the basis of nullum crimen, but only by misunderstanding the principle's proper scope.11 The international criminal law pertaining to the ‘core crimes, recognized from the Charter and Judgment of the Nuremberg Tribunal to the Rome Statute of the International Criminal Court is based on the assumption of individual responsibility directly under international law. As such, the international principle of nullum crimen,12 at least with respect to these crimes, does not require prohibition by national law. To allow otherwise would be to allow individual States to legislate their agents out of their international responsibility.13

(b) The Draft Code of Crimes Against the Peace and Security of Mankind

The first effort to establish a definitive codification of international criminal law was the work of the International Law Commission on a Draft Code of Crimes Against the Peace and Security of Mankind.

The Draft Code shares common origins with the Nuremberg Principles and the International Criminal Court. The General Assembly first asked the ILC to prepare a draft Code in the same resolution that asked it to formulate the principles of international law recognized in the Nuremberg Charter and (p.29) Judgment.14 After submitting its formulation of the Nuremberg Principles to the General Assembly in 1950,15 the Commission adopted draft Codes in 1951 and 1954.16 Despite this early progress, the draft Code fell victim to Cold War paralysis in the same way as did the establishment of a permanent ICC.17 It was not until 1981 that the ILC, at the General Assembly's request,18 resumed the project, intensifying its work to adopt provisionally at first reading a draft Code in 1991 and to adopt at second reading a further and substantially modified draft in 1996. While the 1991 draft contained twelve categories of crimes, the 1996 draft contained only five (aggression, genocide, crimes against humanity, crimes against United Nations and associated personnel, and war crimes). The Commission reduced the scope of the Draft Code in response to the interest of adoption of the Code and of obtaining support by Governments'.19 The Commission recommended that the General Assembly decide whether the Code be adopted as an international convention, be incorporated into the Statute of an international criminal court, or be adopted as a declaration of the General Assembly.20 Understandably, the General Assembly has not proceeded with the Code. Once the decision was made to make the Rome Statute of the International Criminal Court a de facto criminal code by including exhaustive definitions of crimes, defenses, and general principles of criminal law, the impetus to bring the Draft Code to fruition could only diminish (see below).21 The provision in the Rome Statute of a clause allowing inclusion of further crimes at a later date (Article 121(5)) increased the potential of the Statute to deplete the Draft Code of any (p.30) Independent raison d'etre. As a result, one can conclude that the half-century effort to adopt a Draft Code has now been superseded by the negotiation of the Rome Statute for the ICC.

(c) Nullum crimen in the negotiation of the Rome Statute

As a principle of legislation, nullum crimen was brought to bear on the processes leading to the adoption of the Rome Statute. Offering a means both of limiting exposure to the obligations imposed by the Statute and of fostering codification and development of the law, the principle encouraged clearer stipulation of procedural detail, exhaustive definitions of crimes, movement of general principles from the proposed Rules to the Statute, and much else.22 This function of the principle was merely a continuation of its role in driving efforts to codify international criminal law, primarily through the work of the International Law Commission, from 1946 onwards.23 It similarly reflected a desire to forestall any repetition of the criticisms aimed at the Nuremberg Tribunal, which had already been taken into account in the establishment of the ICTY and ICTR.24

The 1994 Draft Statute of the International Law Commission25 applied the nullum crimen principle so as to reflect that Draft's proposed jurisdictional distinction between crimes under general international law (which applied directly to individuals) and treaty crimes (which normally applied only through national law). With respect to the former, Article 39(a) provided that an accused would not be held guilty of genocide, aggression, serious violations of the laws and customs applicable in armed conflict, or crimes against (p.31) humanity unless the act or omission in question constituted a crime under international law at the time it occurred. It therefore did no more than apply the prohibition against retrospective application of the criminal law. Provided the conduct was criminal under international law at the time of occurrence, the ICC would be able to exercise jurisdiction, even where national courts, because of a failure to incorporate the relevant prohibitions into national law26 or because of national laws contrary to them, could not.

As a constraint on law-making, the principle of legality was relied upon by those seeking to have the crimes within the jurisdiction of the Court defined expressly in the Statute, rather than leaving the Court to interpret general international law. The rationale was that general international law might not set out the elements of the offences with sufficient precision, particularly where the crime in question was not defined by a general treaty (as with aggression).27 The result was a move towards the vision, finally affirmed in the Rome Statute, of a Court whose subject-matter jurisdiction is exhaustively defined in its constitutive instrument. Motivated in part by legitimate uncertainty as to customary international law's definitions of the offences in question, the move also resulted from the awareness of governments that they were designing an institution that could possibly bring indictments against even their highest-ranking officials. This awareness put a premium on the clear delimitation of Court jurisdiction.

Responding to such pressures, the ILC replaced its earlier proposal to define the Court's jurisdiction by reference to ‘crimes under general international law’28 with a list specifying four such crimes (as well as treaty crimes).29 Despite acceding to Sixth Committee criticisms on this point, the ILC maintained that the Statute should be ‘primarily an adjectival and procedural instrument. It is not its function to define new crimes. Nor is it the function of the Statute authoritatively to codify crimes under general international law1.30 Thus, the Court would determine the exact contents of the (p.32) listed prohibitions by resort to the relevant sources of international law. While the ILC was willing to contemplate a gradual, judicially led process to determine the scope and content of much of the ICC's legal substance and procedure, the subsequent process saw the adoption of a more cautious approach, in which express and near-exhaustive definitions of crimes, of defenses, and of most principles of criminal law were included in the Statute itself. The ILC approach aimed to keep the task of establishing the ICC from becoming bogged down in the elaboration of a de facto criminal code, thus taking advantage of the delinking of the ICC from the Draft Code of Crimes Against the Peace and Security of Mankind, with which it had been paired off and on since 1948.31 The ILC may have been concerned in part that too firm a link between the Draft Code and the ICC might prove fatal to the negotiation of the latter.

Concerns about the ILC approach were raised in the 1995 Ad Hoc Committee, where the view was expressed that the principle of legality required the definition and not merely the enumeration of crimes, and indeed that it required definitions of general principles, defenses, and the applicable procedural and evidentiary law as well.32 At the 1996 Preparatory Committee, there was widespread agreement that ‘the crimes within the jurisdiction of the Court should be defined with the clarity, precision and specificity required for criminal law in accordance with the principle of legality (nullum crimen sine lege) and that the fundamental principles of criminal law and the ‘general and most important rules of procedure and evidence should be clearly set out in the Statute for the same reason.33 Only by knowing the scope of the crimes and defenses, and the basic principles involved, could States gauge the extent to which their leaders and agents would be vulnerable to international prosecution.34

The 1996 Preparatory Committee text contained three proposals. The first changed little of the content of the ILC Draft,35 but introduced the precursor to the present Article 22(3) and a stipulation that the more lenient law would (p.33) apply in case of an amendment between the commission of the offence and final judgment. It also introduced the requirement that any commission of a ‘core’ crime occur after the entry into force of the Statute. The second and third proposals also contained this latter requirement.36 The second proposal contained a further prohibition on the use of analogy in construing punishable conduct or imposing sanctions.

With the moving of the provisions on jurisdiction ratione temporis into a separate provision, the February 1997 Preparatory Committee text reflected a modified version of the first 1996 proposal, with a two-pronged paragraph on non-retroactivity of core crimes and treaty crimes, a bracketed paragraph prohibiting analogy, and a precursor to paragraph 22(3).37 This version, the basis for the present Article 22, appeared without significant changes in the text prepared at the inter-sessional Zutphen meeting in January 1998.38 The same wording appeared with insubstantial changes in the final Preparatory Committee Draft that was placed before the Diplomatic Conference.39

At the Diplomatic Conference, the basic structure devised for Article 22 by the Preparatory Committee underwent little change. The suggested text of Per Saland, Chair of the Working Group on General Principles of Criminal Law,40 added to the prohibition on analogy in the second paragraph the requirement of strict construction and disallowed the proscription of conduct not clearly prohibited by the Statute.41 A note pointed out that the principle of legality would apply equally to all crimes within the jurisdiction of the Court, including crimes against the integrity of justice.42 The Working Group Report which followed43 incorporated the strict construction requirement and, with the changes made by the Drafting Committee subsequently,44 (p.34) resulted in the wording of the Bureau's Draft Statute45 and finally of the adopted text. The Working Group, Drafting Committee, and Bureau versions reflected the growing sense that treaty crimes would not be included in the initial Statute, and so omitted provision for them.

(d) Article 22 of the Rome Statute, and the ‘treaty crime’/‘core crime’ distinction

As finally adopted, Article 22 sets out the core prohibition on retroactive application of the criminal law, as well as two major corollaries of this prohibition, namely the rule of strict construction (including here the forbidding of extensions by analogy of the definitions of crimes) and the requirement that ambiguities be construed in favour of the suspect or accused. It reads:

Article 22

Nullum crimen sine lege

  1. 1. A person shall not be criminally responsible under this Statute unless the conduct in question constitutes, at the time it takes place, a crime within the jurisdiction of the Court.

  2. 2. The definition of a crime shall be strictly construed and shall not be extended by analogy. In case of ambiguity, the definition shall be interpreted in favour of the person being investigated, prosecuted or convicted.

  3. 3. This article shall not affect the characterization of any conduct as criminal under international law independently of this Statute.

‘Without law’ in the phrase ‘no crime without law’ does not of course mean that any law whatsoever will suffice. It requires a law reasonably ascertainable in advance: hence the corollaries to the principle expressly listed in Article 22. The rule of strict construction, which is not free from uncertainty and has been irregularly applied in common law jurisdictions,46 aims to ensure that criminal prohibitions are read to the advantage of the person being investigated or prosecuted, in accordance only with their clear meaning and with residual ambiguities resolved in favour of the defence. The prohibition on extending the definitions of crimes by analogy similarly ensures that individuals will only be convicted with respect to conduct making out the offence in question, not conduct making out something similar or analogous to that offence. Each of these corollaries is based on notions of fair warning to the subjects of potential criminal sanction and on an awareness of the inequality (p.35) of power between the individual and (under municipal law) the State. Each has the ‘constitutional’ rationale of ensuring that the judiciary interprets and applies, but does not make law.47

As embodied within Article 22, nullum crimen will act as a principle both of legislation and of interpretation. Legislatively, the Article will remind States Parties of the need for care in drafting amendments or additions to the crimes within the jurisdiction of the Court, as the Court will have only such scope of jurisdiction as the reasonably ascertainable and non-retroactive meaning of the words defining it. In this connection, it is interesting to note that the Court is not given the power to strike down crimes or otherwise refrain from giving effect to laws of indeterminate scope. There is no ‘Void for vagueness’ doctrine in the law of the ICC. This is not because the safeguards of Article 22 are comprehensive: a strictly construed, non-retroactive law may still be vague. The absence of any remedy for vagueness is presumably the result of both the general trend towards limiting rather than expanding the power of the judges vis-a-vis States Parties, and the feeling that States Parties as legislators could be trusted to delineate clearly the crimes that might ultimately be charged against their own agents.48 The latter feeling is given weight by the exhaustive attention paid to definitions during negotiations: a product, in large measure, of nullum crimen arguments.

As already stated, the nullum crimen principle provides certainty to both individuals and States. Individuals face the possibility of prosecution only with respect to the crimes that States Parties have clearly and exhaustively provided for in the Statute. For their part, States Parties are under an obligation to cooperate with the Court and to surrender jurisdiction to it in accordance with the complementarity provisions only in clearly delineated statutory circumstances. This is not because the provisions relating to the obligation to cooperate (for example) are subject to the rule of strict construction, but because such provisions will only come into play when crimes within the jurisdiction of the Court, which are so subject, are being addressed. It was largely because of this ability to clarify and to limit the obligations of States, and because of the likelihood that many defendants will be State agents, that the principle of legality was incorporated into the Statute as explicitly as it was.

As a result of its codification, one must now carefully distinguish the principle of nullum crimen sine lege as it exists under general international law from its manifestation in Article 22 of the Statute. As to the former, it will remain the case that individual responsibility arises directly under international law as it did before the entry into force of the Statute, and that the (p.36) principle of legality, as an principle of international law apart from Article 22, is satisfied with respect to such crimes as they exist outside the Statute. The international principle is broader in some respects than that inscribed in Article 22. One commentator asserts that it encompasses a broader allowance for prohibitions by analogy than do most domestic systems and is, in general, less rigid than its Article 22 manifestation.49 The international principle is adapted to the much less systematic arena of general international law.50 One result is that, anticipating indirect (national) rather than direct (international) enforcement, the principle as it exists at international law relies on supplementation by national law, and consequently does not require exhaustive international provision of applicable principles of procedure and evidence. In the case of the statute of an international court or tribunal, the principle may call for just such express provision.51

Should the Statute be amended at some future date to incorporate crimes set out in international treaties (such as drug trafficking or terrorist acts), nullum crimen as a principle of general international law may be interpreted so as to lead to the imposition of special requirements with respect to such crimes. Such requirements may then lead to the amendment of Article 22.

The ILC Draft adapted nullum crimen to the particular needs of treaty crimes in its Article 39(b). This provided that no accused would be held guilty of one of these crimes unless the treaty in question was ‘applicable’ to his or her conduct at the time of the relevant act or omission. Thus, a specification of applicability was added to the prohibition on retrospectivity that Article 39(b) shared with Article 39(a). The ILC understood that for the nullum crimen principle to be satisfied in the case of treaty crimes, the conduct in question would not only have to come within the words of the treaty's prohibition, but the treaty itself would have to apply to the conduct of the accused through the relevant State(s) being party to the instrument and, crucially, through the prohibition having been made a part of the law of the relevant State Party.52

(p.37) This acknowledges that not all treaties calling for the prohibition of certain conduct also entail the internationally enforceable criminal responsibility of individuals, absent some form of incorporation of the international agreement into national law.53 Agreements to prohibit conduct are relatively common between States, with the parties agreeing to penalize certain behaviour in their national legal systems and otherwise to cooperate in its suppression (see pp. 12-14 above). Such ‘suppression conventions’ create law of a different sort from prohibitions entailing individual responsibility directly under international law. With respect to treaty crimes, the ILC Draft intended in essence to provide international enforcement for national prohibitions. Under this vision, States would agree to the ICC as a supplementary enforcement mechanism, with no intention of creating international responsibility as such. Where the latter exists- for example, in the case of the ‘core crimes’ or ‘international crimes sensu stricto’ which originated in the Nuremberg Charter54 —there is no need for the prohibition to be made applicable to the accused under national law. But such a requirement does exist for many conventions including, to name but one, the 1988 Vienna Convention on Narcotic Drugs.55

Thus conduct falling within a treaty prohibition may not entail individual criminal responsibility if the prohibition did not apply as law to the accused. The Court would have to decide in a given case whether the treaty in question was applicable to the individual. There is no single means by which international agreements come so to apply. Ratification and the passage of implementing legislation carrying the prohibition into national law is one, but not the only, method. A State might not be party to a treaty or, being party, might not have made it part of domestic law.56 It may be applicable to an accused on more than one basis of jurisdiction (national, territorial, etc.) and the Court would have to examine each case individually to construe the intention (p.38) of the drafters. A relevant question is whether the parties to the treaty, in concluding it, intended that the prohibition in question apply directly to individuals, or whether it was intended only to entail State responsibility (i.e. for any failure to prohibit the conduct under national law).57

Article 22 is better suited in its present form to crimes under international law in the strict sense, that is, to the ‘core crimes’ now listed in Article 5 of the Statute. In the event that treaty crimes are incorporated into the Statute, Article 22 will have to be amended accordingly to give expression to the requirement that the treaty be ‘applicable’ to the conduct of the accused as the ILC, the Preparatory Committee, and the Diplomatic Conference all foresaw. Article 21 (applicable law) may also have to be amended to provide an expanded role to national law where treaty crimes are concerned.

To do otherwise—to amend the Rome Statute, to include e.g. terrorism or drug trafficking, without modifying the terms on which the Court holds an individual criminally responsible—would be to assume that the treaty crime had risen to the level at which responsibility is imposed directly upon individuals as a result of customary international law. A treaty prohibition may become so applicable to the individual through the action of custom or through the application of ‘general principles of law’; nonetheless, it should not be assumed lightly. Rather, the determination as to which of the many norms of international law, proscribing conduct of one sort or another, have joined the ‘core crimes’ would ideally be guided by a test distinguishing when those prohibitions impose international responsibility directly on the individual, and when they rely upon enactment through national law. In this vein, Meron writes:

whether international law creates individual criminal responsibility depends on such considerations as whether the prohibitory norm in question, which may be conventional or customary, is directed to individuals, whether the prohibition is unequivocal in character, the gravity of the act, and the interests of the international community. Those factors are all relevant for determining the criminality of various acts.58

This assessment relies, of course, on judgements as to ‘gravity’ and ‘interests’, which are inherently subjective.59 Nonetheless, this type of normative, multi-issue assessment might prove more useful than striving for quasi-algebraic exactness in isolating the factors involved.60 Among ‘the interests of the international (p.39) community’ to which Meron refers, it is argued below that ‘shocking the conscience of humankind’, disrupting ‘international peace and security’, and, related to these, ‘State action or policy’ are key factors upon which international criminalization rests. Such factors, however, can never be exhaustively defined and can, at best, provide only very tentative benchmarks by which to assess developments, as their deployment by the international community is subject to a range of circumstantial political and other forces. Because the judgement of States, individually and collectively, is subject to diverse extra-legal influences, the process of international criminalization will always be less orderly than its conceptual formulation. It is ultimately States that determine what constitutes an international crime, just as they are the ultimate arbiter of what comprises a ‘threat to international peace and security’, and what ‘shocks the conscience of humanity’. This potential circularity finds its limit in the pressure of legitimation applied between States and applied to States ‘from below’ by civil society.

(e) Is ‘terrorism’ a crime under international law?

‘Terrorism’ is not treated in the present work as a ‘core crime’ under international law for the simple reason that this author does not believe that it currently gives rise to individual responsibility directly under international law. States proposed to include ‘terrorism’ within the Rome Statute, and a definition was discussed in the process leading to adoption of the Statute.61 The only result was the commitment made, in the Final Act of the Diplomatic Conference, to re-consider the definition and inclusion of this crime, along with that of drug trafficking, at the first Rome Statute Review Conference.62

Rather than being a crime under international law, ‘terrorism’ is best viewed, at least at the present stage of development of international law, as a catch-all category for a number of crimes under suppression conventions. These crimes (hostage taking, aircraft sabotage, etc.) are punishable, (p.40) according to the applicable treaties, only under national law.63 While the international response to the destruction of the World Trade Center and related attacks within the United States on 11 September 2001 has made ‘terrorism’ the object of unprecedented world wide attention and condemnation, attempts to define a distinct crime with this name have been no more successful after 11 September than they were before.64 Recent international instruments,65 as well as domestic laws passed since 11 September, indicate that a comprehensive definition of ‘terrorism’ may yet emerge, albeit with a breadth of definition and a focus on the purported intent of perpetrators that raise real concerns about the definition's potential use against legitimate dissidents; it remains to be shown that the term can be applied impartially.66 For the present, it appears adequate that genocide, war crimes, and crimes against humanity define most of the acts that a definition of ‘terrorism’ might encompass.67 The only acts not covered by these crimes are those not committed in armed conflict, as part of a widespread or systematic attack on a civlian population, or with intent to destroy an identifiable group. Given the narrowness of the remaining ‘gap’ (if such it is) the drive to define a crime of terrorism is better viewed as politically rather than legally driven.

(p.41) 2. JUS COGENS, SOVEREIGNTY AND THE INTERNATIONAL INTERESTS UNDERLYING INTERNATIONAL CRIMINAL LAW

(a) Jus cogens and sovereignty

The core crimes of international criminal law are often cited as part of jus cogens, or peremptory norms of international law.68 The sources, nature, and implications of the concepts of jus cogens and obligations erga omnes have been much debated.69 As will be pointed out in relation to universal jurisdiction, the consequences sometimes ascribed to the jus cogens character of international crimes does not necessarily correspond to the reality of State behaviour in the contemporary international system.70 Nonetheless, the (p.42) concept of jus cogens may be helpful as showing a coherent view, at least at the doctrinal level, of the legal stature and consequences of these crimes.

The characterization of the core crimes of international criminal law as jus cogens has been conceived as an indication of how these crimes inhabit the ‘constitutional’ level of the international system, or of an emerging international system. Thomas Franck has articulated the idea of fundamental rules such as those underlying international criminal law as forming conditions on membership in the international community that, contrary to the ordinary practice of international law, are not themselves subject to the specific consent of States, except in the very act of accepting membership in the community itself. According to Franck, such ‘associative’ norms are part of an ‘ultimate canon’, acting as preconditions to the very recognition of sovereignty that constitutes a given State as a participant in the international community.71

The consistency of this idea with what was done at Nuremberg should be noted. At and parallel to Nuremberg, it was the interest of the Allies in preserving peace and security—an interest seen with unparalleled clarity after the catastrophic destruction of the War—that justified overriding previously sacrosanct doctrines of immunity and sovereignty. This broadening of international criminal law represented a movement within international law parallel to that which gave birth to the modern system of human rights protection, and which arose out of the same historical circumstances. The importance of Nuremberg therefore extends beyond the confines of international criminal law to underpin the relationship between sovereignty and the international system in the post-War era:

The principles of Nuremberg were not only the victory of justice over the intolerable fiction of the unassailable state, as well as an affirmation of the supremacy of a higher positive law; they were also the base upon which a positive international law of human rights could be built, namely, the identification of duties for those sharing in the exercise of power to respect, at least to a minimal extent, the dignity of those subject to that power.72

The imposition of individual responsibility would, it was hoped, provide a moral vindication and a practical support for the maintenance of international order. By marking the point at which sovereignty gives way to the (p.43) prerogatives of the international community, international criminal law's affirmation of the underlying interests of that community confirmed respect for these interests as a minimum condition of membership in international society.73

The idea that sovereignty does not arise in a vacuum, but is constituted by the recognition of the international community, which makes its recognition conditional on certain standards, has become increasingly accepted in the fields of international law and international relations.74 Such limits are held always to have been imposed by the community on the recognition of its members, but to be subject to development over time. From this perspective, crimes under international law can be understood as a formal limit to a State's legitimate exercise of its sovereignty, and so in principle justify a range of international responses (subject to the rest of international law, including that relating to the use of force).

The ‘international order’ rationale and the functional limit to sovereignty which that arguably represents are admittedly clear and coherent at the level of principle, and not necessarily contrary to the nature of sovereignty as it has been articulated in modern theory. In practice, however, their realization has always been subject to uncertainty and resistance. The formal rationale of order is in basic tension with the actual functioning of the international system, where sovereignty and autonomy in decision-making are highly prized by States. Enforcement power in international criminal law remains in State hands and subject to extra-legal calculations, creating a deep divide between the formal rationale of international criminal law and its effective realization. This tension has characterized the development of international criminal law from its origins to the present day (see pp. 63–6 above/below) and there is no reason to expect that it will not continue to characterize it after the entry into force of the Rome Statute (see pp. 151–62 above/below).

(p.44) (b) Possible rationales for the core crimes

If the core crimes of international criminal law are seen as a restricted set of prohibitions limiting the legitimate exercise of sovereignty, and whose establishment of direct international responsibility for individuals is justified by the fundamental international interests implicated by the relevant norms, then the question arises: what specifically are those international interests? The answer is largely unclear, at least at present, although increased attention to international criminal law may in future drive efforts to characterize such interests more clearly.

The most frequently cited interests underlying international criminal law are ‘international peace and security’ the collective conscience of humankind’, and ‘State action or policy’. The first two articulate the interest of the international community in a stable and principled world order, and thus at the end of World War II served to justify what had been seen, at the end of World War I, as an illegitimate intrusion on sovereignty. At the same time, they elude easy and perhaps any definition. In the post-War international system, and more explicitly since the end of the Cold War, these interests have been asserted by some as not incompatible with, but as conditions of State sovereignty. ‘State action or policy’ has, at most, a supporting role for the other two.

‘International peace and security’ is perhaps the primary rationale of international criminal law. The early development of the ‘core crimes’ in the aftermath of the Second World War was part of the general elaboration of new international legal structures to preserve international security and prevent upheavals capable of unleashing the horrors of modern warfare.75 The stability of the international order—‘international peace and security’ as it is phrased in the UN Charter—is the most fundamental interest of the post-War international system.76 It underlies the Charter, including its provisions for sanctions, peaceful settlement, and a role for regional alliances, in essence restricting previously existing sovereign prerogatives in the name of geopolit (p.45) ical stability.77 In singling out State agents for international responsibility, it was hoped, in the immediate aftermath of Nuremberg, that international criminal law would provide an incentive for the high-ranking to refrain from devising and executing policies promoting atrocities or aggressive war, and for the low-ranking to refuse to obey orders to carry out such policies. It would thereby contribute to preventing violent conflict between and atrocities by States.

A second justifying rationale, the ‘conscience of humanity’, is a concept that can be linked to the Martens’ clause78 with its reference to the ‘laws of humanity’, a broad term that in effect encompassed what have since been distinguished as crimes against peace, war crimes and crimes against humanity.79 While originally linked to the ‘peace and security’ rationale, (p.46) ‘collective conscience’ has since adopted greater conceptual autonomy.80 This separation, and the more normative (rather than functional) character of the ‘collective conscience’ rationale, allows it to evolve with the values of the international community.

Turning to the individual crimes, considerations related to peace and security are most apparent with the crime of aggression, where intentionally launching an aggressive armed conflict forms the gravamen of the offence itself, reflecting its purpose of contributing to the prevention of such conflicts. In affirming the elevation of aggressive war from an unlawful act of State to a crime of individuals, the Nuremberg Tribunal declared: ‘War is essentially an evil thing. Its consequences are not confined to the belligerent states alone, but affect the whole world. To initiate a war of aggression, therefore, is not only an international crime; it is the supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of the whole.’81

Despite the reference to its being ‘the supreme international crime’, the status of crimes against peace has nevertheless been contested by some on the basis that it remains a victim of the ‘enforcement crisis’ that until recently afflicted all international crimes.82 It was nevertheless included within the (p.47) jurisdiction of the ICC in the negotiation of the Rome Statute, although it remains to be defined and the preconditions to the Court's jurisdiction established before it can become an active part of the ICC's mandate.83 While this process is likely to revive the crime of aggression as an active part of international criminal law, the conditions imposed by the Rome Statute make it likely that its evolution will be slow.84 Moreover, the very process of negotiation towards a definition reflects how political is the question of what constitutes a culpable breach of international peace and security, and above all of where the authority to decide this should lie.85

(p.48) War crimes, like the crime of aggression, contain armed conflict as an intrinsic threshold element of the offence. This is particularly apparent in the case of grave breaches of the 1949 Geneva Conventions, which relate to the persons protected by those Conventions, and whose protected status is predicated on the existence of an international armed conflict.86 More importantly, however, war crimes combine the normative, ‘collective conscience’ impetus with the concern about peace and security by punishing acts which deserve condemnation in themselves, and which by exceeding the bounds of conduct acceptable in armed conflict stand to escalate such conflict (by inviting reprisals etc.) and to perpetuate such crimes. The prohibition of war crimes nonetheless aims primarily to ameliorate rather than to prevent armed conflict, placing these crimes under the rubric of the ‘collective conscience of mankind’, which aims to affirm principles and enforce minimum standards of conduct within the international community. The inclusion of crimes committed in purely internal armed conflict among this category of international crimes underscores this normative impetus.87

Crimes against humanity, which include the conduct of a government against its own citizens, were limited at Nuremberg by a required connection to other crimes under the Charter and were thus related to international conflict as well. The connection made in the Nuremberg Charter Article 6(c), requiring that the acts charged as crimes against humanity be performed ‘in execution of or in connection with any crime within the jurisdiction of the Tribunal’, was apparently inserted to temper the extent of what the authors of the Charter must have known to be a major improvisation in international law. Despite this, as Orentlicher has put it: (p.49)

To the extent that they reached Nazi offenses against German nationals, the Nuremberg prosecutions represented a radical innovation in international law. With few and limited exceptions, international law had not previously addressed a state's treatment of its own citizens, much less imposed criminal sanctions for such conduct. The Nuremberg prosecutions thus broadened the scope of international law in general, and of international criminal law in particular.88

This required ‘nexus’ to armed conflict no longer applies to crimes against humanity,89 and has never applied to genocide,90 giving these two the potential to apply to purely internal matters in the absence even of an internal armed conflict. With this change, the rationale behind these crimes has attenuated its connection to peace and security, affirming that individual responsibility under international law may justifiably rest not on the stability of the international order alone, but on the power of such acts to ‘shock the conscience of humanity’. Resting in this way on the protection of fundamental rights and the promotion of common values, which are subject to evolution, crimes against humanity may be expected to develop over time. This has already occurred with the inclusion of apartheid and enumerated crimes of sexual violence within the Rome Statute and previous instruments, and could happen in future with other crimes.91

(p.50) Despite their primary reliance on the ‘collective conscience’ rationale to justify the international responsibility they impose, it should be noted that atrocities of a magnitude capable of being labelled crimes against humanity, genocide, or violations of the laws and customs applicable in non-international armed conflict have historical and causal links to international conflicts, having the potential in many cases to destabilize both national society and international peace. Conversely, the crime of aggression has clearly been felt to ‘shock the conscience of humanity’. These two major rationales therefore overlap in each of the core crimes.

The third potential rationale requires more caution. ‘State action or policy’ has been put forward as a fundamental rationale of international criminal law, in essence underlying the above two considerations. One major commentator writes:

What makes the specific crimes contained in Article 6(c) [of the Nuremberg Charter] and subsequent formulations part of the international crime category of ‘crimes against humanity’ is their nexus to one overarching international or jurisdictional element. This element is therefore the indispensable link that warrants inclusion in the international criminal category of that which would otherwise remain within the category of national crimes. And that international element is state action or policy’.92

Bassiouni also implies that, at least in the case of crimes against humanity, ‘State action or policy’ is a precondition to the large scale victimization that can result in threats to peace and security and shock the conscience of humanity.93 Without such a rationale, he argues, international criminal law will be less clearly defined and lose the support of States, undermining its legitimacy.94 Moreover, the role Bassiouni assigns to ‘State action or policy’ is not restricted to crimes against humanity, but extends to all crimes which can be characterized as being jus cogens (thus, to all the core crimes):

certain crimes affect the interests of the world community as a whole because they threaten the peace and security of human kind and because they shock the conscience of humanity. If both elements are present in a given crime, it can be concluded that the crime is part of jus cogens. The argument is less compelling, though still strong enough, if only one of these two elements is present. Implicit in the first, and sometimes the second element, is the fact that the conduct in question is the product of a state-action or a state-favoring policy. Thus, essentially, a jus cogens crime is characterized explicitly or implicitly by state policy or conduct, irrespective of whether it is manifested by commission or omission. This is one of the distinctions between jus cogens and other international crimes [as broadly conceived], which are not the product of a state-action or a state-favoring policy.95

(p.51) Bassiouni is right to assert the importance of considering State action or policy, and to emphasize its historical importance in the development of international criminal law. Inter-State aggression will no doubt always have an element of State policy, and crimes against humanity, as defined most recently by the Rome Statute, are defined in part by such an element.96 Nonetheless, this factor should be ascribed a more flexible position than Bassiouni gives to it. While State action or policy may be decisive in causing an abuse to threaten international peace and security, and the abuse of power and authority by State agents may make conduct rise to a level that is deemed to shock the conscience of humanity, this will not always necessarily be the case. For example, war crimes are frequently committed with no policy element,97 and genocide could conceivably occur without such a policy, even if such an occurrence is rare.98 The fundamental international interest in peace and security and the ability of international law to respond appropriately to affronts to the public conscience are important enough that the possibility of flexible future development should be not closed off in the name of a conceptually neat but restrictive doctrinal arrangement. Particularly in light of the growing prominence of non-State actors. State action or policy should be seen as relevant, but should not always be read into the crimes themselves or their underlying rationales as Bassiouni suggests.

Notes:

(1) See Chapter 3, nn. 1–3, below

(2) See the discussion in Andrew Ashworth, Principles of Criminal Law (Oxford: Clarendon, 1991) at 59–62, and in John Calvin Jeffries, ‘Legality, Vagueness and the Construction of Penal Statutes’ (1985) 71 Virg. L. Rev. 189, at 205–10.

(3) See BassiouniCrimes Against Humanity under International Law (Dordrecht: Martinus Nijhoff, 1992) at 98–9, for a description of retroactive and open-ended laws under National Socialism, and ibid, at 91–5 for the roots of the principle of legality in the struggles of the Enlightenment to limit the abuses of absolute monarchs.

(4) This constraint is constitutionally enforced in some jurisdictions, such as Canada, where judges are empowered to strike down legislation for vagueness and retroactivity: Peter W. Hogg, Constitutional Law of Canada (3d ed.) (Scarborough, Ont.: Carswell, 1992) 1045–6.

(5) See Ashworth (1991), n. 2 above, at 61 and Edward M. Wise, ‘General Rules of Criminal Law’, in M. Cherif Bassiouni, ed., The International Criminal Court: Observations and issues before the 1997–98 Preparatory Committee; and administrative and financial implications, (1997) 13 Nouvelles Etudes Penales 267, at 272. The line between the legislative’ and the ‘judicial’ is a matter of judgement and is never fixed however: Jeffries (1985),n. 2 above, at 189 and 202–5.

(6) ‘Although there may have been ancient antecedents, the categorical insistence on advance legislative crime definition is clearly a modern phenomenon. In fact, the legality ideal is an explicit and self-conscious rejection of the historic methodology of the common law’:Jeffries(1985), n. 2 above, at 190.

(7) See generally Bassiouni(1992), n. 3 above, at 87–146.

(8) Ibid, at 91–146, and esp. 141–4. Universal Declaration of Human Rights, G.A. Res. 217A (III) (10 December 1948), U.N. Doc. A/810 at 71; International Covenant of Civil and Political Rights, 16 December 1966, 999 U.N.T.S. 171, both reprinted in Brownlie, ed., Basic Documents in International Law (4th ed.) (Oxford: Clarendon, 1995) 255, 276.

(9) The first sentence of Art. 15(1) reads: ‘No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed (emphasis added)’. But for using the word ‘penal’ instead of‘criminal’, Art. 11(2) of the UDHR is the same.

(10) Art. 15(2) reads: ‘Nothing in this Article shall prejudice the trial and punishment of any person for any act or omission which, at the time it was committed, was criminal according to the general principles of law recognized by the community of nations’.

(11) See Otto Triffterer, ‘Efforts to Recognize and Codify International Crimes (General Report, Part I)’, in Les Crimes Internationaux et le Droit Penal Interne: Actes du Coiioque Preparatoire term ci Hammamet, Tunisie, 6–8 Juin 1987 (1989) 60 Revue Internationale de Droit Penal 31, at 60 for statements exhibiting the belief that national prohibition is required even with respect to ‘core’ international crimes in order for nullum crimen to be satisfied.

(12) On the application of the international principle of nullum crimen to any ‘treaty crimes’ incorporated into the Rome Statute in future, see the discussion of Art. 22 at pp. 34–9 below.

(13) It has also been argued that international law allows criminalization of individual conduct by analogy in broader circumstances than does national law: Bassiouni (1992), n. 3 above, at 112. This may affect the application of nullum crimen as a principle of international law outside the scope of the Rome Statute.

(14) GA Res. 177(11) (21 November 1947). U.N. Doc. A/519 (1948), G. A.O. R., 2nd Sess., at 11. The Code was originally titled a code of offences: the change from ‘offences’ to ‘crimes’ was made by OA Res. 42/151 (7 December 1987), U.N. Doc. A/42/49 (1988), G.A.O.R. 42nd Sess., Supp. No. 49, at 292.

(15) See Part II Introduction, n. 4, below.

(4) Report of the international Law Commission Covering its Second Session, (1950) 5 U.N. G.A.O.R. Supp. No.12, U.N. Doc. A/1316 [‘1950 ILC Report’], ai 11.

(16) Report of the International Law Commission covering the Work of its Sixth Session, 3 June 28 July 1954, U.N. Doc. A/2693, G.A.O.R., 9th Sess., Supp. No. 9 (1954) 9.

(17) The General Assembly asked the Commission to put off work on the draft Code and on the ICC until a Special Committee established to address the definition of aggression had submitted its report: GA Res. 897 (IX) (4 December 1954) (Draft Code) and GA Res. 898 (IX) (4 December 1954) (ICC), both in U.N. Doc. A/2890, G.A.O.R., 9th Sess., Supp. No. 21 (1954), at 50.A definition of aggression based on the Special Committee's recommendations not adopted until 1974: GA Res. 3314 (XXIX) (14 December 1974), U.N. Doc. A/9631 (1974), G.A.O.R. 29th Sess., Supp. No. 31, Vol. I. at 142.

(18) GA Res. 36/106(10 December 1981), U.N. Doc. 36/51 (1982), G.A.O.R., 36th Sess., Supp. No. 51, at 239.

(19) 1996 ILC Report.

(20) Ibid, at 13–14.

(21) The ILC's adoption in 1996 of a new version of the Draft Code of Crimes against the Peace and Security of Mankind made the question of the relationship between the ICC and the Draft Code more pressing. Rayfuse, after noting that the General Assembly put off consideration of the Draft Code until after 1998, concluded that following establishment of the ICC ‘the Code will have no relevance in the international arena’: . ‘The Draft Code of Crimes against the Peace and Security of Mankind: Eating disorders at the International Law Commission (1997) 8 Crim L. Forum 43, at 83. 85.

(22) That nullum crimen requires the definition of general principles in addition to those of crimes is not undisputed. Wise concedes that it may not, but arrives at the same effect by speaking of more general ‘requirements of precision and certainty expected in criminal proceedings’: Wise, n. 2 above, at 271. Criminal prohibitions under international law have often been declared sufficiently precise and their incorporation by mere reference into national law satisfactory for purposes of the nullum crimen principle: see Jordan J. Paust, ‘Nullum crimen and related claims’, in Bassiouni (1997),n. 5 above, 275, esp. at 275–6 and 282–8. Art. 22(3) makes clear that the nullum crimen principle within the Statute is not intended to affect the characterization of conduct as criminal under international law outside of the Statute.

(23) 1996 ILC Report, n. 19 above, paras. 30–46, at 9–13. For the ILC process to 1996 in this context, see pp. 28–9, and Wise,n. 5 above. For views from a wide range of countries on codification efforts as they stood at the time, see generally Triffterer (1989), n. 11 above.

(24) See Morris and ScharfThe International Criminal Tribunal for Rwanda (2 vols.) (Irvington-on-Hudson, NY: Transnational, 1998) at 39–42 and esp. 124–32, demonstrating that the ICTY Statute, being based on acknowledged customary law, satisfied the nullum crimen principle at the time of its establishment, and that the ICTR Statute, although initially less certain, soon did no more than reflect such custom.

(25) International Law Commission, Draft Statute for an International Criminal Court [‘ILC Draft Statute’], in Report of the International Law Commission on its Forty-Sixth Session, U.N. G.A.O.R., 49th Sess., Supp. No. 10, U.N. Doc. A/49/10 (1994) 43 [‘1994 ILC Report’], at 112; reprinted in Bassiouni, ed., The Statute of the ICC A documentary history (Ardsley, NY: Transnational, 1998) 657, at 667 (omitting the ILC's commentary to the Draft Statute).

(26) Commentary to Art. 39, ILC Draft, paras. 2 & 4, n. 25 above at 113–14.

(27) That international law does meet millum crimen standards has frequently been asserted, and incorporation by reference of definitions under international law (as proposed in the ILC Draft) has been allowed under both national and international law: see Paust,n. 22 above, at 275–6 and 282–8.

(28) For the previous Draft to emerge from the ILC, see ‘Report of the Working Group on the Draft Statute for an International Criminal Court Annex to Report of the International Law Commission on the Dork of its Forty-Fifth Session. U.N. Doc. A/48/10, 48 G.A.O.R, Supp. No. 10 (1993).

(29) 1994 ILC Report, para. 60 at 36 and Commentary to ILC Draft, paras. 5–6 at 66–7 and para. 1 at 71, n. 25 above.

(30) The ILC continued: ‘With respect to certain of these crimes, this is the purpose of the Draft Code of Crimes against the Peace and Security of Mankind, although the Draft Code is not intended to deal with all crimes under general international law: Commentary to Art. 20, ILC Draft, para. 4, n. 25 above at 712.

(31) ; see Part II Introduction, n. 8 below and pp. 28–30 above.

(32) Report of the Ad Hoc Committee on the Establishment of an International Criminal Court, U.N. G.A.O.R., 50th Sess., Supp. No. 22, U.N. Doc. A/50/22 (1995), paras. 52 & 57 at 10 & 12; reprinted in Bassiouni (1998), n. 25 above, 667 at 677 and 678.

(33) Report of the Preparatory Committee on the Establishment of an International Criminal Court, U.N. G.A.O.R., 51st Sess., Supp. No. 22, U.N. Doc. A/51/22 (1996) (2 vols.) paras. 52, 180, and 185 at 16, 41, and 42 (vol. I), reprinted in Bassiouni(1998), n. 25 above, 363 at 383–4 and 408–9. For contemporary commentary, see Wise,n. 5 above. The extent to which the principle of nullum crimen requires such a codification of the general part is not free from uncertainty.

(34) As remarked above (pp. 29–30) it may well be that the decision to make the ICC Statute a de facto criminal code reduced the impetus to complete and adopt the Draft Code.

(35) ‘Article A’ of Part 3bis of the 1996 Preparatory Committee Report was compiled by an informal group and did not represent a text agreed by delegates: ibid., vol. 2 at 79; Bassiouni(1998), n. 25 above, at 500.

(36) The third proposal was the precursor of current Art. 11 (Jurisdiction ratione temporis).

(37) Decisions taken by the Preparatory Committee at its Session held from 11 to 21 February 1997. U.N. Doc. A/AC.249/1997/L.5 (1997). Art. A (Nullum crimen) and Art. Abis (Jurisdiction ratione temporis, as it was to become known); Bassiouni(1998), n. 25 above, 343 at 355. Article Abis included the proposal to apply the more lenient version in the event of amendment.

(38) Report of the Inter-Sessional Meeting from 19 to 30 January 1998 in Zutphen, the Netherlands, U.N. Doc. A/AC.249/1998/L. 13 (1998) Art. 15[A] at 51; reprinted in Bassiouni(1998), n. 25 above, 143 at 173.

(39) Draft Statute for the International Criminal Court, Part 1 of the Addendum to the Report of the Preparatory Committee on the Establishment of an International Criminal Court, U.N. Doc. A/Conf. 183/2/Add. 1 (1998) [prepCom Draft Statute’], Art. 21 at 57; reprinted in Bassiouni (1998),n. 25 above, 119 at 140.

(40) Chairman's suggestions for Arts. 21. 26 and 28. U.N. Doc. A/Conf. 183/C.1/WG.GP/L.1 (15 June 1998).

(41) This stipulation was dropped, presumably for superfluity, from subsequent versions.

(42) Art. 22 in its final form applies to ‘crimes’ within ICC jurisdiction and not to ‘offences against the administration of justice’ (lying under oath etc.) under Art. 70. It is likely that the Court will apply nullum crimen as a principle of general international law to the Art. 70 offence through Art. 21 (applicable law).

(43) Report of the Working Group on General Principles of Criminal Law, U.N. Doc. A/Conf. 183/C. 1/WGGP/L.4 (18 June 1998) Art. 21 at 2.

(44) Draft Report of the Drafting Committee to the Committee of the Whole, U.N. Doc. A/Conf. 183/C. 1/L.65/Rev.l (14 July 1998) Art. 21 at 1

(45) Draft Statute for the International Criminal Court, U.N. Doc. A/Conf.l83/C.1/L.76/Add.3 (16 July 1998) at 1 [‘Bureau text’].

(46) The rule is said to be applied to strengthen decisions reached on other grounds: Jeffries (1985), n. 2 above, at 198–200. Jeffries adds (at 219): The rule [of strict construction] is still invoked, but so variously and unpredictably, and it is so often conflated with inconsistencies, that it is hard to discern widespread adherence to any general policy of statutory construction’. See also Ashworth (1991),n. 2 above, at 67–71

(47) Ashworth(1991), n. 2 above, at 68–70.

(48) That a judicial ability to find vagueness or indeterminacy carries with it substantial power derives partly from the fact that ‘indeterminacy’ is itself an indeterminate concept: Jeffries (1985),n. 2 above, at 196.

(49) International criminal law as it is now … requires the existence of a legal prohibition arising under conventional or customary international law, which is deemed to have primacy over national law, and which defines a certain conduct as criminal, punishable or prosecutable, or violative of international law. This minimum standard of legality permits the resort to the rule ejusdem generis [permitting analogy] with respect to analogous conduct, and also permits the application of penalties by analogy …’: Bassiouni (1992), n. 3 above, at 112.

(50) the “principles of legality” in international criminal law … are necessarily sui generis because they must balance between the preservation of justice and fairness for the accused and the preservation of world order, taking into account the nature of international law, the absence of international legislative policies and standards, the ad hoc processes of technical drafting and the basic assumption that international criminal law norms will be embodied into the national criminal law of the various states’: ibid, at 112. Outside the ICC regime, the condition described cannot be expected to change quickly or radically.

(51) M. Cherif Bassiouni and Peter Manikas, The Law of the International Criminal Tribunal for the Former Yugoslavia (Irvington-On-Hudson, NY: Transnational, 1996), at 269–70 (with reference to the ICTY).

(52) See the commentary to Art. 39(b), ILC Draft, n. 25 above, paras. 3–4 at 113–14.

(53) While international criminal law, in a broad sense, is in large measure derived from conventions, the majority of these ‘do not meet the test of legality under contemporary standards of western European legal systems owing, inter alia, to the fact that it was foreseen that the prohibitions called for would be promulgated into national law in accordance with the principles of legality applicable under that law: Bassiouni (1992), n. 3 above, at 111.

(54) The distinction between ‘international crimes sensu stricto entailing individual responsibility directly under international law (essentially the ‘core’ or ‘Nuremberg’ crimes) and ‘international crimes sensu largo’ not doing so (crimes under ‘suppression conventions’) was generally accepted at the meetings of the Association Internationale de Droit Penal reported in Triffterer(1989),n. 11 above, at 40, 42, 52–3, and 69–70.

(55) 1994 ILC Report, n. 25 above, para. 8 at 68. The ILC gives the opinion that cases where a treaty definition of a crime is insufficient to make the treaty applicable to individuals, thereby giving rise only to State responsibility, are ‘likely to be rare, and may be hypothetical …’: ibid, para. 4 at 113–14. This appears to be overstated: see n. 53 above. The ILC acknowledged that it proposed to include in its Draft Statute ‘…treaties which explicitly envisage that the crimes to which the treaty refers are none the less crimes under national law’:n. 25 above, para. 3 at 104.

(56) ibid., para. 3 at 113.

(57) n. 25 above, para. 3 at 113.

(58) Theodor Meron ‘Is International Law Moving Towards Criminalization?’ (1998) 9 E.J.I.L. 18 [‘1998a’] at 24.

(59) Meron,ibid., in effect acknowledges this by stating that although there is a move in the direction of criminalization’, ‘the legal criteria for judging criminality in this area are still far from clear, as shown by the lack of clarity as to whether violations of environmental treaties, the use of land mines, or the use of blinding laser weapons, for example, involve individual criminal responsibility.’ He does not attempt to clarify these criteria.

(60) This is the central difficulty with the Bassiouni list (see Chapter I, n. 43 above) which provides no means of distinguishing prohibitions containing one or more of the relevant elements from each other.

(61) See the above discussion, pp. 30–9. An optional definition of ‘crimes of terrorism’ was included in the final Draft Statute produced by the Preparatory Committee: PrepCom Draft Statute, Art. 5, at 33; reprinted in Bassiouni(1998), n. 25 above, at 129. At the Rome Diplomatic Conference, a definition of ‘act of terrorism’, to be included within the definition of crimes against humanity, was submitted, then later modified: Proposal Submitted by Algeria, India, Sri Lanka and Turkey, U.N. Doc. A/CONF. 183/C.l/L.27 (29 June 1998); Proposal Submitted by India, Sri Lanka and Turkey, U.N. Doc. A/CONF. 183/C.l/L.27/Rev. 1 (6 July 1998). As it became apparent that the proposal did not have the needed support, a ‘place-holder’ provision was proposed that would require the Preparatory Commission to elaborate definitions of these crimes: Proposal Submitted by Barbados, Dominica, India, Jamaica, Sri Lanka, Trinidad and Tobago and Turkey, U.N. Doc. A/CONF.183/C. l/L.71 (14 July 1998).

(62) Final Act of the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court. U.N. Doc. A/Conf.183/10 (17 July 1998) [Final Act], Resolution E.

(63) For example, Convention for the Suppression of Unlawful Seizure of Aircraft, 16 December 1970, 860 U.N.T.S. 105 [1970 Hague Convention]; 1971 Montreal Convention, 23 September 1971, 974 U.N.T.S. 177; International Convention Against the Taking of Hostages, 17 December 1979, Annex to GA Res. 34/146. U.N. Doc. A/34/46, G.A.O.R., 34th Sess., Supp. No. 46 at 245, 18 I.L.M. 1456 [1979 Hostages Convention]; European Convention on the Suppression of Terrorism, 27 January 1977, 1137 U.N.T.S. 93, 90 E.T.S. 3 [European Convention]; International Convention for the Suppression of Terrorist Bombings, adopted by G.A. Res. 52/164 (15 December 1997) [Terrorist Bombing Convention]. For detail on the status of these instruments, see Measures to Eliminate International Terrorism: Report of the Secretary-General, U.N. Doc. A/56/160 (3 July 2001).

(64) The General Assembly's Sixth (Legal) Committee has come very close to adopting a final draft ‘comprehensive’ convention against terrorism, only to have its efforts founder on differences concerning the crimes of ‘national liberation movements’ and State authorities; Report of the Working Group on Measures to Eliminate International Terrorism, U.N. Doc. A/C.6/56/L.9 (29 October 2001), paras. 11–14 and Annex 1. For efforts to define this crime in the context of the United Nations Sub-Commission on the Promotion and Protection of Human Rights, see Terrorism and Human Rights: Progress report prepared by Ms Kalliopi K. Koufa, Special Rapporteur, U.N. Doc. E/CN.4/Sub.2/2001/31 (27 June 2001), paras. 24–81.

(65) See International Convention for the Suppression of the Financing of Terrorism, adopted by G.A. Res. 54/109 (9 December 1999), Art. 2(1).

(66) For a short discussion of some of the problems, see Michael Kinsley, ‘Defining Terrorism: It's essential. It's also impossible’ Washington Post (5 October 2001) p. A37.

(67) See Interights, ‘Responding to September 11: The framework of international law’ (October 2001), Part IV; available on-line at http://www.interights.org/about/Sept11PartsI-IV.htm#PARTIV (site last accessed on 21 July 2002).

(68) The authoritative formulation of the concept of jus cogens is in the Vienna Convention on the Law of Treaties, 23 May 1969, 1155 U.N.T.S. 331, Art. 53:

Treaties conflicting with a peremptory norm of general international law (jus cogens)

A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law. For the purposes of the present Convention, a peremptory norm of general international law is a norm accepted and recognized by the international community of Slates as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.

See also Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia (Serbia and Montenegro)), Further requests for the indication of provisional measures, Order of IS September 1993, (1993) I.C.J. Rep. 325, at 440 (in the separate Opinion of Judge ad hoc Lauterpacht, that ‘the prohibition of genocide has long been regarded as one of the few undoubted examples of jus cogens); Bassiouni, Crimes Against Humanity in International Criminal Law (2d ed.) (The Hague: Kluwer, 1999) [‘1999a’] at 210–17 (crimes against humanity); Dinstein, War, Aggression, and Self-Defence (Cambridge: Grotius, 1988) at 98–103 (jus cogens nature of prohibition of inter-State use of force underlying the crime of aggression).

(69) Obligations erga omnes are ‘the obligations of a State towards the international community as a whole’, which ‘[i]n view of the importance of the rights involved, all States can be held to have a legal interest1 in protecting; as opposed to those obligations owing to a particular State or group of States: The Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain) (Second phase) Judgment (5 February 1970), (1970) I.C.J. Rep. 4, at 32. The Court, ibid, at 32, goes on: ‘Such obligations derive, for example, in contemporary international law, from the outlawing of acts of aggression, and of genocide, as also from the principles and rules concerning the basic rights of the human person, including protection from slavery and racial discrimination.’ Bassiouni (1999a), n. 68 above, at 211, considers jus cogens norms and obligations erga omnes to be ‘two sides of the same coin’, the first indicating a norm's place within the hierarchy of international law and the second characterizing the results that flow from this. See also Ian Brownlie, Principles of Public International Law, (5th ed.) (Oxford: Clarendon, 1998) at 514–17; SungaIndividual Responsibility in International Law for Serious Violations of Human Rights (Dordrecht: Martinus Nijhoff, 1992) at 129–132 (that all crimes under international law entail violations of obligations erga omnes, but that not all violations of obligations erga omnes comprise crimes under international law); Rein Müllerson, Ordering Anarchy: International taw and international society (The Hague: Martinus Nijhoff, 2000) at 155–9; and Giorgio Gaya, ‘Obligations Erga Omnes, International Crimes and Jus Cogens: A tentative analysis of three related concepts’ in Weiler et al., International Crimes of State: A critical analysis of the ILC's Draft Article 19 on State Responsibility (New York: Walter de Gruyter, 1989) 151.

(70) See Chapter VI, nn. 26–8 and and related text below.

(71) Thomas M. Franck, Fairness in the International Legal and Institutional System (The Hague: Academy for International Law, 1993) at 57–61: Franck borrows the term associative1 obligations from Dworkin: Ronald Dworkin, Law's Empire (Cambridge, MA: Belknap Press, 1986) at 195–216. On entering the international system, successor States also inherit rights and obligations vested by customary law in their predecessor States: Sir Robert Jennings and Sir Arthur Watts, eds., Oppenheim's International Law (9th ed.) (London: Longman, 1996) at 214.

(72) Nigel S. Rodley, ‘Impunity and Human Rights’ in Christopher C. Joyner, ed., Reining in Impunity for International Crimes and Serious Violations of Fundamental Human Rights: Proceedings of the Siracusa Conference, 17–21 September 1998 (1998) 14 Nouvelles Etudes Penales71 at 73–4.

(73) Here it should be noted that both obligations ergo omnes and jus cogens norms rely upon the concept of ‘the international community as a whole’, the first being obligations owed to that community and the second being norms authorized by that community: Sunga (1992), n. 69 above at 131–2.

(74) J. Samuel Barkin, ‘The Evolution of the Constitution of Sovereignty and the Emergence of Human Rights Norms’ (1998) 27 Millenium 229, at 232; David Beetham, The Legitimation of Power (London: Macmillan, 1991), at 122; Abram Chayes and Antonia H. Chayes, The New Sovereignty: Compliance with international regulatory agreements (Cambridge, MA: Harvard U.P., 1995), esp. 26–8; M.R. Fowler and J.M. Bunck, Law, Power and the Sovereign State: The evolution and the application of the concept of sovereignty (University Park, PA; Pennsylvania State University Press, 1995); Robert H. Jackson, Quasi-States: Sovereignty, international relations and the Third World (Cambridge: Cambridge U.P., 1993); Peter Malanczuk, Akehurst's Modern Introduction to International Law, (7th ed.) (London: Routledge, 1997), at 17–18;Müllerson (2000),n. 69 above, at 118–34, 166; James N. Rosenau, Turbulence in International Polities: A theory of change and continuity (Princeton: Princeton U.P., 1990), at 435–40; Janice E. Thomson, ‘State Sovereignty in International Relations: Bridging the gap between theory and empirical research’ (1995) 39 Int'l Studies Q. 213, at 218–20.

(75) Antonio Cassese, International Law in a Divided World (Oxford: Clarendon, 1986), at 64–6.

(76) Bruno Simma, ed., The Charter of the United Nations: A commentary (Oxford: Oxford U.P., 1995), at 50–2, 74–5, 97–128; Charter of the United Nations (26 June 1945), 1 U.N.T.S. xvi, reprinted in Ian Brownlie, ed., Basic Documents in International Law (4th ed.) (Oxford: Clarendon, 1995), at 1. The first purpose of the U.N., set down in Art. 1(1), is:

To maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace.

This purpose is reinforced by the pledge undertaken by Member States through Art. 2(4):

All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the Purposes of the United Nations.

(77) To meet the purpose of U.N. Charter Art. 1(1), and against the backdrop of this wide-ranging renunciation of the use of force by individual States, Member States confer on the Council ‘primary responsibility for the maintenance of international peace and security1 (Art. 24(1)). The delegation of authority is a wide-ranging one, Members acknowledging that ‘in carrying out its duties … the Security Council acts on their behalf (Art. 24(1)) and agreeing ‘to accept and carry out the decisions of the Security Council in accordance with the present Charter 1 (Art. 25). The procedures and standards applicable to the Council's actions and decisions are laid out primarily in Chapter VI (‘Pacific settlement of disputes’) and Chapter VII (‘Actions with respect to threats to the peace, breaches of the peace, and acts of aggression’) of the Charter.

(78) This clause, intended primarily to indicate that much of humanitarian law continued to exist as unwritten custom, was first included in the Preamble to the Convention with Respect to the Laws and Customs of War on Land, 29 July 1899, 1 Bevans 247 [1899 Hague Convention II]:

Until a more complete code of the laws of war is issued, the high contracting Parties think it right to declare that in cases not included in the Regulations adopted by them, populations and belligerents remain under the protection and empire of the principles of the international law, as they result from the usages established between civilized nations, from the laws of humanity, and the requirements of the public conscience. [Preamble, para. 9]

Similar formulations appeared in the Convention Respecting the Laws and Customs of War on Land. 18 October 1907. 1 Bevans 631 [1907 Hague Convention IV] (Preamble, para. 8); the Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (12 August 1949). 75 U.N.T.S. 31 [Geneva Convention I], Art. 63; 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 U.N.T.S. 85 [Geneva Convention II], Art. 62; Geneva Convention Relative to the Treatment of Prisoners of War (12 August 1949), 75 U.N.T.S. 135 [Geneva Convention III], Art. 142; and Geneva Convention Relative to the Protection of Civilian Persons in Time of War (12 August 1949), 75 U.N.T.S. 287 [Geneva Convention IV], Art. 158; the 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 U.N.T.S. 3 [1977 Additional Protocol I] (Art. 1); the Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (12 December 1977), 1125 U.N.T.S. 609 [1977 Additional Protocol II] (Preamble, para. 4); and the Convention on Prohibitions and Restrictions on the Use of Certain Conventional Weapons Which May Be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects, 10 October 1980, 1342 U.N.T.S. 137, 19 I.L.M. 127 [1980 Conventional Weapons Convention] (Preamble, para. 5). See Helmut Strebel, ‘Martens’ ‘Clause’, in Rudolf Bernhardt, ed., Encyclopedia of Public International Law, (2d ed.) (Amsterdam: Elsevier, 1997) (vol. 3) 326.

(79) M. Cherif Bassiouni, Crimes Against Humanity in International Criminal Law, (2d ed.) (The Hague; Kluwer, 1999) [Bassiouni (1999a)1], at 60ff. The ‘collective conscience’ concept also appears in the Preamble to the Rome Statute (para. 2).

(80) The separation of the two rationales is apparent not only in the loss of the nexus to armed conflict in the definition of crimes against humanity (text below), but also in the increasing reliance on this rationale by the Security Council, although the Council must, to evoke its Chapter VII powers, maintain a link between any ‘conscience of humanity’ considerations justifying Council action and the ‘international peace and security’ limit imposed by the Charter on the Council's mandate. Formulations that might be placed under the rubric of ‘shocking the conscience of humanity’ have lent support to Security Council jurisdiction where a secessionist regime denies the rights to freedom and independence to the majority of its population (S.C. Res. 232, 16 December 1966, para. 4 (Southern Rhodesia)); where a State commits massive violence constituting the international crime of apartheid against its population (S.C. Res. 418, 4 November 1977, preamble (South Africa)) or severely represses that population (S.C. Res. 688, 5 April 1991, para. I (Iraq)); where civil conflict brings with it heavy loss of life and material damage (S.C. Res. 713, 25 September 1991, Preamble (Yugoslavia)); serious or widespread violations of international humanitarian law (S.C. Res. 808. 22 February 1993 (Former Yugoslavia)); or simply a ‘human tragedy’ of enormous magnitude (S.C. Res. 794, 3 December 1992, Preamble (Somalia)): see Thomas M. Franek, Fairness in the International Legal and Institutional System (General Course on Public International Law) (Reeueil des cours, vol. 240 [1993-III]) (The Hague: Academy for International Law, 1993), at 202–15. The Security Council has declared that ‘the policy of apartheid is a crime against the conscience and dignity of mankind’: S.C. Res. 392(19 June 1976), para. 3.

(81) IMT Judgment, above,n. 23, at 186, quoted in Dinstein, above,n. 68, at 120.

(82) A definition of ‘crimes against peace’ was included in Art. 6(a) of the Nuremberg Charter, and repeated (with some variations) in Art. II(I)(a) of Control Council Law No. 10 and in Art. 5(a) of the Charter of the Tokyo Tribunal: Nuremberg Charter, Chapter I, n. 33 above; Allied Control Council Law No. 10, Punishment of persons guilty of War crimes, crimes against peace and against humanity, (20 December 1945) 3 Official Gazette of the Control Council for Germany (31 January 1946). reprinted in Bassiouni (1992), n. 3 above, at 590; Charter of the International Military Tribunal for the Far Fast (19 January 1946), T.I.A.S. 1589, established by the Proclamation by the Supreme Commander for the Allied Powers, Tokyo (19 January 1946), reprinted in Bassiouni (1992), n. 3 above, 604, 606. While the General Assembly adopted a consensus resolution defining the crime in 1974 (GA Res. 3314 (XXIX) (14 December 1974)), n. 17 above, this instrument is non-binding, has not been relied upon by the Security Council, deals with aggression in more than just a criminal sense, and has been the subjected to criticism on various grounds: Yoram Dinstein, War, Aggression and Self-Defence (Cambridge: Grotius, 1988), at 119–26; M. Cherif Bassioiuni and Benjamin B. Ferencz, The Crime against peace’, in M.C. Bassiouni, ed., International Criminal Law (2d ed.) (Ardsley, NY: Transnational, 1999) [‘Bassiouni (1999b)’] (vol. III) 313. For a survey of debates about the crime of aggression and its status under international law, see ibid., at 112–19. Dinstein,ibid, at 116, concludes that although ‘when the London Charter was concluded. Article 6(a) was not really declaratory of pre-existing international law … [I]t is virtually irrefutable that present-day positive international law reflects the Judgment [of the Nuremberg Tribunal].’

(33) Charter of the International Military Tribunal, Annex to the Agreement for the Prosecution and Punishment of Major War Criminals of the European Axis, London (8 August 1945), 82 U.N.T.S. 279, reprinted in (1945) 39 A.J.I.L. (Supp.) 257 and in M. Cherif Bassiouni, Crimes Against Humanity under International Law (Dordrecht: Martinus Nijhoff, 1992), at 579 [‘Nuremberg Charter/Tribunal’]; for formulation and consideration of the Nuremberg Principles by the International Law Commission and the General Assembly respectively, see Part II Introduction, n. 4 and related text below; see also Judgment, Trial of the Major War Criminals before the International Military Tribunal, Nuremberg, 14 November 1945–1 October 1946 (Nuremberg: I.M.T., 1947) (vol. 1) 171, reprinted in (1947) 41 A.J.I.L. 172.

(83) Article 5 of the Statute includes the crime of aggression within the jurisdiction of the Court. However, as the Diplomatic Conference was unable to agree on a definition of the crime in the time available, para. 2 adds that:

The Court shall exercise jurisdiction over the crime of aggression once a provision is adopted in accordance with articles 121 [see n. 84 below] and 123 defining the crime and setting out the conditions under which the Court shall exercise jurisdiction with respect to this crime, Such a provision shall be consistent with the relevant provisions of the Charter of the United Nations.

The Final Act, in Resolution F, para. 7, assigns the Preparatory Commission (‘PrepCom’; Chapter IV, n. 21 and related text below) to:

prepare proposals for a provision on aggression, including the definition and Elements of Crimes of aggression and the conditions under which the International Criminal Court shall exercise its jurisdiction with regard to this crime. The Commission shall submit such proposals to the Assembly of States Parties at a Review Conference, with a view to arriving at an acceptable provision on the crime of aggression for inclusion in this Statute. The provisions relating to the crime of aggression shall enter into force for the States Parties in accordance with the relevant provisions of this Statute.

Art. 123(1) indicates that the first Review Conference will be convened seven years after the entry into force of the Statute.

(84) The applicable amendment procedure is set out in Art. 121(5): ‘Any amendment to articles 5. 6, 7 and 8 of this Statute shall enter into force for those States Parties which have accepted the amendment one year after the deposit of their instruments of ratification or acceptance. In respect of a State Party which has not accepted the amendment, the Court shall not exercise its jurisdiction regarding a crime covered by the amendment when committed by that State Party's nationals or on its territory.’ The restricted jurisdiction provided for in this article (compare the regular jurisdiction of the Court, pp. 76–8 and 80–2 below) opens the possibility that the Court will seldom have jurisdiction over the crime of aggression. The degree of acceptability of any eventual definition will therefore be crucial.

(85) The PrepCom established a Working Group on the Crime of Aggression, which has carried out discussions but made slow progress at several sessions of the PrepCom. Discussions reflected a diversity of views as to the definition of the crime, as well as sharply divided opinions on the appropriate role of the Security Council in relation to the jurisdiction of the ICC: Silvia A. Fernàndez de Gurmendi. ‘The Working Group on Aggression at (he Preparatory Commission for the International Criminal Court’ (2002) 25 Fordham int'l L.J. 589; Discussion paper proposed by the Coordinator, U.N. Doc. PCN1CC71999/WGCA/RT. 1 (9 December 1999) (consolidated text of proposals); Reference document on the crime of aggression, prepared by the Secretariat, U.N. Doc. PCNICC/2000MVGCA/INF/1 (27 June 2000); Proposal submitted by Germany, U.N. Doc. PCNICC/2000/WGCA/DP.4 (13 November 2000) (discussion paper). In essence, the permanent five members of the Security Council insist that a precondition to the Court's exercise of this jurisdiction be a resolution of the Council, acting under Chapter VII of the UN Charter, finding that an act of aggression has occurred; members of the Non-Aligned Movement strongly oppose this: see Herman von Hebel and Darryl Robinson, ‘Crimes Within the Jurisdiction of the Court’ in R.S. Lee, ed., The International Criminal Court: Issues negotiations, results (The Hague: Kluwer, 1999), 79, at 81-5; and Andreas Zimmerman, Commentary on Article 5, in Otto Triffterer, ed., The Rome Statute of the Unemotional Criminal Court: Observers’ notes, article by article (Baden-Baden: Nomos, 1999), 97, at 103–6. The difficulties involved in reaching agreement on this crime have led some commentators to feel it ‘probable that the definition of this crime … will not be agreed upon, at least not in the near future’: Antonio Cassese, ‘The Statute of the International Criminal Court: Some preliminary reflections’ (1999) 10 E.J.I.L. 144, at 147. The most recent and thorough review of efforts to define this crime are in Historical review of developments relating to aggression, U.N. Doc. PCNICC72002/WGCA/L. 1 (24 January 2002) and the Addendum to the same, U.N. Doc. PCNICC/2002/WGCA/L. 1/Add.l (18 January 2002). For a discussion of the definition prior to the current negotiations, see Dinstein,n. 81 above, at 119–35.

(86) Convention I (Arts. 2, 12); Convention II (Arts. 2, 13); Convention III (Arts. 2, 12); Convention IV (Arts. 2, 13).

(87) See Chapter IV n. 28 and Chapter VI n. 24 below.

(88) D. Orentlicher, ‘Settling Accounts: The duty to prosecute human rights violations of a prior regime’ (1991) 100 Yale L.J., 2537, at 2555 (footnotes omitted).

(89) The connection to armed conflict was retained in Art. 5 of the Statute of the International Criminal Tribunal for the Former Yugoslavia: Chapter IV n.10 below. This was done out of an apparent desire to restrict the jurisdiction of the Tribunal, rather than out of a narrow view of the law. As stated by the Appeals Chamber of the ICTY in the Tadic jurisdictional decision:

It is by now a settled rule of customary international law that crimes against humanity do not require a connection to international armed conflict. Indeed … customary international law may not require a connection between crimes against humanity and any conflict at all [Prosecutor v. Dusko Tadic, a.k.a. ‘Dule’, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction (ICTY Case No. IT-94–1) (2 October 1995) (Appeals Chamber) [Tadic jurisdictional decision’], at para. 141].

Neither Art. 3 of the Statute of the Rwanda Tribunal, Chapter IV n. 10 below, nor Art. 7 of the Rome Statute require any ‘nexus’ to armed conflict: see Virginia Morris and Michael P. Scharf, The International Criminal Tribunal for Rwanda (2 vols.) (Irvington-on-Hudson, NY: Transnational, 1998) (vol. I), at 202–5; M.C. Bassiouni, Crimes Against Humanity in International Criminal Law (2d ed.) (The Hague: Kluwer, 1999) [‘Bassiouni (1999a)’] at 193–203; Darryl Robinson, ‘Defining “Crimes Against Humanity” at the Rome Conference’ (1999) 93 A.J.I.L. 43 at 45–6.

(90) William A. Schabas, Genocide in International Law: The crime of crimes (Cambridge: Cambridge U.P., 2000) at 10, 71–2.

(91) The Apartheid Convention declares apartheid to be a crime against humanity: International Convention on the Suppression and Punishment of the Crime of Apartheid, 30 November 1973. 1015 U.N.T.S. 243, Art. 1(1). Apartheid was included in both the 1991 and 1996 Draft Codes as a crime against humanity: 1991 ILC Report, 1996 ILC Report. Crimes of sexual violence could be encompassed by the wording of Art. 6(3) of the Nuremberg Charter by being characterized as ‘other inhumane acts’, but no charges of rape were brought at Nuremberg: Kelly Dawn Askin, War Crimes Against Women: Prosecution in international war crimes tribunals (The Hague: Kluwer, 1997), at 140–2. Rape was expressly mentioned in Control Council Law No. 10, and was included in both draft Codes, as well as in a much more elaborated form in the Rome Statute (which includes ‘[r]ape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity’ as both crimes against humanity, in Art. 7(1)(g), and war crimes, in Art. 8(2)(b)(xxii) and 8(2)(e)(vi)).

(92) Bassiouni Bassiouni (1999a), n. 89 above, 256.

(94) Ibid, at 246.

(95) Bassiouni, ‘Sources and Content’, in Bassiouni (1999b) vol. I

(96) Art. 7(2)(a) of the Rome Statute defines the threshold of crimes against humanity as including an attack on a civilian population ‘pursuant to or in furtherance of a State or organizational policy to commit such attack’.

(97) The Rome Statute states, in Art. 8(1), that the ICC ‘shall have jurisdiction in respect of war crimes in particular when committed as part of a plan or policy or as part of a large-scale commission of such crimes’.

(98) The Elements of Crimes, as adopted in draft by the PrepCom on 30 June 2000, require not that genocide be committed pursuant to a plan or policy, but as part of ‘a manifest pattern of similar conduct’: Finalized Draft Text of the Elements of Crimes, U.N. Doc. PCNICC/2000/INF/3/ Add.2 (6 July 2000), Element 4 of Art. 6 crimes. Such a pattern will often, but not always amount to the same thing.